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FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is da xxx
as of July 21, 1998 by and among HOMEBASE, INC., THE FIRST NATIONAL BANK OF
CHICAGO, BANKBOSTON, N.A., XXXXX FARGO BANK, N.A., SANWA BANK CALIFORNIA and
FIRST UNION NATIONAL BANK.
RECITALS
WHEREAS, certain of the parties hereto are parties to that
certain Credit Agreement dated as of July 9, 1997 (as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement";
capitalized terms used but not otherwise defined herein having the definitions
provided therefor in the Credit Agreement); and WHEREAS, the parties hereto
desire to amend the Credit Agreement on the terms and conditions herein set
forth. NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:1. Amendment to Credit Agreement. Subject to the terms and
conditions set forth in Section 2 of this Amendment, upon the Effective Time (as
hereinafter defined), the Credit Agreement is hereby amended as follows: (i) The
definition of "Aggregate Commitment" in Article I of the Credit Agreement is
hereby amended by deleting such definition in its entirety and inserting the
following in its stead: "Aggregate Commitment" means $105,000,000, as such
amount may be reduced from time to time pursuant to the terms hereof. (ii) The
definition of "Lenders" in Article I of the Credit Agreement is hereby amended
by deleting such definition in its entirety and inserting the following in its
stead:"Lenders" means the lending institutions on Schedule 1 of this Agreement
and their respective successors and assigns. (iii) The definition of
"Termination Date" in Article I of the Credit Agreement is hereby amended by
deleting such definition in its entirety and inserting the following in its
stead: "Termination Date" means July 9, 2001, or such earlier date on which the
Agreement is terminated by the parties hereto. (iv) Section 6.1(b), Section
6.1(c) and Section 6.1(f) of the Credit Agreement are hereby amended by
inserting the words "or Treasurer" after the words "chief financial officer"
where the words "chief financial officer" appear in each of such Sections. (v)
The Credit Agreement is hereby amended by deleting Schedule 1 attached thereto
and inserting as Schedule 1, the document attached hereto as "Schedule 1." 2.
Conditions. The effectiveness of the amendments stated in this Amendment is
subject to on or prior to the date hereof, that the following conditions shall
have been satisfied in a manner, and in form and substance, as the case may be,
reasonably acceptable to the Lenders: (i) Amendment. This Amendment shall have
been duly executed by each of the parties signatory hereto and delivered to
Agent. (ii) No Default. No Default or Event of Default under the Credit
Agreement, as amended hereby, shall have occurred and be continuing. (iii)
Warranties and Representations. The warranties and representations of the
Borrower contained in this Amendment, the Credit Agreement, as amended hereby,
and the other Loan Documents shall be true and correct as of the date hereof,
with the same effect as though made on such date, except to the extent that such
warranties and representations expressly relate to an earlier date, in which
case such warranties and representations shall have been true and correct as of
such earlier date. (iv) Reaffirmation of Guaranty. Each Real Estate Subsidiary
and Operating Subsidiary shall have executed the Reaffirmation of Guaranty in
the form of Exhibit A hereto. (v) Fees. (A) The Borrower shall have paid to the
Agent (1) for the account of each of The First National Bank of Chicago,
BankBoston, N.A. and Xxxxx Fargo Bank, National Association an amount equal to
12 1/2 basis points multiplied by the Commitment of such Lender as set forth on
Schedule 1 attached to this Amendment and (2) for the account of each of The
First Union National Bank and Sanwa Bank California an amount equal to 6 1/4
basis points multiplied by the Commitment of such Lender as set forth on
Schedule 1 attached to this Amendment and (B) each of First Union National Bank
and Sanwa Bank California shall have each received an additional $18,750 from
money remitted to the Agent pursuant to that certain Assignment and Acceptance
Agreement dated the date hereof by and between The Sumitomo Bank, Limited and
The First National Bank of Chicago.The Effective Time of this Amendment shall be
5:05 p.m. Chicago time, July 21, 1998; provided that all of the above events
shall have occurred prior to that time. If the Effective Time has not occurred
by July 24, 1998, this Amendment shall be of no force and effect.3. Continuing
Credits. Notwithstanding this Amendment, the Loans owing to Lenders by Borrower
under the Credit Agreement that remain outstanding as of the date hereof shall
constitute continuing Obligations of the Borrower under the Credit Agreement and
