EXHIBIT 10.9
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Third Amendment to Revolving Credit Agreement (this "Amendment"),
effective as of the 15th day of February, 1998, among LOT$OFF CORPORATION,
50-OFF TEXAS STORES, L.P., 50-OFF OPERATING COMPANY, and 50-OFF MULTISTATE
OPERATIONS, INC., as Borrowers (collectively, the "Borrowers"), and GENERAL
ELECTRIC CAPITAL CORPORATION, as Lender (the "Lender"),
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lender are parties to that certain
Revolving Credit Agreement dated as of June 16, 1997, as amended by that
certain First Amendment to Revolving Credit Agreement dated as of August 28,
1997 and by that certain Second Amendment to Revolving Credit Agreement dated
as of December 22, 1997(as further amended, modified, restated or
supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms of the Credit
Agreement be amended, and the Lender has agreed to the requested amendments
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree that all capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement, and
further agree as follows:
1. AMENDMENTS TO ARTICLE 1. Article 1 of the Credit Agreement is hereby
amended by deleting the definition of "OVER ADVANCE AMOUNT" set forth therein
in its entirety and replacing such definition with the following:
"OVER ADVANCE AMOUNT" shall mean (a) from December 22, 1997
through December 31, 1997, the amount of $1,000,000; (b) from January 1,
1998 through February 26, 1998, the amount of $2,000,000; and (c) on
February 27, 1998 and at all times thereafter, zero.
2. AMENDMENT TO SECTION 2.14. Section 2.14 of the Credit
Agreement, CLOSING, ADMINISTRATION, AND NON-USE FEES, is hereby amended by
deleting the last sentence in subsection (d) thereof in its entirety and
replacing such sentence with the following:
Additionally, the Borrowers hereby agree to pay to the Lender
on February 27, 1998, a fee in the amount of 2.5% of the Lawsuit Proceeds
by executing and delivering to the Lender on February 27, 1998, such
documents and agreements (including opinions of counsel) as may be
necessary or requested by the Lender to convey to the Lender 2.5% of the
Borrowers' right, title and interest in and to the Lawsuit Proceeds, in
form and substance satisfactory to the Lender; provided, however, the
Borrowers shall not be required to pay such fee if, on February 27, 1998,
the Borrowers make the mandatory repayment of the Funded Over Advance
Amount required by Section 2.18 hereof.
3. AMENDMENT TO SECTION 2.18. Section 2.18 of the Credit
Agreement, MANDATORY REPAYMENT OF FUNDED OVER ADVANCE AMOUNT, is hereby
deleted in its entirety and replaced with the following:
2.18 MANDATORY REPAYMENT OF FUNDED OVER ADVANCE AMOUNT. On
February 27, 1997, the Borrowers shall make a mandatory repayment of the
Loan in the amount of the then outstanding principal balance of the Funded
Over Advance Amount, together with accrued interest thereon, and such
repayment shall be applied to the Funded Over Advance Amount of the Loan.
4. NO OTHER AMENDMENT. Except for the amendments expressly
set forth above, the text of the Credit Agreement and all other Loan
Documents shall remain unchanged and in full force and effect. The Borrowers
acknowledge and expressly agree that the Lender reserves the right to, and
does in fact, require strict compliance with all terms and provisions of the
Credit Agreement and the other Loan Documents.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants in favor of the Lender as follows:
(a) Such Borrower has the corporate power and authority (i)
to enter into this Amendment and (ii) to do all acts and things as are
required or contemplated hereunder to be done, observed and performed by
it;
(b) This Amendment has been duly authorized, validly executed
and delivered by one or more authorized signatories of such Borrower, and
constitutes the legal, valid and binding obligation of such Borrower,
enforceable against it in accordance with its terms;
(c) The execution and delivery of this Amendment and
performance by such Borrower under the Credit Agreement, as amended hereby,
do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency
having jurisdiction over such Borrower which has not already been
obtained, nor contravene or conflict with the charter documents of such
Borrower, or the provision of any statute, judgment, order, indenture,
instrument, agreement, or undertaking, to which such Borrower is party
or by which any of its properties are or may become bound;
(d) As of the date hereof, and after giving effect to this
Amendment (i) no Default or Event of Default exists under the Credit
Agreement or is caused by this Amendment other than as disclosed on
Schedule 1 attached hereto (and the Borrowers acknowledge that no Default
or Event of Default disclosed on such Schedule 1 has been waived by the
Lender and that the Lender reserves all rights and remedies with respect
to such Defaults or Events of Default) and, and (ii) to the best of the
Borrowers' knowledge, each representation and warranty set forth in
Article 4 of the Credit Agreement is true and correct in all material
respects, except (x) to the extent previously fulfilled in accordance with
the terms of the Credit Agreement, as amended hereby, or (y) to the extent
relating specifically to the Closing Date.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment
shall become effective on the date that the Lender shall have received a duly
executed original signature page to this Amendment from the Borrowers.
7. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, without
reference to the conflicts or choice of law principles thereof.
8. LOAN DOCUMENT. This Amendment shall be deemed to be a Loan Document
for all purposes.
9. EXPENSES. The Borrowers agree to pay all reasonable expenses of the
Lender incurred in connection with this Amendment, including, without
limitation, all fees and expenses of counsel to the Lender.
10. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart
of this Amendment by facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute and deliver this
Amendment as of the day and year first written above.
BORROWERS: LOT$OFF CORPORATION, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx XX
------------------------------------------
Xxxxxxx X. Xxxxxxxx, XX
President
50-OFF MULTISTATE OPERATIONS, INC.,a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxxx XX
------------------------------------------
Xxxxxxx X. Xxxxxxxx, XX
President
50-OFF OPERATING COMPANY, a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxxx XX
------------------------------------------
Xxxxxxx X. Xxxxxxxx, XX
President
50-OFF TEXAS STORES, L.P., a Texas limited partnership
By: 50-OFF Texas Management, Inc.,
a Nevada corporation,
its managing general partner
By: /s/ Xxxxxxx X. Xxxxxxxx XX
------------------------------------------
Xxxxxxx X. Xxxxxxxx, XX
President
LENDER: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx
Its: Senior Vice President
------------------------------------------
SCHEDULE 1 - EXISTING DEFAULTS AND EVENTS OF DEFAULT
