EXHIBIT 10.15
EXECUTION COPY
FIFTH AMENDMENT dated as of September 12, 2002 (this "Amendment") to
the Amended and Restated Credit Agreement dated as of April 27, 2001 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the ("Credit Agreement") among MTS, INCORPORATED, a California corporation
("MTS"); TOWER RECORDS KABUSHIKI KAISHA, a Japanese corporation ("TRKK", and
together with MTS, the "Borrowers"); the LENDERS party thereto (the "Lenders");
and JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank), as Administrative
Agent (in such capacity, the "Agent").
WHEREAS, the Borrowers, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Borrowers have requested that the Maturity Date under the
Credit Agreement be extended to September 30, 2002 and the Lenders party hereto
are willing to amend the Credit Agreement on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings given to them in the Credit Agreement, as amended
hereby.
SECTION 2. Amendments to the Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended by amending and restating the definition of
"Maturity Date" in its entirety as follows:
"Maturity Date means September 30, 2002."
SECTION 3. Effect of Amendment. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights or remedies of the Lenders, the
Collateral Agent or the Administrative Agent under the Credit Agreement, as
amended by this Amendment, or any other Loan Document, and shall not alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement, as amended by this
Amendment, or any other Loan document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement, as amended by this
Amendment, or any other Loan Document in similar or different circumstances.
This Amendment shall apply and be effective only with respect to the provisions
of the Credit Agreement set forth herein. After the date hereof, any reference
to the Credit Agreement shall
mean the Credit Agreement as modified hereby. This Amendment shall constitute a
"Loan Document" for all purposes of the Credit Agreement and the other Loan
Documents.
SECTION 4. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Agent and the Lenders as of the date hereof as
follows:
(a) No Default or Event of Default shall have occurred and be
continuing after giving effect to this Amendment.
(b) The execution, delivery and performance by each of the Borrowers of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitute the legal, valid and binding obligation of
each of the Borrowers, enforceable against them in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
(c) All representations and warranties of the Borrowers contained in
Article III of the Credit Agreement are true and correct as of the date hereof
(except for representations or warranties that expressly relate to an earlier
date, in which case such representations and warranties are true and correct as
of such earlier date).
SECTION 5. Effectiveness. This Amendment shall become effective
following receipt by the Agent of counterparts hereof duly executed and
delivered by the Borrowers and each of the Lenders.
SECTION 6. Costs and Expenses. Each Borrower hereby agrees, jointly and
severally, to reimburse the Agent for its out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Xxxxx & Xxxxx, counsel for the Agent.
SECTION 7. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which together shall constitute a single instrument. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9. Submission to Jurisdiction. The provisions of Section 9.09
of the Credit Agreement shall apply mutates mutandis to this Amendment and any
action or proceeding in respect hereof.
SECTION 10. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
MTS, INCORPORATED
By
/s/ XxXxxxxx X. Xxxxxxx
-----------------------------
Name: XxXxxxxx X. Xxxxxxx
Title: Secretary
TOWER RECORDS KABUSHIKI KAISHA,
By
/s/ XxXxxxxx X. Xxxxxxx
-----------------------------
Name: XxXxxxxx X. Xxxxxxx
Title: Director
JPMORGAN CHASE BANK (f/k/a THE
CHASE MANHATTAN BANK),
individually and as
Administrative Agent,
By
/s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
BNP Paribas
by:
/s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
California Bank & Trust
by:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Lloyds TSB Bank plc
by:
/s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Credit Services
/s/ Xxxxxxx X.X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X.X. Xxxxxxx
Title: Assistant Director
Credit Services
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
The Mitsubishi Trust and Banking
Corporation
by:
/s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Deputy General Manager
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Mizuho Corporate Bank, Ltd.
(f/k/a The Fuji Bank, Limited)
by:
/s/ Xxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Societe Generale
by:
/s/ R. Xxxxx Xxxxxx
-----------------------------
Name: R. Xxxxx Xxxxxx
Title: Director Corporate Banking
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Sumitomo Mitsui Banking Corporation
by:
/s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: General Manager
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
UFJ Bank Limited
by:
/s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Union Bank of
California, NA
by:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
U.S. Bank National Association
by:
/s/ Xxxx X. Esnob
-----------------------------
Name: Xxxx X. Esnob
Title: Vice President
SIGNATURE PAGE TO
FIFTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Wachovia Bank, National Association
by:
/s/ Xxxxxxx XxXxxxxx
-----------------------------
Name: Xxxxxxx XxXxxxxx
Title: Director