Exhibit 10a
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FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "First
Amendment") is made and entered into as of November 9, 2001, by and among
XXXXX MART, INC., a Florida corporation (the "Borrower"), the several banks
and other financial institutions party hereto (the "Lenders"), and SUNTRUST
BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Revolving Credit Agreement, dated as of June 28, 2001 (the
"Existing Agreement;" capitalized terms used and not otherwise defined or
amended in this First Amendment shall have the meanings respectively
assigned to them in the Existing Agreement);
WHEREAS, pursuant to the Existing Agreement, the Lenders severally, to
the extent of their respective Commitments on a ratable basis up to the
total of each Lender's Commitment, established for the Borrower a
$135,000,000 senior revolving credit facility with a $10,000,000 swingline
and a $10,000,000 letter of credit sub-facility thereunder, all upon the
terms and conditions, and subject to the limitations, set forth in the
Existing Agreement;
WHEREAS, the Borrower, as of the end of the fiscal quarter ended
September 29, 2001, is in violation of certain of the financial covenants
contained in the Existing Loan Agreement, in particular those covenants
contained in Section 6.1 (Consolidated Adjusted Debt to Consolidated
EBITDAR Ratio) and Section 6.2 (Fixed Charge Coverage Ratio), and such
violations would constitute an Event of Default under the Existing
Agreement if not waived as provided herein;
WHEREAS, the Borrower has requested the Lenders and the Administrative
Agent to waive the Borrower's non-compliance with the foregoing financial
covenants for the fiscal quarter ended September 29, 2001 (but for no
future fiscal quarter) and the Event of Default arising from such
non-compliance, and the Required Lenders and the Administrative Agent have
agreed to do so, but only upon the terms and conditions set forth herein;
and
WHEREAS, the parties hereto have consulted with, and obtained the
representation and advice of, their respective legal counsel with regard to
the terms and conditions of this First Amendment, and each party has had
the opportunity to participate fully in the drafting of this First
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Required Lenders and the
Administrative Agent agree as follows:
A G R E E M E N T:
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1. Recitals. The recitals set forth above are true and correct and the
parties hereto agree to be bound thereby.
2. Purpose of Amendment. The purpose of this First Amendment, as set
forth in the Recitals hereof, is to waive, for the fiscal quarter ended
September 29, 2001, the Borrower's non-compliance with the financial
covenants contained in Section 6.1 and Section 6.2 of the Existing
Agreement and the Event of Default arising therefrom and, in connection
therewith and in consideration thereof, to make certain modifications and
amendments to the Existing Agreement, all as provided herein. The
willingness of the Required Lenders and the Administrative Agent to enter
into this First Amendment is subject to (i) the acknowledgment by the
Borrower and the Guarantor of their respective obligations to the Lenders,
the Issuing Bank and the Administrative Agent, (ii) the waiver by the
Borrower and the Guarantor of any and all claims and defenses existing as
of the date hereof with regard to repayment of the Obligations, and (iii)
each and all of the other terms and conditions set forth herein.
3. Waiver of Covenant Defaults. Pursuant to Section 10.2(b) of the
Existing Agreement, the Lenders and the Administrative Agent hereby waive
compliance by the Borrower with Section 6.1 and Section 6.2 of the Existing
Agreement for the fiscal quarter ended September 29, 2001; provided,
however, the Borrower acknowledges and agrees that such waiver is only
applicable to the fiscal quarter ended September 29, 2001 and no others.
The Borrower, the Lenders and the Administrative Agent understand and agree
that the foregoing waiver shall be effective upon execution hereof by all
parties, shall satisfy all notice and consent provisions contained in the
Existing Agreement that may pertain or apply to the actions of the parties
as set forth herein, and shall apply only to the specific items and events
described herein, for the purposes set forth herein, and shall not apply to
any other provisions of the Existing Agreement or any other of the Loan
Documents, nor to any future events, defaults, violations or requirements,
whether or not the same or of a similar nature. Nothing herein is or shall
be deemed to be a waiver of any other Default or Event of Default
(including, without limitation, any Event of Default under Section 6.1 or
Section 6.2 for any period other than as noted herein) under the terms of
the Existing Agreement.
