AMENDMENT NO. 1 TO AND CONSENT UNDER CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO AND CONSENT UNDER CREDIT AGREEMENT (this "Amendment
No. 1") is made this 8 day of April, 1999 by and among xXXxX*s INC., a
Delaware corporation ("xXXxX*s") and certain of its subsidiaries listed on the
signature pages hereto under the heading "Existing Borrowers" (each, together
with xXXxX*s, individually and collectively, the "Existing Borrower(s)");
xXXxX*s Real Estate Holding Company, a Delaware corporation ("dREHC"); TSI Real
Estate Holding Company, a Delaware corporation ("TREHC," together with dREHC,
individually and collectively, "Additional Borrower(s)") (Additional Borrowers
together with Existing Borrowers, individually and collectively, "Borrower(s)");
iTurf Inc., f/k/a/ xXXxX*s Interactive Company, a Delaware corporation
("iTurf"), and FIRST UNION NATIONAL BANK, a national banking association (the
"Bank").
BACKGROUND
Existing Borrowers, iTurf and Bank entered into a Credit Agreement dated
December 7, 1998 (as amended hereby and as may be further amended from time to
time, the "Credit Agreement") to provide a revolving credit facility for the
general corporate purposes of the Borrowers, including working capital, and for
the issuance of letters of credit.
In connection with the simultaneous initial public offering of the shares
of common stock of iTurf, a Borrower under the Credit Agreement, Bank has agreed
to release iTurf from the Credit Agreement, the Pledge Agreement, the
Intellectual Property Security Agreement and the Security Agreement, and
Borrowers and Bank have agreed to add two new subsidiaries of xXXxX*s as
Borrowers under the Credit Agreement, and to make certain other amendments to
the Credit Agreement as set forth herein, subject to the terms and conditions
hereof.
In consideration of the foregoing and the promises and the agreements
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Definitions
a. General Rule. Unless otherwise defined herein, terms used herein
which are defined in the Credit Agreement shall have the respective
meanings assigned to them in the Credit Agreement.
b. Additional Definitions. The following definition is hereby added to
Section 1 of the Credit Agreement to read in its entirety as follows:
"xXXxX*s and its consolidated Subsidiaries" means xXXxX*s and its
consolidated Subsidiaries, other than iTurf Inc., f/k/a xXXxX*s
Interactive Company and any of its Subsidiaries.
"Amendment No. 1" means Amendment No. 1 to and Consent under
Credit Agreement dated April 8, 1999 by and among Borrowers and
Bank.
2. Amendment to Schedule 1 (Borrowers). Schedule 1 to the Credit Agreement
(Borrowers) is hereby amended and restated in its entirety as set forth on
Schedule 1 to this Amendment No. 1.
3. iTurf Releases.
(a) Subject to the terms and conditions hereof, Bank and Borrowers
hereby agree that simultaneously with the effectiveness of the registration
statement relating to the initial public offering (the "IPO") of 4,200,000
shares of class A common stock of iTurf Inc. (possibly increasing to
4,830,000 shares of class A common stock if the underwriters of the
offering exercise their overallotment option), iTurf shall cease to be a
Borrower under the Credit Agreement. As set forth in the Credit Agreement,
all Borrowers (which term shall thereafter no longer include iTurf) are and
shall remain jointly and severally liable to Bank for all obligations of
iTurf and the Borrowers to Bank incurred under the Credit Agreement.
(b) Paragraph 6.7 of the Credit Agreement prohibits the sale by a
Borrower of all or any portion of its assets to a person other than to a
Borrower or in the normal and ordinary course of business for value
received. In connection with the IPO, TSI Soccer Corporation will sell
certain of its assets identified on Exhibit A attached hereto (the "TSI
Assets") to iTurf for a purchase price no greater than $100,000 (the "TSI
Sale"). The Bank hereby consents to the TSI Sale.
(c) Pursuant to the Security Agreement and the Intellectual Property
Security Agreement, Existing Borrowers and iTurf granted a security
interest to Bank in the Collateral (for purposes of this Paragraph, as
defined in the Security Agreement) and the Intellectual Property Collateral
(as defined in the Intellectual Property Security Agreement), which
includes the TSI Assets and any and all assets owned by iTurf (the "iTurf
Assets"). Simultaneously with the effectiveness of the registration
statement relating to the IPO, Bank hereby releases its security interest
in the TSI Assets and the iTurf Assets. Bank will execute and deliver to
Borrowers UCC-3 termination statements and any additional documents
reasonably requested by Borrowers to effect the release.