this Amendment shall not be deemed to evidence or result in a novation, or
repayment and reborrowing, of such Loans.4. Notes. The Borrower covenants and
agrees to provide new Notes to the applicable Lenders.5. Miscellaneous. (a)
Captions. Section captions used in this Amendment are for convenience only, and
shall not affect the construction of this Amendment. (b) Governing Law. THIS
AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS. Whenever possible each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment. (c) Counterparts. This Amendment may be
executed in any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
(d) Successors and Assigns. This Amendment shall be binding upon, and shall
inure to the sole benefit of the Borrower, Agent and Lenders, and their
respective successors and assigns. (e) References. Any reference to the Credit
Agreement contained in any notice, request, certificate, or other document
executed concurrently with or after the execution and delivery of this Amendment
shall be deemed to include this Amendment unless the context shall otherwise
require. (f) Continued Effectiveness. Notwithstanding anything contained herein,
the terms of this Amendment are not intended to and do not serve to effect a
novation as to the Credit Agreement; instead, it is the express intention of the
parties hereto to reaffirm the Obligations created under the Credit Agreement
which is evidenced by the Notes. The Credit Agreement, as amended hereby, and
each of the other Loan Documents remains in full force and effect. (g) Costs and
Expenses. Borrower affirms and acknowledges that Section 9.7 of the Credit
Agreement applies to this Amendment and the transactions and agreements and
documents contemplated hereunder.6. Representations and Warranties. The Borrower
represents and warrants to Agent and Lenders that the execution, delivery and
performance by the Borrower of this Amendment are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate action
(including, without limitation, all necessary shareholder approval) of the
Borrower, do not require any governmental approvals, consents or filings and do
not and will not contravene or conflict with any provision of law applicable to
the Borrower, the certificate of incorporation or bylaws of the Borrower or any
order, judgment or decree of any court or other agency of government or any
contractual obligation binding upon the Borrower, and this Amendment, the Credit
Agreement, as amended hereby, and each Loan Document is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms and that the conditions set forth in Sections 2(ii)
and (iii) hereof are true, correct and complete as of the Effective Time.
[signature pages follow]
IN WITNESS WHEREOF, this Fourth Amendment to Credit Agreement has been
duly executed and delivered as of the day and year first above written. FOURTH
AMENDMENT TO CREDIT AGREEMENT This FOURTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") is dated as of July 21, 1998 by and among HOMEBASE, INC., THE FIRST
NATIONAL BANK OF CHICAGO, BANKBOSTON, N.A., XXXXX FARGO BANK, N.A., SANWA BANK
CALIFORNIA and FIRST UNION NATIONAL BANK.RECITALS WHEREAS, certain of the
parties hereto are parties to that certain Credit Agreement dated as of July 9,
1997 (as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"; capitalized terms used but not otherwise
defined herein having the definitions provided therefor in the Credit
Agreement); and WHEREAS, the parties hereto desire to amend the Credit Agreement
on the terms and conditions herein set forth. NOW, THEREFORE, in consideration
of the premises and the mutual covenants hereinafter contained, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:1. Amendment to Credit
Agreement. Subject to the terms and conditions set forth in Section 2 of this
Amendment, upon the Effective Time (as hereinafter defined), the Credit
Agreement is hereby amended as follows: (i) The definition of "Aggregate
Commitment" in Article I of the Credit Agreement is hereby amended by deleting
such definition in its entirety and inserting the following in its stead:
"Aggregate Commitment" means $105,000,000, as such amount may be reduced from
time to time pursuant to the terms hereof. (ii) The definition of "Lenders" in
Article I of the Credit Agreement is hereby amended by deleting such definition
in its entirety and inserting the following in its stead:Lenders means the
lending institutions on Schedule 1 of this Agreement and their respective
successors and assigns. (iii) The definition of "Termination Date" in Article I
of the Credit Agreement is hereby amended by deleting such definition in its
entirety and inserting the following in its stead: "Termination Date means July
9,2001, or such earlier date on which the Agreement is terminated by the partie
hereto.
