EXHIBIT 10.3
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
March 11, 2003, by and among XXXX, INC., a Delaware corporation (the "Company"),
certain of its Subsidiaries from time to time party to the Credit Agreement
referred to below (collectively with the Company, the "Borrowers"), the Lenders
from time to time party to the Credit Agreement referred to below, and WACHOVIA
BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative
Agent for the Lenders (the "Administrative Agent").
STATEMENT OF PURPOSE
The Borrowers, the Lenders and the Administrative Agent are parties to
the Credit Agreement, dated as of June 28, 2002 (as amended, restated or
otherwise modified from time to time, the "Credit Agreement") pursuant to which
the Lenders have extended certain credit facilities to the Borrowers;
The Borrowers have requested that the Administrative Agent and the
Lenders enter into a certain amendment to the Credit Agreement;
Subject to the terms and conditions of this Amendment the
Administrative Agent and the Lenders are willing to agree to the requested
amendment.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
SECTION 1. Definitions. All capitalized terms not defined herein shall
have the meanings assigned thereto in the Credit Agreement.
SECTION 2. Amendment. The Credit Agreement is hereby amended in the
following manner:
(a) Section 10.6 of the Credit Agreement is hereby amended by adding a
new subsection "(c)" immediately after existing subsection "(b)" as follows and
by reordering existing subsection "(c)" as subsection "(d)":
"(c) the Company may purchase, redeem, retire or otherwise acquire,
directly or indirectly shares of its capital stock in an amount not to exceed
$50,000,000 in the aggregate during any consecutive twelve (12) month period
(provided that no Default or Event of Default shall have occurred and be
continuing both before and after giving effect to such purchase, redemption,
retirement or acquisition."
SECTION 3. Representations and Warranties. By its execution hereof, and
after giving effect to this Amendment, the Borrowers hereby certify that: (a)
each of the the representations and warranties contained in the Credit Agreement
are true and correct as of the First
Amendment Effective Date (as defined below) with the same effect as if made on
and as of such date; except for any representation and warranty made as of an
earlier date, which representation and warranty shall remain true and correct as
of such earlier date, (b) no Default or Event of Default has occurred and is
continuing, and (c) the execution, delivery and performance of this Amendment
have been authorized by all requisite corporate action on the part of the
Borrowers and that this Amendment and each other document executed in connection
therewith has been duly executed and delivered by the duly authorized officers
of the Borrowers and constitutes the legal, valid and binding obligation of each
Borrower enforceable in accordance with its terms.
SECTION 4. Effectiveness. This Amendment shall become effective on the
date (such date, the "First Amendment Effective Date") upon which each of the
following conditions shall have been satisfied:
(a) Execution of Amendment. The receipt by the Administrative Agent of
a duly authorized original of this Amendment executed by all of the parties
hereto.
(b) Other Documents. The receipt by the Administrative Agent of all
other documents, certificates and other instruments reasonably requested by the
Administrative Agent or the Lenders with respect to the transactions
contemplated by this Amendment.
SECTION 5. Limited Amendment. Except as expressly provided in this
Amendment, the Credit Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. This Amendment shall not be
deemed or otherwise construed (a) to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or (b) to prejudice any other right or
remedies which the Administrative Agent or the Lenders may now have or may have
in the future under or in connection with the Credit Agreement or the Loan
Documents or any of the instruments or agreements referred to therein, as the
same may be amended, restated or otherwise modified from time to time or (c) to
be a commitment or any other undertaking or expression of any willingness to
engage in any further discussion with the Borrowers or any other person, firm or
corporation with respect to any waiver, amendment, modification or any other
change to the Credit Agreement or the Loan Documents or any rights or remedies
arising in favor of the Lenders or the Administrative Agent, or any of them,
under or with respect to any such documents or (d) to be a waiver of, or consent
to or a modification or amendment of, any other term or condition of any other
agreement by and among the Borrowers and the Administrative Agent or any other
Lender.
SECTION 6. Confirmation of all Loan Documents. Each of the Borrowers
hereby expressly consents to the modifications and amendments set forth in this
Amendment. Each of the Borrowers, (a) reaffirms all of its respective covenants,
representations, warranties and other obligations set forth in the Credit
Agreement and the other Loan Documents to which it is a party and (b)
acknowledges, represents and agrees that its respective covenants,
representations, warranties and other obligations set forth in the Credit
Agreement and the other Loan Documents to which it is a party remain in full
force and effect.
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SECTION 7. Expenses. The Borrowers shall pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
SECTION 8. Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
SECTION 9. Governing Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 10. Fax Transmission.A facsimile, telecopy or other
reproduction of this Amendment may be executed by one or more parties hereto,
and an executed copy of this Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] XXXX, INC., as a Borrower
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: President
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BELK ADMINISTRATION COMPANY, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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BELK INTERNATIONAL, INC., as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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XXXX STORES SERVICES, INC., as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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XXXX-XXXXXXX COMPANY, GREENVILLE,
SOUTH CAROLINA, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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THE XXXX CENTER, INC, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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UNITED ELECTRONIC SERVICES, INC., as a
Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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BELK ACCOUNTS RECEIVABLE LLC, as a
Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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XXXX STORES OF VIRGINIA LLC, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
-------------------------------
Title: President
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BELK GIFT CARD COMPANY LLC, as a Borrower
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
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Title: President
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[Signature pages continue]
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent and Lender
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
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Title: Director
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BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By: /s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
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Title: Vice President
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BRANCH BANKING AND TRUST COMPANY,
as Documentation Agent and Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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RBC CENTURA BANK
By: /s/ X. Xxxxxx Xxxxx
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Name: X. Xxxxxx Xxxxx
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Title: Senior Vice President
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SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Managing Director
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COMPASS BANK
By: /s/ Xxxxx X. XxXxx
--------------------------------------
Name: Xxxxx X. XxXxx
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Title: Vice President
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CAROLINA FIRST BANK
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
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Title: Executive Vice President
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