EXHIBIT 99
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT ("Amendment") made as of this 29th day of May, 1999
among XXXXXXXX'X XXXXX'X, INC., a Delaware corporation having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Borrower"), each of the Subsidiaries of the Borrower listed on Schedule 1
annexed to the Agreement (as hereinafter defined) (individually, a "Guarantor"
and collectively, the "Guarantors") (the Borrower and the Guarantors,
collectively, the "Credit Parties"), EUROPEAN AMERICAN BANK, a New York banking
organization, having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("EAB" or a "Bank") ISRAEL DISCOUNT BANK OF NEW YORK, a New York banking
organization, having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Israel Discount" or a "Bank"), KEYBANK NATIONAL ASSOCIATION, a national
banking association, having an office at 0000 Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx
00000 ("Key" or a "Bank") and BANK LEUMI USA (formerly known as Bank Leumi Trust
Company of New York), a New York trust company, having an office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Leumi" or a "Bank") and EUROPEAN AMERICAN
BANK, as agent for the Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent have entered into a Loan
Agreement dated as of the 7th day of November, 1997, which Loan Agreement has
heretofore been amended pursuant to that certain First Amendment dated April 30,
1998, that certain Second Amendment dated as of August 29, 1998, that certain
Third Amendment dated as of November 28, 1998 and that certain Fourth Amendment
dated as of February 27, 1999 (as so amended, the "Agreement"); and
WHEREAS, the Banks have made loans to the Borrower as evidenced by certain
notes of the Borrower and specifying interest to be paid thereon; and
WHEREAS, the Credit Parties have requested that the Agent and the Banks
agree:
(i) to extend the Revolving Credit Maturity Date to
November 30, 2003;
(ii) to increase the Revolving Credit Commitment to Fourteen Million
($14,000,000.00) Dollars;
(iii) amend the repayment terms of the Term Loans;
(iv) amend the repayment terms of the Improvement Term Loans; and
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(v) to amend certain of the financial requirements contained in the
Agreement.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Guarantors and the Bank do hereby agree as
follows:
1. DEFINED TERMS. As used in this Amendment, capitalized terms, unless
otherwise defined, shall have the meanings set forth in the Agreement.
2. REPRESENTATIONS AND WARRANTIES. As an inducement for the Bank to enter
into this Amendment, the Credit Parties each represent and warrant as follows:
A. That with respect to the Agreement and the Loan Documents
executed in connection therewith and herewith:
(i) There are no defenses or offsets to the Borrower's or any
Guarantor's obligations under the Agreement as amended hereby, the
Note or any of the Loan Documents or any other agreements in favor
of the Bank referred to in the Agreement, and if any such defenses
or offsets exist without the knowledge of the Borrower or any
Guarantor, the same are hereby waived.
(ii) All of the representations and warranties made by the
Borrower and any Guarantor in the Agreement as amended hereby are
true and correct in all material respects as if made on the date
hereof, except for those made with respect to a particular date,
which such representations and warranties are restated as of such
date; and provided further that the representations and warranties
set forth in Section 4.01(f) of the Agreement shall relate to the
audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries for the fiscal year ended November 29,
1998 and the three month fiscal period ended February 28, 1999.
(iii) The outstanding aggregate principal balance of the Loans
as evidenced by the Notes is $21,032,744.61 as of May 29, 1999 and
interest has been paid through June 1, 1999.
3. NEW AND AMENDED DEFINITIONS. (a) The following definitions are hereby
added in alphabetical order within Article I of the Agreement:
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"'Accounts Receivable' means those accounts receivable of the
Borrower set forth on its balance sheet contained in its most
recently filed 10-K and 10-Q reports filed with the Securities and
Exchange Commission which (i) arise in the ordinary course of
business, and (ii) are subject to a first, perfected security
interest of the Agent."
"Amended and Restated Revolving Credit Note" or "Amended and
Restated Revolving Credit Notes" means one or more, as the context
requires, of the promissory notes of the Borrower payable to the
order of each of the Banks, in substantially the form of Exhibit A
annexed to the Fifth Amendment to the Agreement, evidencing the
indebtedness of the Borrower to each such Bank resulting from
Revolving Credit Loans made by such Bank to the Borrower pursuant to
this Agreement.