(iv)Section6.1 (b), Section 6.1(c) and Section 6.1(f of the Credit Agreement are
hereby amended by inserting the words or Treasurer after th words chief
financial officer where the word chief financial
officer appear in each of such Sections.(v) The Credit Agreement is hereby
amended by deleting Schedule 1 attached thereto and inserting as Schedule 1,the
document attached hereto as Schedule 1.2. Conditions. The effectiveness of the
amendments stated in this Amendment is subject to on or prior to the date
hereof, that the following conditions shall have been satisfied in a manner, and
in form and substance, as the case maybe, reasonably acceptable to the
Lenders:(i)Amendment. This Amendment shall have been duly executed by each of
the parties signatory hereto and delivered to Agent.(ii) NoDefault. No Default
or Event of Default under the Credit Agreement, as amended hereby, shall have
occurred and be continuing.(iii) Warranties and Representations . The warranties
and representations of the Borrower contained in this Amendment, the Credit
Agreement, as amended hereby, and the other Loan Documents shall be true and
correct as of the date hereof, with the same effect as though made on such date,
except to the extent that such warranties and representations expressly relate
to an earlier date, in which case such warranties and representations shall have
been true and correct as of such earlier date.(iv)Reaffirmation of Guaranty.
Each Real Estate Subsidiary and Operating Subsidiary shall have executed the
Reaffirmation of Guaranty in Exhibit A hereto.(v)Fees.(A)The Borrower shall have
paid to the Agent(1)for the account of each of The First National Bank of
Chicago, Bank Boston,N.A. and Xxxxx Fargo Bank, National Association an amount
equal to 12 1/2 basis points multiplied by the Commitment of such Lender asset
forth on Schedule 1 attached to this Amendment and (2) for the account of each
of The First Union National Bank and Sanwa Bank California an amount equal to 6
1/4 basis points multiplied by the Commitment of such Lender asset forth on
Schedule 1 attached to this Amendment and (B)each of First Union National Bank
and Sanwa Bank California shall have each received an additional $18,750 from
money remitted to the Agent pursuant to that certain Assignment and Acceptance
Agreement dated the date hereof by and between The Sumitomo Bank, Limited and
The First National Bank of Chicago. The Effective Time of this Amendment shall
be 5:05p.m. Chicago time, July 21, 1998; provided that all of the above events
shall have occurred prior to that time. If the Effective Time has occurred by
July 24, 1998, this Amendment shall be of no force and effect.3. Continuing
Credits. Not withstanding this Amendment, the Loans owing to Lenders by Borrower
under the Credit Agreement that remain outstanding as of the date hereof shall
constitute continuing Obligations of the Borrower under the Credit Agreement and
this Amendment shall not be deemed to evidence or result in an ovation,or
repayment and reborrowing, of such Loans. 4. Notes. The Borrower covenants and
agrees to provide new Notes to the applicable Lenders. 5. Miscellaneous.(a)
Captions. Section captions used in this Amendment are for convenience only, and
shall not affect the construction of this Amendment.(b)GoverningLaw. THIS
AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONA BANKS. When ever possible each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of suc prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.(c) Counterparts. This Amendment may be
executed in any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.(d)Successors and Assigns. This Amendment shall be binding upon, and
shall inure to the sole benefit of the Borrower, Agen and Lenders, and their
respective successors and assigns. (e)References. Any reference to the Credit
Agreement contained in any notice, request, certificate, or other document
executed concurrently with or after the execution and delivery of this Amendment
shall be deemed to include this Amendment unless the context shall otherwise
require. (f)Continued Effectiveness. Notwithstanding anything contained herein,
the terms of this Amendment are not intended to and do not serve to effect an
ovation as to the Credit Agreement; instead, it is the express intention of the