4. Amendments to Existing Agreement. In consideration of the waiver
set forth in paragraph 3 of this First Amendment and as a condition of such
waiver, the Existing Agreement is amended as of the effective date hereof
as follows:
A. From and after the effective date hereof, the terms
"Applicable Margin" and "Applicable Percentage" under "ARTICLE I
- DEFINITIONS; CONSTRUCTION" of the Existing Agreement shall be
redefined as set forth below; provided, however, prior to the
effective date hereof, the definitions of said terms as set forth
in the Existing Agreement shall continue to be applicable:
"Applicable Margin" shall mean, as of any date, (i) with
respect to all Eurodollar Borrowings outstanding on such date,
1.75%, and (ii) with respect to all Base Rate Borrowings
outstanding on such date, 0.75% and, in each case, shall not be
subject to adjustment.
"Applicable Percentage" shall mean, as of any date, with
respect to the commitment fee, 0.375%.
B. From and after the effective date hereof, the "Pricing
Grid" attached to the Existing Agreement as Schedule I is hereby
deleted in its entirety and not replaced.
5. Amendment Fee; Legal Fees and Costs. No amendment fee shall be
charged by the Administrative Agent or any Lender in connection with this
First Amendment. However, the Borrower shall pay all legal fees and costs
incurred by the Administrative Agent in connection with the preparation,
execution and delivery of this First Amendment, which legal fees and costs
shall be due and payable by the Borrower on the effective date hereof.
6. Execution of Required Documents. Concurrently with the execution
hereof, the Borrower shall, and shall cause the Guarantor to, execute and
deliver to the Lenders and/or to the Administrative Agent, as applicable,
any and all documents and instruments as may be required or requested by
the Lenders and/or the Administrative Agent in connection herewith, each in
form and substance acceptable to the Lenders and/or the Administrative
Agent, as applicable.
7. No Waiver by Lenders, Administrative Agent, Etc. Notwithstanding
the agreement of the Administrative Agent and the Required Lenders to enter
into this First Amendment and to modify and amend the Existing Agreement as
set forth herein, the Borrower acknowledges and agrees that, by so agreeing
to enter into this First Amendment and to modify and amend the Existing
Agreement as set forth herein, the Lenders and the Administrative Agent
shall not be deemed to have waived (or to be estopped from asserting) any
provisions of the Existing Agreement, including without limitation, any
existing or future Default or Event of Default thereunder (except as
otherwise set forth in paragraph 3 hereof) and, if the Borrower now or at
any time in the future shall be in breach of any of the provisions of the
Existing Agreement or if any Default or Event of Default has occurred and
is continuing thereunder, the Administrative Agent and/or the Lenders, as
applicable, shall be entitled to withhold further funding of Borrowings or
issuance of Letters of Credit at any time and to exercise any of its or
their other default rights and remedies under the Existing Agreement or any
other Loan Document, from time to time, upon
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notice to the Borrower and the Guarantor, and that no failure or delay on
the part of the Administrative Agent or any Lender in exercising any
right or remedy under the Existing Agreement or under any other Loan
Document and no course of dealing with the Borrower and/or the Guarantor,
on the one hand, and the Administrative Agent and/or such Lender, on the
other hand, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy under the Existing Agreement or
under any other Loan Document preclude any other or further exercise
thereof or the exercise of any other right or remedy hereunder or
thereunder.
8. Acknowledgment of Outstanding Obligations. The Borrower and the
Guarantor hereby acknowledge, certify and agree that pursuant to the
Existing Agreement, (i) Lenders have made Eurodollar Loans to the Borrower
that are outstanding as of the date hereof in the aggregate principal
amount of $120,000,000 and Base Rate Loans to the Borrower that are
outstanding as of the date hereof in the aggregate principal amount of
$-0-, (ii) the Administrative Agent has made Swingline Loans to the
Borrower that are outstanding as of the date hereof in the aggregate
principal amount of $-0- and (iii) the Issuing Bank has issued Letters of
Credit on behalf of or for the account of the Borrower in the aggregate
face amount of $2,058,980; the Borrower's obligation to pay the outstanding
amounts under such Existing Agreement to the Lenders, the Administrative
Agent and/or the Issuing Bank is not subject to any defense, claim,
counterclaim, setoff, right of recoupment, abatement or other determination
whatsoever; including without limitation, any usury or lender liability
claim or defense, arising out of the Loans or the issuance of any Letter of
Credit or any past relationship between or among the Borrower, the Lenders,
the Administrative Agent and/or the Issuing Bank that can be asserted by
the Borrower either to reduce or eliminate all or any part of its liability
for the Obligations or to seek affirmative relief or damages of any kind or
nature from the Lenders, the Administrative Agent and/or the Issuing Bank.