"'Inventory' means all inventory of the Borrower set forth on the
balance sheet contained in its most recently filed 10-K and 10-Q
reports filed with the Securities and Exchange Commission, valued at
the lower of cost or market value, which are subject to a first,
perfected security interest of the Agent."
"'Year 2000 Issue' means the failure of computer software, hardware
and firmware systems and equipment containing embedded computer
chips to properly receive, transmit, process, manipulate, store,
retrieve, retransmit or in any other way utilize data and
information due to the occurrence of the year 2000 or the inclusion
of dates on or after January 1, 2000."
(b) The following definitions in Article I of the Agreement are hereby amended
to read as follows:
(a) The definition of Consolidated Total Assets is hereby deleted in
its entirety and replaced as follows:
"'Consolidated Total Assets' means, as to any Person, the aggregate
net book value of the assets of such Person and its Consolidated
Subsidiaries after all appropriate adjustments in accordance with
GAAP (including without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization and
excluding the amount of any write-up or revaluation of any asset,
other than that arising from (i) the consummation of the
Acquisition, and (ii) the accounting by the Borrower for the
acquisition of store #53 which was acquired on February 6, 1998)."
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(b) The definition of Funded Debt is hereby deleted in its entirety
and replaced as follows:
"'Funded Debt' means, as to any Person, such Debt of such Person
which is (i) all indebtedness or liability for borrowed money (other
than (x) Subordinated Debt payable to United Acquisition Corp. in an
amount not exceeding $4,000,000.00, and (y) other unsecured Debt
owing to either United Acquisition Corp, or any Affiliate of Xxxx
Xxxxxxxxxxxx); (ii) all indebtedness or liability for the deferred
purchase price of property (excluding trade obligations); (iii) all
obligations for principal as a lessee under Capital Leases, as
determined in accordance with GAAP; (iv) all obligations to
reimburse an issuing bank for the amount of all undrawn letters of
credit, unmatured drafts accepted or other deferred payment
obligations incurred under letters of credit, and (v) all
liabilities of such Person under any preferred stock which, at the
option of the holder or upon the occurrence of one or more certain
events, is redeemable by such holder, or which, at the option of
such holder is convertible into Debt."
(c) The definition of Improvement Term Loan Maturity Date is hereby
deleted in its entirety and replaced as follows:
"'Improvement Term Loan Maturity Date' means November 30, 2003."
(d) The definition of Revolving Credit Maturity Date is hereby
deleted in its entirety and replaced as follows:
"'Revolving Credit Maturity Date' means November 30, 2003."
(e) The definition of Term Loan Maturity Date is hereby deleted in
its entirety and replaced as follows:
"'Term Loan Maturity Date' means November 30, 2003."
(f) The definition of Asset Sale Recapture Payment is hereby deleted
in its entirety and replaced as follows:
"Asset Sale Recapture Payment" means one hundred (100%) percent of
the "net proceeds" of an Asset Sale Recapture Event. In the case of
an Asset Sale Recapture Event in which assets are sold solely for
cash, the "net proceeds" shall be the sales price for the assets
less reasonable and customary out-of-pocket expenses and taxes
associated with such sale. In the case of an Asset Sale Recapture
Event in which assets are sold for cash and debt, the "net proceeds"
shall be the cash portion of the sale
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price for the assets less reasonable and customary out-of-pocket
expenses associated with such sale plus an assignment of the
promissory notes representing the non-cash portion of the sale."
(g) The definition of Cash Flow Recapture Payment is hereby deleted
in its entirety and replaced as follows:
"'Cash Flow Recapture Payment' means, for any fiscal year of the
Borrower, beginning with the fiscal year ending December 1, 2002,
the lesser of (i) fifty (50%) percent of Excess Cash Flow for any
fiscal year or (ii) $750,000.00."
(h) The definition of Cleandown Period is hereby deleted in its
entirety.