parties hereto to reaffirm the Obligations created under the Credit Agreement
which is evidence Notes. The Credit Agreement, as amended hereby, and each of
the other Loan Documents remains in full force and effect.(g) Costs and
Expenses. Borrower affirms and acknowledges that Section9.7 of the Credit
Agreement applies to this Amendment and the transactions and agreements and
documents contemplated here under.6. Representations and Warranties. The
Borrower represents and warrants to Agent and Lenders that the execution,
delivery and performance by the Borrower of this Amendment are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action (including, without limitation, all necessary shareholder
approval) of the Borrower, do not require any governmental approvals, consents
or filings and do not and will not contravene or conflict with any provision of
law applicable to the Borrower, the certificate of incorporation or by laws of
the Borrower or any order,judgment or decree of any court oragency of government
or any contractual obligation binding upon the Borrower,and this Amendment,
the Credit Agreement, as amended hereby, and each LoanDocument is th legal,
valid and binding obligation of the Borrower enforceable against the Borrower
in accordance with its terms and that the conditions set forth in Sections 2
(ii) and (iii) hereof are true, correct and complete as of the Effective Time.
[signature pages follow]
IN WITNESS WHEREOF, this Fourth Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
HOMEBASE, INC.
By: __________________________________
Print Name: ___________________________
Title: ________________________________
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: __________________________________
Print Name: Xxxx Xxxxxx
Title: Managing Director
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: _________________________________
Print Name: Xxxxx Xxxxxx
Title: Managing Director
000 Xxxxxxx Xxxxxx
Mail Stop 01-09-04
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXX FARGO BANK, N.A.
Individually and as Documentation Agent
By: __________________________________
Print Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
SANWA BANK CALIFORNIA
By: __________________________________
Print Name: Xxxx X. Xxxx
Title: Vice President
Newport Beach Commercial Banking Center
0000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
FIRST UNION NATIONAL BANK
By: __________________________________
Print Name: Xxxx Xxxxxx
Title: Assistant Vice President
Retailer and Apparel Group
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE 1
(HOMEBASE, INC.)
----------------------------------------------------- ----------------------------------- ----------------------------------
Lender Percentages Commitment
----------------------------------------------------- ----------------------------------- ----------------------------------
The First National Bank of Chicago 23.809524 $25,000,000
----------------------------------------------------- ----------------------------------- ----------------------------------
BankBoston, N.A. 23.809524 $25,000,000
----------------------------------------------------- ----------------------------------- ----------------------------------
Xxxxx Fargo Bank, National Association 23.809524 $25,000,000
----------------------------------------------------- ----------------------------------- ----------------------------------
Sanwa Bank California 14.285714 $15,000,000
----------------------------------------------------- ----------------------------------- ----------------------------------
First Union National Bank 14.285714 $15,000,000
----------------------------------------------------- ----------------------------------- ----------------------------------
EXHIBIT A
REAFFIRMATION OF GUARANTY
Each of the undersigned acknowledges receipt of a copy of the
Fourth Amendment to the Credit Agreement (the "Amendment") dated as of July 22,
1998, consents to such amendment, and each of the transactions referenced
therein and hereby reaffirms its obligations under the Subsidiary Guaranty dated
as of July 9, 1997 in favor of The First National Bank of Chicago, as Agent, and
the Lenders (as defined in the Amendment).
Dated as of _______________, 1998
[GUARANTOR]
By: __________________________________
Title: _________________________________