The Borrower further acknowledges that to the extent that any such claim
should in fact exist, including without limitation, any usury or lender
liability claim, it is being fully, finally, and irrevocably released. The
Borrower hereby acknowledges and agrees that an Event of Default exists
under the Existing Agreement as referenced in paragraph 3 hereof and that
the Lenders and the Administrative Agent are under no obligation whatsoever
to restructure the Loans or any of the Loan Documents. In consideration of
the terms and conditions of this First Amendment, made at the Borrower's
request, the Borrower on behalf of itself and its respective successors and
assigns hereby fully, finally and irrevocably releases the Lenders, the
Administrative Agent and the Issuing Bank, and their respective officers,
directors, affiliates, subsidiaries, parents, representatives, agents,
shareholders, attorneys, employees, predecessors, successors and assigns
(collectively, the "Released Parties") from any and all defenses,
counterclaims, offsets, cross-claims, claims and demands of any kind or
nature existing as of the date of this First Amendment, including without
limitation, any usury or lender liability claims or defenses, whether known
or unknown, and whenever and howsoever arising, relating to the Loans or
the Letters of Credit, or any past relationship between the Borrower and
any of the Released Parties. In addition, the Borrower hereby agrees not to
commence, join in, prosecute, or participate in any suit or other
proceeding in a position adverse to that of any of the Released Parties
arising directly or indirectly from any of the foregoing matters. The
Borrower further agrees that, from and after the effective date hereof, the
Loans and the Letters of Credit are and shall continue to be governed by
the terms and provisions of the Existing Agreement, as modified and amended
by this First Amendment.
9. Representations and Warranties. The Borrower represents, warrants
and agrees that:
(a) The execution, delivery and performance of this First
Amendment has been duly authorized by all requisite action of the Borrower,
corporate or otherwise.
(b) The Loan Documents are in full force and effect on and as of
the effective date hereof.
(c) Each of the representations, warranties, covenants and
agreements of the Borrower set forth in the Existing Agreement and the
other Loan Documents are true, correct and remain with the same force and
effect as if each were separately stated herein and made as of the
effective date hereof.
(d) The Borrower and the Administrative Agent, the Lenders and/or
the Issuing Bank, as applicable, are in full compliance with all covenants
and agreements established under the Loan Documents as of the effective
date hereof after giving effect to the waiver provided herein.
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(e) Based on the waiver of certain defaults as set forth in
paragraph 3 above, no Default or Event of Default exists under the Existing
Agreement as of the effective date hereof.
10. Ratification of Loan Documents. The Borrower and the Guarantor
hereby ratify and approve the Existing Agreement and each of the other Loan
Documents in their entirety, and acknowledge and agree that the Existing
Agreement and such other Loan Documents are legal, valid and binding
obligations of the Borrower and the Guarantor and are enforceable by the
Administrative Agent, the Lenders and/or the Issuing Bank, as applicable,
against the Borrower and the Guarantor in accordance with their respective
terms.
11. Counterparts; Facsimile Signatures; Effectiveness of First
Amendment. This First Amendment may be executed in one or more counterpart
copies, each of which constitutes an original, but all of which, when taken
together, shall constitute one agreement binding upon all of the parties
hereto. Further, the parties may execute facsimile copies of this First
Amendment and the facsimile signature of any such party shall be deemed an
original and fully binding on said party; provided, however, any party
executing this First Amendment by facsimile signature agrees to promptly
provide an original executed copy of this First Amendment to the
Administrative Agent. Notwithstanding execution of this First Amendment by
the Borrower, the Guarantor and each of the Required Lenders party hereto,
this First Amendment shall not be or become effective and binding upon the
parties until executed and accepted by the Administrative Agent in its
capacity as such on behalf of the Lenders.
12. Governing Law, Etc. This First Amendment shall be governed by and
construed in accordance with the applicable terms and provisions of Section
10.5 Governing Law; Jurisdiction; Consent to Service of Process of ARTICLE
X - MISCELLANEOUS of the Existing Agreement, which terms and provisions are
incorporated herein by reference.
13. No Other Modifications. Except as hereby amended, no other term,
condition or provision of the Existing Agreement shall be deemed modified
or amended, and this First Amendment shall not be considered a novation.
14. Complete Agreement. This First Amendment constitutes the complete
agreement between the parties hereto with regard to the matters set forth
herein and incorporates all prior discussions, agreements and
representations made in respect of such matters.
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