4. AMENDMENTS. The following amendments are hereby made to the Agreement:
(a) All references to Revolving Credit Notes contained in the
Agreement shall be references to the Amended and Restated Revolving Credit
Notes.
(b) Section 2.01(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) The Banks agree, severally but not jointly, on the terms and
subject to the conditions of this Agreement, and in reliance upon
the representations and warranties of the Credit Parties set forth
in this Agreement that the Banks will, until the Revolving Credit
Maturity Date, lend to the Borrower such Revolving Credit Loans as
the Borrower may request from time to time, which Loans may be
borrowed, repaid and reborrowed, provided, however, that:
(x) the aggregate outstanding Revolving Credit Loans at any
one time shall not exceed the lesser of (i) Fourteen Million
($14,000,000.00) Dollars (the "Revolving Credit Commitment") as the
Revolving Credit Commitment may be reduced pursuant to Section 2.07
hereof, or (ii) the sum of sixty (60%) percent of Accounts
Receivable plus sixty (60%) percent of Inventory; and
(y) each Bank's pro rata share of Revolving Credit Loans shall
not exceed its pro rata share of the Revolving Credit Commitment."
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(c) Section 2.06(d) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(d) At any time that the principal amount of outstanding Revolving
Credit Loans exceeds the lesser of (i) the Revolving Credit
Commitment, or (ii) the sum of sixty (60%) percent of Accounts
Receivable plus sixty (60%) percent of Inventory, the Borrower
shall, within sixty (60) days after the due date for the financial
statement for the fiscal quarter (or fiscal year in the case of the
fourth quarter of each fiscal year) during which such deficiency
occurred, prepay so much of the Revolving Credit Loans as shall
exceed the Revolving Credit Commitment or the sum of sixty (60%)
percent of Accounts Receivable plus sixty (60%) percent of
Inventory, as the case may be. Any such prepayments shall be applied
as set forth in (c) above and if such prepayments of Revolving
Credit Loans shall result in a prepayment of a Eurodollar Loan other
than on the last day of its Interest Period, such prepayment shall
be subject to the reimbursement required by Section 2.30."
(d) Section 2.10(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) The principal balance of each of the Term Loan Notes shall be
payable as follows:
(i) for the period commencing on the date of the Fifth
Amendment to the Agreement and ending on June 1, 2000, principal
payments of $100,000.00 per month;
(ii) for the period commencing on the first Business Day of
July, 2000 and continuing on each such day thereafter through the
first Business Day of November, 2003, monthly principal installments
in an aggregate amount equal to $142,857.00 each; and
(iii) on the Term Loan Maturity Date, an amount equal to the
then aggregate outstanding principal balance of the Term Loan
Notes."
(e) Section 2.19(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) The principal balance of each of the Improvement Term Loan
Notes shall be payable as follows:
(i) for the period commencing on the date of the Fifth
Amendment to the Agreement and ending on June 1, 2000, payments of
interest only shall be required;
(ii) for the period commencing on the first Business Day of
July, 2000 and continuing on each such day thereafter through the
first Business Day of June, 2001, principal payments of $50,000.00
per month;
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(iii) for the period commencing on the first Business Day of
July, 2001 and continuing on each such day thereafter through the
first Business Day of November, 2003, principal payments $133,333.33
per month; and
(iv) on the Improvement Term Loan Maturity Date, an amount
equal to the then aggregate outstanding principal balance of the
Improvement Term Loan Notes."
(f) Section 2.25 of the Agreement is hereby deleted in its entirety
and replaced as follows:
"SECTION 2.25. Reduction of Revolving Credit Commitment
or Improvement Term Loan Commitment.
(a) Optional. Upon at least three (3) Business Days' prior
written notice to the Agent, the Borrower may irrevocably elect to
have the unused Revolving Credit Commitment terminated in whole or
reduced in part provided, however, that any such partial reduction
shall be in a minimum amount of $250,000.00, or whole multiples
thereof. The Revolving Credit Commitment, once terminated or
reduced, shall not be reinstated without the express written
approval of the Agent and the Banks. Any reduction to the Revolving
Credit Commitment shall be applied pro rata to the respective
Revolving Credit Commitments of each Bank.
