AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment No. 5 (this "Amendment") to the "Credit Agreement"
(defined below) is entered into as of July 25, 2000 by and among XXXXXXXXX XXXXX
CORPORATION, an Illinois corporation (the "Borrower"), the financial
institutions party to the Credit Agreement (collectively, the "Lenders") and
BANK ONE, NA, formerly known as THE FIRST NATIONAL BANK OF CHICAGO, as one of
the Lenders and in its capacity as contractual representative (the "Agent") on
behalf of itself and the other Lenders.
RECITALS:
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain Amended and Restated Credit Agreement dated as of July 2, 1997, as
amended (the "Credit Agreement");
WHEREAS, the Borrower has notified the Lenders and the Agent that the
Borrower wishes to amend the Credit Agreement in certain respects; and
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions herein set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to such terms in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Upon the effectiveness of this
Amendment in accordance with the provisions of SECTION 3 below, the Credit
Agreement is hereby amended as follows:
(a) The definition of "AGGREGATE REVOLVING LOAN COMMITMENT" set forth
in SECTION 1.1 of the Credit Agreement is hereby amended to delete therefrom the
second sentence thereof and to substitute therefor the following: "The Aggregate
Revolving Loan Commitment for the period beginning July 25, 2000 and ending
December 31, 2000 is $30,000,000. The Aggregate Revolving Loan Commitment
thereafter is $20,000,000."
(b) The definition of "APPLICABLE COMMITMENT FEE RATE" set forth in
SECTION 1.1 of the Credit Agreement is hereby amended in its entirety as
follows:
"APPLICABLE COMMITMENT FEE RATE" means, from and after July 25, 2000, a
per annum rate equal to 0.50%.
(c) The definition of "APPLICABLE LETTER OF CREDIT FEE RATE" set forth
in SECTION 1.1 of the Credit Agreement is hereby amended in its entirety as
follows:
"APPLICABLE LETTER OF CREDIT FEE RATE" means, from and after July 25,
2000, a per annum rate equal to three and one-half percent (3.5%).
(d) The definition of "BORROWING BASE" set forth in SECTION 1.1 of the
Credit Agreement is hereby amended to delete therefrom the phrase "(C) for the
period beginning June 30, 2000 and ending July 25, 2000, 65% of the Gross Amount
of Eligible Inventory consisting of packaged candy, and subsequent to July 25,
2000, 50% of such Gross Amount PLUS (D) for the period beginning June 30, 2000
and ending July 25, 2000, 65% of the Gross Amount of Canadian Eligible Inventory
consisting of packaged candy, and subsequent to July 25, 2000, 50% of such Gross
Amount." and to substitute therefor the following:
(C) 65% of the Gross Amount of Eligible Inventory consisting of
packaged candy PLUS (D) 65% of the Gross Amount of Canadian Eligible Inventory
consisting of packaged candy.
(e) The definition of "CANADIAN ELIGIBLE RECEIVABLES" set forth in
SECTION 1.1 of the Credit Agreement is hereby amended to delete therefrom the
phrase "that during the period beginning June 30, 2000 and ending July 25, 2000"
and to substitute therefor the phrase "that from and after June 30, 2000".
(f) The definition of "ELIGIBLE RECEIVABLES" set forth in SECTION 1.1
of the Credit Agreement is hereby amended to delete therefrom the phrase "that
during the period beginning June 30, 2000 and ending July 25, 2000" and to
substitute therefor the phrase "that from and after June 30, 2000".
(g) The definition of "REVOLVING LOAN COMMITMENT" set forth in Section
1.1 of the Credit Agreement is hereby amended in its entirety as follows:
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit not exceeding the amount set forth on Exhibit A to this Agreement
opposite its name thereon, as such amount may be modified from time to time
pursuant to the terms hereof; PROVIDED, HOWEVER, that notwithstanding the
amounts set forth on EXHIBIT A hereto, for the period beginning July 25, 2000
and ending December 31, 2000, the "Revolving Loan Commitment" for Bank One, NA
shall equal $15,000,000, the "Revolving Loan Commitment" for Fleet Business
Credit Corporation shall equal $15,000,000, and the "Aggregate Revolving Loan
Commitment" shall equal $30,000,000.
(h) The definition of "REVOLVING NOTE" set forth in SECTION 1.1 of the
Credit Agreement is hereby amended to delete therefrom the period at the end
thereof and to substitute the following therefor: "PROVIDED, HOWEVER, that for
the period beginning July 25, 2000 and ending December 31, 2000, each Lender's
promissory note shall be deemed to be in an amount equal to $15,000,000."
(i) SECTION 2.2 of the Credit Agreement is hereby amended to insert
immediately at the end thereof the following:
2
"The Borrower hereby agrees that it shall repay in full the aggregate
principal balance of the Loans outstanding on December 26, 2000 and hereby
agrees that it shall not request from any Lender the extension of any Loan, nor
shall any Lender extend any Loan, during the period beginning December 26, 2000
and ending December 31, 2000. Each of the failure to repay in full such
aggregate principal balance on December 26, 2000 and the extension of any Loan
during the aforementioned period shall constitute a Default under SECTION
7.1(a)(i) on the date of the occurrence thereof."
(j) SECTION 6.3(A)(xii) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following: "Indebtedness not otherwise
permitted pursuant to CLAUSES (i) through (xi) of this SECTION 6.3 provided that
such Indebtedness does not exceed $1,000,000."
