EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement ("Amendment") is executed and
entered into by and among XXXXXXXX'X INC., a Delaware corporation (the
"Borrower"), Bank of America, N.A., in its capacity as administrative agent (the
"Administrative Agent"), the Lenders (as defined by the Credit Agreement,
defined below) party hereto (the "Lenders") and the Guarantors (as defined by
the Credit Agreement, defined below) (the "Guarantors"), effective as of April
12, 2002 (the "Amendment Effective Date"), as follows:
Recitals
a. The Borrower, the Administrative Agent, the Lenders and the
Guarantors are party to the certain Credit Agreement dated as of September 15,
1999, as amended by Amendment No.1 and Waiver dated March 7, 2001 (the "Credit
Agreement"). Terms defined by the Credit Agreement, where used in this
Amendment, shall have the same meanings as are prescribed by the Credit
Agreement.
b. The Borrower, the Administrative Agent, the Lenders and the
Guarantors have agreed to enter into this agreement on the terms specified
hereinbelow.
NOW THEREFORE, FOR VALUE RECEIVED, the Borrower, the Administrative
Agent, the Lenders and the Guarantors each hereby agrees as follows:
ARTICLE 1
Amendments
Section 1.1 Amendment to Certain Definitions. Effective as of the
Amendment Effective Date, each of the following definitions in Section 1.1 of
the Credit Agreement hereby is amended and restated to read as follows:
"Borrowing Base" means, as of any day, an amount equal to the
sum of (i) Sixty-five percent (65%) of Eligible Receivables, plus (ii)
Fifty percent (50%) of Eligible Inventory, minus (iii) $80 million
(representing a Borrowing Base reserve amount against which credit
support is provided under the Crescent Credit Agreement which reserve
amount shall be subject to readjustment at the collective discretion of
the Administrative Agent and the Required Lenders based on financial
information delivered to the Lenders pursuant to Section 7.1), minus
(iv) an amount equal to one month's rental expense for the Consolidated
Group, minus (v) an amount determined by the Administrative Agent in
its good faith discretion representing a reserve for obligations owing
under Hedging Agreements (determined and adjusted monthly on a
marked-to-market basis), in each case as set forth in the most recent
Borrowing Base Certificate delivered to the Administrative Agent and
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the Lenders in accordance with Section 7.1(d) (subject to adjustments
by the Administrative Agent made in good faith to better reflect the
actual state and condition of the Borrowing Base); provided, however,
that the foregoing advance rates against Eligible Receivables and
Eligible Inventory may be adjusted downward by the Administrative Agent
in its good faith discretion (and thereafter readjusted upward by the
Administrative Agent in its good faith discretion to rates not in
excess of the original advance rates). The Administrative Agent will
give prompt notice to the Borrower and the Lenders of any such
adjustment in the applicable advance rates.
"Permitted Investments" means Investments which are (i) cash
and Cash Equivalents; (ii) accounts receivable created, acquired or
made in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms; (iii) Investments consisting of
Capital Stock, obligations, securities or other Property received in
settlement of accounts receivable (created in the ordinary course of
business) from bankrupt obligors; (iv) Investments existing as of the
Closing Date and set forth in Schedule 8.6; (v) advances or loans to
directors, officers and employees in the ordinary course of business
for reasonable business expenses that do not exceed $1,000,000 in the
aggregate at any one time outstanding; (vi) advances or loans by the
Borrower to directors, officers and employees for the purchase of
Capital Stock in accordance with the terms of employee stock bonus
plans that do not exceed $2,500,000 in the aggregate at any one time
outstanding; (vii) advances or loans to customers and suppliers in the
ordinary course of business that do not exceed $1,000,000 in the
aggregate at any one time outstanding; (viii) Investments by members of
the Consolidated Group in their Subsidiaries and Affiliates existing on
the Closing Date; (ix) Investments by members of the Consolidated Group
in and to Domestic Credit Parties (other than Crescent or other members
of the Crescent Consolidated Group; (x) Investments in Crescent or
members of the Crescent Consolidated Group (A) consisting of
arrangements relating to service contracts, advertising and the like
and extended terms for payment thereof, without limit, (B) consisting
of Support Obligations to the extent permitted by Section 8.1, and (C)
consisting of an unsecured loan by the Borrower to Crescent in the
principal amount of $6,000,000, provided, that (i) the terms of such
loan are satisfactory to the Administrative Agent and the Required
Lenders, (ii) no principal or interest in respect of such loan shall be
payable or paid by Crescent or any other member of the Crescent
Consolidated Group, or received by the Borrower, until such time as all
"Obligations" as defined by the Crescent Credit Agreement have been
paid in full and all "Commitments" as defined by the Crescent Credit
Agreement have been terminated and (iii) all obligations of Crescent in
respect of such loan are subordinated in right of payment and claim to
the prior payment in full of all "Obligations" as defined by the
Crescent Credit Agreement, pursuant to a subordination agreement in
form and substance satisfactory to the Administrative Agent and the
Required Lenders; (xi) Investments which constitute Permitted
Acquisitions; (xii) Investments in Foreign Subsidiaries in an amount
not to exceed $1,000,000 in the aggregate (on a cost basis) at any one
time outstanding and (xiii)
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Investments of a nature not contemplated in the foregoing subsections
in an amount not to exceed $2,000,000 in the aggregate at any time
outstanding.