(b) Mandatory. The Revolving Credit Commitment shall reduce on the
first Business Day of each month, commencing on the first Business
Day of July, 2001 in an amount equal to $466,667.00."
(g) Section 2.26 of the Agreement is hereby deleted in its entirety
and replaced as follows:
"SECTION 2.26. Applicable Margin. The Prime Applicable Margin and
the LIBOR Applicable Margin shall each be determined on the basis of
the Borrower's Funded Debt to EBITDA Ratio, as calculated based on
the Borrower's consolidated financial statements for its most recent
fiscal year or quarter. The Prime Applicable Margin and the LIBOR
Applicable Margin shall be determined as follows:
(i) The initial Prime Applicable Margin shall be 125 basis
points and the initial LIBOR Applicable Margin shall be 300 basis
points, and each shall be applicable until delivery of the
Borrower's consolidated financial statements for its fiscal quarter
ending May 30, 1999 pursuant to Section 5.01(b) hereof.
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Beginning with delivery of the Borrower's financial statements
for the fiscal quarter ending May 30, 1999, and for each fiscal
quarter thereafter:
(ii) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is less than or equal to 1.50 to
1.00, the Prime Applicable Margin shall be -0- basis points and the
LIBOR Applicable Margin shall be 175 basis points.
(iii) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is greater than 1.50 to 1.00 but
less than or equal to 2.00 to 1.00, the Prime Applicable Margin
shall be 50 basis points and the LIBOR Applicable Margin shall be
225 basis points.
(iv) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is greater than 2.00 to 1.00 but
less than or equal to 2.50 to 1.00, the Prime Applicable Margin
shall be 75 basis points and the LIBOR Applicable Margin shall be
250 basis points.
(v) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is greater than 2.50 to 1.00 but
less than or equal to 3.00 to 1.00, the Prime Applicable Margin
shall be 100 basis points and the LIBOR Applicable Margin shall be
275 basis points.
(vi) If the Borrower's Funded Debt to EBITDA Ratio as of the
end of such fiscal year or quarter is greater than 3.00 to 1.00, the
Prime Applicable Margin shall be 125 basis points and the LIBOR
Applicable Margin shall be 300 basis points.
The Agent shall determine the Applicable Margins within five
(5) Business Days of its receipt of all required financial
statements and certificates.
Upon the occurrence and during the continuance of a Default or
an Event of Default the Prime Applicable Margin and the LIBOR
Applicable Margin may, as a result of changes in the Borrower's
Funded Debt to EBITDA Ratio, increase but will not decrease."
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(h) Section 2.37 of the Agreement is hereby deleted in its entirety
and replaced as follows:
"SECTION 2.37. Interest Rate Hedge Contract. Upon the request of the
Required Banks within sixty (60) days after the date of the Fifth
Amendment to the Agreement, the Borrower shall enter into interest
rate hedge agreements with a term of two (2) years with the Agent,
an affiliate of the Agent or any other bank reasonably acceptable to
the Agent (and, in the case of such other bank, shall deliver copies
of the hedge agreements to the Agent) to purchase interest rate caps
for a maximum notional value of fifty (50%) percent of the
outstanding Loans as of the date of such request"
(i) Section 3.02(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) The following statements shall be true and each request
for a Revolving Credit Loan shall be deemed to be a certification by
the Borrower that:
(i) The representations and warranties contained in
Article IV of this Agreement and in the other Loan Documents are
true and correct in all material respects on and as of such date as
though made on and as such date (provided that the representation
made in Section 4.01(f) shall be deemed made as to the then most
recent fiscal year and interim period financial statements delivered
to the Agent and the Banks and any other representation that refers
to a specific date shall be restated as of such date); and
(ii) No Default or Event of Default has occurred and is
continuing, or would result from such Revolving Credit Loan."