(d) Pursuant to the Pledge Agreement, Existing Borrowers and iTurf
pledged, assigned and granted a security interest to Bank in the Collateral
(for purposes of this Paragraph, as defined in the Pledge Agreement), which
includes without limitation all shares of capital stock and/or other
securities of the Subsidiaries of each Existing Borrower. Simultaneously
with the effectiveness of the registration statement relating to the IPO,
Bank
-2-
hereby releases the pledge, assignment and security interest in its favor
in the shares of capital stock of iTurf and any of its Subsidiaries,
whether currently existing or hereafter formed or acquired and will deliver
the certificate(s) representing such capital stock to xXXxX*s upon the
effectiveness of this Amendment No. 1. Schedule A to the Pledge Agreement
is hereby amended and restated in its entirety as set forth on Exhibit B to
this Amendment No.1.
(e) Paragraph 6.2 of the Credit Agreement prohibits the Borrowers from
agreeing to become liable, directly or indirectly, for any indebtedness or
liability of another, whether or not contingent. Simultaneously with the
effectiveness of the registration statement relating to the IPO, xXXxX*s
and iTurf will enter into an Intercompany Indemnification Agreement in the
form attached as Exhibit C to this Amendment No. 1 (in such form, the
"Indemnification Agreement") whereby xXXxX*s will indemnify iTurf for
certain losses and third party claims as further described therein. Bank
hereby consents to xXXxX*s entering into the Indemnification Agreement.
(f) Paragraph 6.9 of the Credit Agreement prohibits payments of fees
to Affiliates of a Borrower other than on terms similar to an arms= length
transaction. Simultaneously with the effectiveness of the registration
statement relating to the IPO, xXXxX*s and certain of its Subsidiaries will
enter into certain agreements listed on Exhibit D attached hereto with
iTurf and one of its subsidiaries (the "iTurf Agreements"). Bank hereby
consents to xXXxX*s and certain of its Subsidiaries entering into the iTurf
Agreements.
4. Representations and Warranties. Borrowers, including without limitation
the Existing Borrowers and the Additional Borrowers, and iTurf, as applicable,
each hereby represent and warrant to Bank as follows:
a. Representations. Except as provided in Exhibit F to this Amendment
No.1 (which amends Exhibit C (Disclosure Pursuant to Representations and
Warranties) to the Credit Agreement), the representations and warranties in
Section 3 of the Credit Agreement are true and correct in all material
respects as of the date hereof (including as applied to Additional
Borrowers); there is no Event of Default or Default under the Credit
Agreement, as amended hereby; and there has been no material adverse change
in the financial condition or business of Borrowers (including Additional
Borrowers) from the date on which Borrowers last delivered financial
statements to Bank.
b. Power and Authority. Borrowers (including Additional Borrowers) and
iTurf each have the power and authority under the laws of each of their
states of incorporation or formation and under their articles or
certificates of incorporation and bylaws or articles of organization and
operating agreements to enter into and perform this Amendment No. 1 and the
other documents and agreements required hereunder (collectively, the
"Amendment Documents"); all actions (corporate or otherwise) necessary or
appropriate for the execution and performance by Borrowers (including
Additional Borrowers) and iTurf of the Amendment Documents have been taken;
and the Amendment Documents and the Credit Agreement, as amended, each
constitute the valid and binding obligations of Borrowers (including
Additional Borrowers), and iTurf, as applicable, enforceable in accordance
with their respective terms.
-3-
c. No Violations of Law or Agreements. The making and performance of
the Amendment Documents by Borrowers (including Additional Borrowers) and
iTurf will not (i) violate any provisions of any law or regulation,
federal, state or local, or the articles or certificates of incorporation
or bylaws of any Borrower (including any Additional Borrower) or (ii)
result in any breach or violation of, or constitute a default or require
the obtaining of any consent under, any agreement or instrument by which
any Borrower (including any Additional Borrower), iTurf, or its property
may be bound.
5. Conditions to Effectiveness of Amendment. This Amendment No. 1 shall be
effective upon Bank=s receipt of the following documents, each in form and
substance satisfactory to Bank:
a. Amendment No. 1. This Amendment No. 1 duly executed by Borrowers,
iTurf and Bank.
b. Officer=s Certificate. A certificate from the Chief Financial
Officer of xXXxX*s certifying as to various matters relating to and the
effectiveness of the registration statement relating to the IPO.
c. Joinder to Promissory Note. The Joinder to Promissory Note, duly
executed by Additional Borrowers, in the form of Exhibit E attached hereto.
d. Opinion of Counsel. An opinion of counsel to Additional Borrowers
in form and substance satisfactory to Bank.
e. Authorization Documents. A certificate of the secretary of each
Additional Borrower attaching and certifying as to (i) the certificate or
articles of incorporation and bylaws of such Additional Borrower; (ii)
resolutions or other evidence of authorization by the board of directors of
each Additional Borrower authorizing its execution and full performance of
this Amendment No. 1, the other Amendment Documents and all other documents
and actions required hereunder; and (iii) an incumbency certificate setting
forth the name, title and specimen signature of each officer of such
Additional Borrower who is authorized to execute the Amendment Documents on
behalf of such Additional Borrower.
f. UCC-1 Financing Statements. Such additional financing statements
(duly executed by Additional Borrowers as debtor) as are necessary or, in
the opinion of Bank desirable, to perfect or continue to perfect the
security interests granted by the Security Agreement, Intellectual Property
Security Agreement and Pledge Agreement.
g. Other Documents. Such additional documents as Bank may reasonably
request.