(k) The definition of "EBITDA" set forth in SECTION 6.4(A) of the
Credit Agreement is hereby amended to delete therefrom the phrase "PLUS all
amounts deducted in determining such Consolidated Net Income" and to substitute
therefor the phrase "PLUS costs and/or expenses in an aggregate amount no
greater than $500,000 incurred by the Borrower from and after June 1, 2000 in
connection with its extension or issuance of severance compensation and/or
benefits to terminated employees PLUS all amounts deducted in determining such
Consolidated Net Income".
(l) SECTION 6.4(B) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
"(B) MINIMUM EBITDA. The Borrower and its Subsidiaries on a
consolidated basis shall not permit EBITDA to be less than the amounts set forth
below:
Minimum EBITDA Test Date
--------------------------------------- -----------------------
$(5,125,000) August 26, 2000
--------------------------------------- -----------------------
$(4,125,000) November 25, 2000
--------------------------------------- -----------------------
$23,375,000 February 24, 2001
--------------------------------------- -----------------------
For each test date referenced in this SECTION 6.4(B), EBITDA shall be
determined on such test date for the period beginning June 1, 2000 and ending on
such test date."
(m) SECTION 6.4(C) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(C) CAPITAL EXPENDITURES. The Borrower shall not expend or be committed
to expend, nor shall it permit any of its Subsidiaries to expend or be committed
to expend, for Capital Expenditures, in the aggregate for the Borrower and its
Subsidiaries, in excess of the amounts set forth below:
3
Maximum Capital Expenditure Test Date
--------------------------------------- -----------------------
$1,750,000 August 26, 2000
--------------------------------------- -----------------------
$3,500,000 November 25, 2000
--------------------------------------- -----------------------
$5,250,000 February 24, 2001
--------------------------------------- -----------------------
For each test date referenced in this SECTION 6.4(C), the amount of
Capital Expenditures shall be determined on such test date for the period
beginning June 1, 2000 and ending on such test date.
(n) EXHIBIT A to the Credit Agreement is hereby deleted therefrom and
the attached EXHIBIT A is hereby substituted therefor.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
and be deemed effective as of the date hereof (the "Effective Date") if, and
only if, the Agent shall have received each of the following:
(a) four (4) duly executed originals of this Amendment from
the Borrower, the Agent and the Lenders;
(b) an amendment and arrangement fee of $25,000 for the
ratable benefit of the Lenders;
(c) Reaffirmation of Guaranty executed by Xxxxxx May Holdings,
Inc., Sweet Factory, Inc., Sweet Factory Group, Inc., SF Candy Company
and SF Properties, Inc.; and
(d) written certification from an officer of the Borrower that
(i) on the Effective Date, no Default or Unmatured Default has occurred
and is continuing and (ii) execution, delivery and effectiveness of
this Amendment do not and will not conflict with the terms and
conditions of the Senior Note Indenture and do not and will not trigger
an "Event of Default" under the Senior Note Indenture.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
4.1 The Borrower represents and warrants as of the date hereof that:
(a) Its execution, delivery and performance of this Amendment are
within its corporate powers, have been duly authorized by all necessary
corporate action and do not require any consent or approval which has not
been obtained and
(b) This Amendment and the Credit Agreement as amended hereby are its
legal, valid and binding obligations, enforceable in accordance with their
respective terms, except as
4
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by
general equitable principles.
4.2 The Borrower affirms that the representations and warranties
contained in the Credit Agreement are true and correct as of the Effective Date.
4.3 The Borrower affirms that each of the Collateral Documents is in
full force and effect as of the date hereof and that the Collateral Documents
secure the payment in full of the Secured Obligations as such Secured
Obligations may increase as a result of this Amendment No. 5.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
5.1 Upon the effectiveness of this Amendment pursuant to SECTION 3
hereof, on and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import and
each reference to the Credit Agreement in each Loan Document shall mean and be a
reference to the Credit Agreement as modified hereby.
5.2 Except as specifically waived or amended herein, all of the terms,
conditions and covenants of the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
5.3 The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of (a) any right,
power or remedy of any Lender or the Agent under the Credit Agreement or any of
the Loan Documents, or (b) any Default or Unmatured Default under the Credit
Agreement.
6. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
8. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
5
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
executed this Amendment No. 5 as of the date first above written.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxxx
----------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Executive Officer
BANK ONE, NA, formerly known as The First National
Bank of Chicago, individually and as Agent
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET BUSINESS CREDIT CORPORATION, formerly
known as Sanwa Business Credit Corporation
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Agreed and acknowledged
this 25th day of July, 2000
BANK ONE CANADA, formerly
known as First Chicago NBD Bank,
Canada
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
EXHIBIT A
TO
AMENDED AND RESTATED CREDIT AGREEMENT
Loan Commitments
REVOLVING LOAN COMMITMENTS
Lender Amount of Revolving Loan % of Revolving Loan
Commitment Commitment
----------------------------------------------------------------------------------------
Bank One, NA, formerly 10,000,000 50%
known as The First National
Bank of Chicago
----------------------------------------------------------------------------------------
Fleet Business Credit $10,000,000 50%
Corporation
----------------------------------------------------------------------------------------
TOTAL $20,000,000 100%
-----
----------------------------------------------------------------------------------------