(j) Section 3.03(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) The following statements shall be true and each request
for a Drawdown shall be deemed to be a certification by the Borrower
that:
(i) the representations and warranties contained in
Article IV of this Agreement and in the other Loan Documents are
true and correct in all material respects on and as of such date as
though made on and as of such date (provided that the representation
made in Section 4.01(f) shall be deemed made as to the then most
recent fiscal year and interim period financial statements delivered
to the Agent and the Banks and any other representation that refers
to a specific date shall be restated as of such date);
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(ii) no Default or Event of Default has occurred and is
continuing, or would result from the making of the Drawdown; and
(iii) the improvements being financed with the Drawdown
have been completed and paid for in full and/or that the equipment
being financed with the Drawdown has been delivered and paid for in
full."
(k) Schedule 4.01(a) attached to the Agreement is hereby deleted in
its entirety and replaced with the Schedule 4.01(a) attached to the Fifth
Amendment to the Agreement.
(l) The following Section 4.01(u) is hereby added to the Agreement
as follows:
"(u) Year 2000 Issue. The Borrower, the Guarantors and each
Subsidiary of the Borrower or a Guarantor have reviewed the effect
of the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips owned
or operated by or for the Borrower, the Guarantors or such
Subsidiaries or used or relied upon in the conduct of their business
(including systems and equipment supplied by others or with which
such computer systems of the Borrower, the Guarantors or such
Subsidiaries interface). The costs to the Borrower, the Guarantors
and such Subsidiaries of any reprogramming required as a result of
the Year 2000 Issue to permit the proper functioning of such systems
and equipment and the proper processing of data, and the testing of
such reprogramming, and of the reasonably foreseeable consequences
of the Year 2000 Issue to the Borrower, the Guarantors or such
Subsidiaries (including reprogramming errors and the failure of
systems or equipment supplied by others) are not reasonably expected
to result in a Default or Event of Default or to result in a
Material Adverse Change in the Borrower, any Guarantors or any such
Subsidiaries."
(m) Section 5.01(b)(iii) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(iii) Consolidating Financial Statements. (1) As soon as available
and in any event within ninety (90) days after the end of each
fiscal year of the Borrower and within sixty (60) days after the end
of each of the first three fiscal quarters of the Borrower, a copy
of the consolidating financial statements of the Borrower and its
operating Subsidiaries for such year or quarter, including balance
sheets with related statements of income and retained earnings and
statements of cash flows, all in reasonable detail and setting forth
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in comparative form the figures for the previous fiscal year or
previous fiscal quarter, all such financial statements to be
prepared by management of the Borrower in accordance with GAAP, and
(2) on the same date which the Borrower delivers its annual or
quarterly financial statements to the Agent, a copy of a financial
schedule showing EBITDA operating results by store location for such
fiscal quarter, prepared by management of the Borrower."
(n) Section 5.01(b)(xiii) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(xiii) Lease Status Certificate. on the same date which the
Borrower delivers its annual or quarterly financial statements to
the Agent, a certificate from the chief financial officer of the
Borrower setting forth the Credit Parties' payment status for all
leases of real property, in form and substance reasonable
satisfactory to the Agent."
(o) The following Section 5.01(n) is hereby added to the Agreement
as follows:
"(n) Year 2000 Issue. The Borrower and each Guarantor shall take,
and shall cause each of their Subsidiaries to take, all necessary
action to complete in all material respects by September 30, 1999,
the reprogramming of computer software, hardware and firmware
systems and equipment containing embedded microchips owned or
operated by or for the Borrower, each of the Guarantors and their
Subsidiaries or used or relied upon in the conduct of their business
(including systems and equipment supplied by others or with which
such systems of the Borrower, each of the Guarantors and their
Subsidiaries interface) required as a result of the Year 2000 Issue
to permit the proper functioning of such computer systems and other
equipment and testing of such systems and equipment, as so
reprogrammed. At the request of the Agent, the Borrower shall
provide to the Agent reasonable assurance of its compliance with the
preceding sentence."