Section 1.2 Amendment to Section 11.6(a)(v). Section 11.6(a)(v) of the
Agreement hereby is amended and restated to read as follows:
(v) except as the result of or in connection with an Asset
Disposition permitted by Section 8.5 or otherwise expressly permitted
under the Collateral Documents, release or subordinate any Collateral
having a book value exceeding $1,500,000;
ARTICLE II
Miscellaneous
Section 2.1 Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of each of the following conditions precedent:
(a) the Administrative Agent shall have received this Amendment,
duly executed by the Borrower, the Guarantors, the Administrative Agent and the
Lenders;
(b) Payment to the Administrative Agent of all reasonable costs
and expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including the reasonable
fees and expenses of the Administrative Agent's legal counsel;
(c) After giving effect to this Amendment, the representations and
warranties contained herein, in the Credit Agreement and in all other Credit
Documents, as amended hereby, shall be true and correct in all material respects
as of the date hereof as if made on the date hereof (except those, if any, which
by their terms specifically relate only to a different date);
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements, documents
and instruments executed and/or delivered pursuant hereto, and all legal matters
incident thereto, shall be reasonably satisfactory to the Administrative Agent;
and
(e) No Default or Event of Default shall have occurred and be
continuing.
Section 2.2 Representations and Warranties. The Borrower and the
Guarantors each hereby represents and warrants to the Administrative Agent and
the Lenders that, as of the Amendment Effective Date (a) the execution, delivery
and performance of this Amendment and any and all agreements or documents
executed and/or delivered in connection herewith have been authorized by all
requisite corporate action on the part of the Borrower and the Guarantors and
will not violate the Borrower's or any such Guarantor's certificate of
incorporation or bylaws, (b) after giving effect to this Amendment, all
representations and warranties set forth in the Credit Agreement
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and in any other Credit Document are true and correct in all material respects
as if made again on and as of such date (except those, if any, which by their
terms specifically relate only to a different date), (c) no Default or Event of
Default has occurred and is continuing and (d) the Credit Agreement (as amended
by this Amendment), and all other Credit Documents are and remain legal, valid,
binding and enforceable obligations in accordance with the terms thereof except
as enforceability may be limited by applicable debtor relief laws and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law).
Section 2.3 No Claims or Offsets; Release. Neither the Borrower nor
any of the Guarantors has any counterclaims, offsets, credits or defenses to the
Credit Documents and the performance of its obligations thereunder, or if such
Person has any such claims, counterclaims, offsets, credits or defenses to the
Credit Documents or any transaction related to the Credit Documents, the same
are hereby waived, relinquished and released in consideration of this Amendment.
In consideration of the agreements of the Administrative Agent and the Lenders
under this Amendment, the Borrower and the Guarantors each hereby releases and
discharges the Administrative Agent and the Lenders from any and all claims or
causes of action, if any, known or unknown, based upon any facts or
circumstances in connection with the Credit Agreement may have occurred at any
time on or prior to the Amendment Effective Date.
Section 2.4 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit
Document shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Administrative Agent or any
Lender, or any closing, shall affect the representations and warranties or the
right of the Administrative Agent and the Lenders to rely upon them.
Section 2.5 Reference to Agreement. Each of the Credit Documents is
hereby amended so that any reference in such Credit Documents to the Credit
Agreement, whether direct or indirect, shall mean a reference to the Credit
Agreement as amended by this Amendment.
Section 2.6 Guarantors. The Guarantors join in the execution of this
Amendment for the purpose of acknowledging and consenting to the terms of this
Amendment and reaffirming their guaranty obligations under the Xxxxxxxx'x
Guaranty Agreement.
Section 2.7 General. Except as expressly provided by this Amendment,
all of the terms and provisions of the Credit Agreement and the other Credit
Documents remain in full force and effect. This Amendment, when signed by the
Borrower, each Guarantor and the Required Lenders as provided required by
Section 11.6 of the Credit Agreement (i) contains the entire agreement among the
parties and may not be amended or modified except in writing signed by all
parties, (ii) may be executed in any number of counterparts, each of which shall
be valid as an original and all of which shall be one and the same agreement,
and (iii) shall constitute a Credit Document. It shall not be necessary in
making proof of this Amendment to produce or account for more than one such
counterpart. A telecopy or other electronic transmission of any executed
counterpart shall be deemed valid as an original.
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THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers in several counterparts effective as
of the Amendment Effective Date specified in the preamble hereof.
BORROWER: XXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
GUARANTORS: XXXXXXXX'X MANAGEMENT CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXXX'X HOLDING CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
FI STORES LIMITED PARTNERSHIP,
a Georgia limited partnership
By: Xxxxxxxx'x Inc., its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
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XXXXXXXX'X FLORIDA PARTNERSHIP,
a Florida general partnership
By: Xxxxxxxx'x Management Corp.,
its managing partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
President
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FCJV HOLDING CORP.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
President
FCJV, L.P., a Delaware limited partnership
By: FCJV Holding Corp., its general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
President
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: SVP
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LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------------
Title: SVP
----------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
individually in its capacity as a Lender
and in its capacity as Documentation Agent
By: /s/ Xxxx Xxxxx
--------------------------------------------
Name: Xxxx Xxxxx
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Title: Duly Authorized Signatory
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FLEET RETAIL FINANCE INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
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Title: Vice President
-----------------------------------------
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. XxXxxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxxx
------------------------------------------
Title: Senior Vice President
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SUNROCK CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
------------------------------------------
Title: SVP
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LASALLE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------------------
Title: 1st VP
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THE PROVIDENT BANK
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: Assistant Vice President
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CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
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Title: First Vice President
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Second Amendment to Credit Agreement, Page 8