6. Joinder of Additional Borrowers. Each Additional Borrower is hereby made
a Borrower under the Credit Agreement, and in furtherance thereof:
-4-
a. Each Additional Borrower hereby expressly agrees that it shall be
bound by all terms and conditions of the Credit Agreement and shall be
liable, jointly and severally with the Existing Borrowers, for all
indebtedness and obligations thereunder and under the Note and the other
Loan Documents.
b. Each Additional Borrower hereby expressly agrees that it shall be
bound by all terms and conditions of the Security Agreement, the
Intellectual Property Security Agreement, the Pledge Agreement, the Master
L/C Agreement, the Electronic L/C Agreement and all other Loan Documents.
Each Additional Borrower hereby grants to Bank a security interest in all
the Collateral and any part thereof as security for the payment of all
Liabilities and Obligations (as such terms are defined in the Security
Agreement and the Pledge Agreement respectively) and a security interest in
all the Intellectual Property Collateral and any part thereof as security
for the payment of all Debtor=s Obligations (as such terms are defined in
the Intellectual Property Security Agreement).
x. xXXxX*s hereby expressly agrees to be bound by all the terms and
conditions of the Pledge Agreement with respect to each Additional Borrower
and pledges to Bank a security interest in all shares of capital stock
and/or other securities of each Additional Borrower in accordance with and
under the terms of the Pledge Agreement. Schedule A to the Pledge Agreement
is hereby amended and restated in its entirety as set forth on Exhibit B to
this Amendment No. 1.
7. Affirmations. Borrowers (including Additional Borrowers) hereby: (i)
affirm all the provisions of the Credit Agreement, as amended by this Amendment
No. 1, and (ii) agree that the terms and conditions of the Credit Agreement
shall continue in full force and effect as supplemented and amended hereby.
8. Disclosure. Exhibit C to the Credit Agreement (Disclosure Pursuant to
Representations and Warranties) is hereby amended and restated as set forth on
Exhibit F to this Amendment No. 1, which, among other things, reflects matters
related to the Additional Borrowers.
9. Bank Certificate. Upon satisfaction of the conditions described in
Paragraph 5 hereof, Bank shall deliver a certificate to iTurf certifying that
this Amendment No. 1 has become effective.
10. Miscellaneous.
a. Borrowers agree to pay or reimburse Bank for all reasonable fees
and expenses (including without limitation reasonable fees and expenses of
counsel) incurred by Bank in connection with the preparation, execution and
delivery of this Amendment No. 1.
b. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
-5-
c. All terms and provisions of this Amendment No. 1 shall be for the
benefit of and be binding upon and enforceable by the respective successors
and assigns of the parties hereto.
d. This Amendment No. 1 may be executed in any number of counterparts
with the same effect as if all the signatures on such counterparts appeared
on one document and each such counterpart shall be deemed an original.
e. Except as expressly set forth herein, the execution, delivery and
performance of this Amendment No. 1 shall not operate as a waiver of any
right, power or remedy of Bank under the Credit Agreement and the
agreements and documents executed in
-6-
connection therewith or constitute a waiver of or consent to any further
provision thereof, and the consent granted hereby is limited to the matters
set forth herein.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 the
day and year first above written.
EXISTING BORROWERS:
xXXxX*s INC.
By: ___________________________
Name:
Title:
xXXxX*s DISTRIBUTION COMPANY
By: ___________________________
Name:
Title:
xXXxX*s FOREIGN SALES CORPORATION
By: ___________________________
Name:
Title:
xXXxX*s OPERATING COMPANY
By: ______________________________
Name:
Title:
[EXECUTIONS CONTINUED]
-7-
xXXxX*s PROPERTIES INC.
By: ______________________________
Name:
Title:
xXXxX*s RETAIL COMPANY
By: ______________________________
Name:
Title:
SCREEEM! INC.
By: ______________________________
Name:
Title:
STORYBOOK INC.
By: ______________________________
Name:
Title:
TSI SOCCER CORPORATION
By: ______________________________
Name:
Title:
TSI RETAIL COMPANY
By: ______________________________
Name:
Title:
[EXECUTIONS CONTINUED]
-8-
ADDITIONAL BORROWERS:
xXXxX*s REAL ESTATE HOLDING COMPANY
By: ______________________________
Name:
Title:
TSI REAL ESTATE HOLDING COMPANY
By: ______________________________
Name:
Title:
BANK:
FIRST UNION NATIONAL BANK
By: ______________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
iTURF INC., f/k/a/ xXXxX*s INTERACTIVE COMPANY
By: ______________________________
Name:
Title:
-9-