(p) Section 5.02(a)(ix)(4) is hereby deleted in its entirety and
replaced as follows:
"(4) The Debt secured by all such Liens shall not exceed
$10,000,000.00 at any time outstanding in the aggregate;
and"
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(q) Section 5.02(b)(v) is hereby deleted in its entirety and
replaced as follows:
"Unsecured inter-company Debt among the Borrower and its
Affiliates."
(r) Section 5.03(a) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(a) Minimum Consolidated Tangible Net Worth. The
Borrower and Guarantors will maintain at all times a
Consolidated Tangible Net Worth ("TNW") of not less than
the following, to be tested quarterly:
Period Minimum TNW
------ -----------
From the date of the Fifth
Amendment to the Agreement $14,500,000.00
until November 27, 1999
From November 28, 1999 until $16,500,000.00
December 2, 2000
From December 3, 2000 until $18,500,000.00
December 1, 2001
From December 2, 2001 and $20,500,000.00
thereafter"
(s) Section 5.03(c) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(c) Leverage Ratio. The Borrower and the Guarantors
will at all times maintain a Leverage Ratio, to be tested
quarterly, of not greater than the following:
Period Minimum Leverage Ratio
------ ----------------------
From the date of the Fifth
Amendment to the Agreement 3.60 to 1.00
until November 27, 1999
From November 28, 1999 until 3.60 to 1.00
December 2, 2000
From December 3, 2000 until 2.55 to 1.00
December 1, 2001
From December 2, 2001 and 2.25 to 1.00
thereafter"
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(t) Section 5.03(d) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(d) Funded Debt to EBITDA Ratio. The Borrower and Guarantors will
maintain at all times on a consolidated basis, a Funded Debt to
EBITDA Ratio, to be tested quarterly, of not greater than the
following:
Funded Debt to
Period EBITDA Ratio
------ --------------
From the date of the Fifth
Amendment to the Agreement 4.80 to 1.00
until November 27, 1999
From November 28, 1999 until 4.00 to 1.00
December 2, 2000
From December 3, 2000 until 3.60 to 1.00
December 1, 2001
From December 2, 2001 and 2.00 to 1.00"
thereafter
(u) Section 5.03(e) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"Fixed Charge Coverage Ratio. The Borrower and Guarantors will
maintain at all times, on a consolidated basis, a minimum Fixed
Charge Coverage Ratio of not less than the following, such ratio to
be tested quarterly:
Fixed Charge
Period Coverage Ratio
------ --------------
From the date of the Fifth
Amendment to the Agreement 1.00 to 1.00
until November 27, 1999
From November 28, 1999 until 1.10 to 1.00
December 2, 2000
From December 3, 2000 until 1.40 to 1.00
December 1, 2001
From December 2, 2001 and 1.50 to 1.00
thereafter"
(v) Section 5.03(f) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"(f) Debt Service Ratio. The Borrower and Guarantors will maintain
at all times, on a consolidated basis, a minimum Debt Service Ratio
of not less the following, such ratio to be tested quarterly:
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Period Debt Service Ratio
------ ------------------
From the date of the Fifth
Amendment to the Agreement 1.20 to 1.00
until November 27, 1999
From November 28, 1999 until 1.60 to 1.00
December 2, 2000
From December 3, 2000 until 2.65 to 1.00
December 1, 2001
From December 2, 2001 and 2.75 to 1.00
thereafter"
(w) Section 5.03(g) of the Agreement is hereby deleted in its
entirety and replaced as follows:
"Minimum EBITDA. The Borrower and the Guarantors shall
have minimum EBITDA of not less than the following:
Period Minimum EBITDA
------ --------------
Semi-annual fiscal period
ending May 30, 1999 $ 4,000,000.00
Nine month fiscal period
ending August 29, 1999 $ 5,500,000.00
Fiscal year ending
November 28, 1999 $ 8,000,000.00
Fiscal year ending
December 3, 2000 $ 9,000,000.00
Each fiscal year
thereafter $10,000,000.00"
5. EFFECTIVENESS. This Amendment shall become effective upon the
occurrence of the following events and the receipt and satisfactory review by
the Bank and its counsel of the following documents:
(a) This Amendment, duly executed by the Borrower and each
Guarantor.
(b) An Amended and Restated Revolving Credit Note, duly executed by
the Borrower and payable to the order of each of the Banks.
(c) Certified (as of the date of the Fifth Amendment to the
Agreement) copies of (i) the resolutions of the Board of
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Directors of the Borrower authorizing the Loans and authorizing and approving
the Fifth Amendment to the Agreement and the other Loan Documents and the
execution, delivery and performance thereof, and (ii) all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Agreement and the other Loan Documents.
(d) Certified (as of the date of the Fifth Amendment to the
Agreement) copies of the resolutions of the Boards of Directors and the
shareholders of each of the Guarantors, authorizing and approving the Fifth
Amendment to the Agreement, their Amended and Restated Guaranties and any other
Loan Document applicable to the Guarantors, and the execution, delivery and
performance thereof and certified copies of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement, their Amended and Restated Guaranties and the other Loan
Documents.
(e) A certificate of the Secretary or an Assistant Secretary
(attested to by another officer) of the Borrower certifying: (i) the names and
true signatures of the officer or officers of the Borrower authorized to sign
the Fifth Amendment to the Agreement, the Amended and Restated Revolving Credit
Notes and the other Loan Documents to be delivered hereunder on behalf of the
Borrower; and (ii) a certification that the Borrower's by-laws have not changed
since the date of the Agreement.
(f) A Certificate of the Secretary or an Assistant Secretary
(attested to by another officer) of each of the Guarantors certifying (i) the
names and true signatures of the officer or officers of the Guarantors
authorized to sign the Fifth Amendment to the Agreement, their Amended and
Restated Guaranties and any other Loan Documents to be delivered hereunder on
behalf of the Guarantors; (ii) a certification that each Guarantor's by-laws
have not changed since the date of the Agreement; and (iii) the stock ownership
of each Guarantor.
(g) A certification that the certificate of incorporation of the
Borrower and the Guarantors have not changed since the date of the Agreement and
a certificate of existence and good standing with respect to the Borrower and
the Guarantors from the Secretary of State (or equivalent officer) of the state
of incorporation of the Borrower and the Guarantors) and from the Secretary of
State (or equivalent officer) of any state in which the Borrower or the
Guarantors are authorized to do business.
(h) From each of the Guarantors, an executed Amended and Restated
Guaranty.
(i) From the Individual Guarantor, an executed guaranty in form and
substance satisfactory to the Agent and the Banks.
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(j) From the Borrower, an amendment fee of $75,000.00 (of which
$50,000.00 has been previously paid) for the pro rata distribution to the Banks.
(k) From the Borrower, the Agent's fee as set forth in the fee
letter of even date herewith.
(l) The Bank shall have received copies of any and all modifications
of the documentation referred to in Section 3.01 of the Agreement which could
result in a Material Adverse Change.
(m) From the Borrower, an opinion of Wolf, Block, Xxxxxx and
Xxxxx-Xxxxx LLP, counsel for the Borrower and the Guarantors as to certain
matters referred to in Article IV of the Agreement and as to such other matters
as the Agent or its counsel may reasonably request.
6. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8. RATIFICATION. Except as hereby amended, the Agreement and all other
Loan Documents executed in connection therewith shall remain in full force and
effect in accordance with their originally stated terms and conditions. The
Agreement and all other Loan Documents executed in connection therewith, as
amended hereby, are in all respects ratified and confirmed.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the year and date first above written.
EUROPEAN AMERICAN BANK, as Agent
By: /s/Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Vice President
EUROPEAN AMERICAN BANK
By: /s/Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/Xxx Xxxxxxxxxxx
----------------------------
Name: Xxx Xxxxxxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BANK LEUMI USA
By: /s/Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
Title: Vice President
By: /s/Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
XXXXXXXX'X XXXXX'X, INC.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
Chief Executive Officer
CITY PRODUCE OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
President
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GRISTEDE'S OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
President
NAMDOR INC.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
President
RAS OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
President
SAC OPERATING CORP.
By: /s/Xxxx Xxxxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxxxx
President
- 18 -
EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$ New York, New York
----------------- May 29, 1999
FOR VALUE RECEIVED, on the Revolving Credit Maturity Date, XXXXXXXX'X
XXXXX'X, INC., a Delaware corporation, having its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Borrower"), promises to pay to
the order of __________________ ("Bank") at the office of European American
Bank, as Agent, located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the
principal sum of the lesser of: (a) ________________ ($___________) DOLLARS; or
(b) the aggregate unpaid principal amount of all Revolving Credit Loans made by
Bank to Borrower pursuant to the Agreement (as defined below).
Borrower shall pay interest on the unpaid principal balance of this Note
from time to time outstanding, at said office, at the rates of interest, at the
times and for the periods set forth in the Agreement.
All payments including prepayments on this Note shall be made in lawful
money of the United States of America in immediately available funds. Except as
otherwise provided in the Agreement, if a payment becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day, and interest shall be payable thereon at the rate
herein specified during such extension.
Borrower hereby authorizes Bank to enter from time to time the amount of
each Loan to Borrower and the amount of each payment on a Loan on the schedule
annexed hereto and made a part hereof. Failure of Bank to record such
information on such schedule shall not in any way effect the obligation of
Borrower to pay any amount due under this Note.
This Note is one of the Amended and Restated Revolving Credit Notes
referred to in that certain Loan Agreement among Borrower, certain Guarantors,
European American Bank, as Agent, European American Bank, Israel Discount Bank
of New York, KeyBank National Association and Bank Leumi USA (formerly known as
Bank Leumi Trust Company of New York) of even date herewith (the "Agreement"),
as such Agreement may be amended from time to time, and is subject to prepayment
and its maturity is subject to acceleration upon the terms contained in said
Agreement. All capitalized terms used in this Note and not defined herein shall
have the meanings given them in the Agreement.
- 19 -
If any action or proceeding be commenced to collect this Note or enforce
any of its provisions, Borrower further agrees to pay all costs and expenses of
such action or proceeding and attorneys' fees and expenses and further expressly
waives any and every right to interpose any counterclaim in any such action or
proceeding. Borrower hereby submits to the jurisdiction of the Supreme Court of
the State of New York and agrees with Bank that personal jurisdiction over
Borrower shall rest with the Supreme Court of the State of New York for purposes
of any action on or related to this Note, the liabilities, or the enforcement of
either or all of the same. Borrower hereby waives personal service by manual
delivery and agrees that service of process may be made by post-paid certified
mail directed to the Borrower at the Borrower's address set forth above or at
such other address as may be designated in writing by the Borrower to Bank in
accordance with Section 8.02 of the Agreement, and that upon mailing of such
process such service be effective with the same effect as though personally
served. Borrower hereby expressly waives any and every right to a trial by jury
in any action on or related to this Note, the liabilities or the enforcement of
either or all of the same. Subject to the provisions of the Agreement, Bank may
transfer this Note and may deliver the security or any part thereof to the
transferee or transferees, who shall thereupon become vested with all the powers
and rights above given to Bank in respect thereto, and Bank shall thereafter be
forever relieved and fully discharged from any liability or responsibility in
the matter. The failure of any holder of this Note to insist upon strict
performance of each and/or all of the terms and conditions hereof shall not be
construed or deemed to be a waiver of any such term or condition.
Borrower and all endorsers and guarantors hereof waive presentment and
demand for payment, notice of non-payment, protest, and notice of protest.
This Note shall be construed in accordance with and governed by the laws
of the State of New York.
This Note amends and replaces that certain Revolving Credit Note from the
Borrower to the Bank dated November 7, 1997.
XXXXXXXX'X XXXXX'X, INC.
By:
----------------------------
Name:
Title:
- 20 -
Schedule of Revolving Credit Loans
----------------------------------
Amount of
Principal Unpaid Name of
Making Amount of Type of Paid or Principal Person Making
Date Loan Loan Prepaid Balance Notation
---------- ---------- ---------- ---------- ---------- ----------
- 21 -
