EXHIBIT 10.32
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of August 1, 2003, by and between FAIR ▇▇▇▇▇ CORPORATION (FORMERLY KNOWN
AS FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED), a Delaware corporation ("Borrower"),
and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of that certain Credit Agreement between Borrower and Bank dated
as of November 1, 2002, as amended from time to time ("Credit Agreement");
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Credit Agreement and have agreed to amend the
Credit Agreement to reflect said changes;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
1. Section 1.1 (c) is hereby redesignated as Section 1.1 (d), and
the following provision is hereby added as Section 1.1 (c):
"(c) Reservation of Foreign Exchange "Delivery
Limit". The largest aggregate outstanding principal amount of
Borrower's foreign exchange contracts (entered into by Bank as
set forth in Section 1.2 below) which will mature during any
single two (2) day period shall be reserved under the Line of
Credit and shall not be available for borrowings thereunder."
2. The following provision is hereby added as Section 1.2 (c):
"(c) Limitation on Availability of Foreign
Exchange Facility. Notwithstanding anything to the contrary
contained herein, Bank shall not enter into foreign exchange
contracts for the account of Borrower if and to the extent
that the sum of the aggregate principal balance outstanding
under the Line of Credit (including the undrawn amount of any
Letters of Credit) plus the largest aggregate outstanding
principal amount of foreign exchange contracts entered into by
Bank hereunder which will mature during any single two (2) day
period exceeds Fifteen Million Dollars ($15,000,000.00)."
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3. Section 3.1 (b)(v) is hereby redesignated as Section 3.1
(b)(vii), and the following is hereby added to the Credit Agreement as the new
Sections 3.1 (b)(v) and (vi):
"(v) Foreign Exchange Agreement.
(vi) Authorization for Foreign Exchange
Transactions."
4. Section 4.5 is hereby amended by adding after the phrase "at
Bank's request" the following parenthetical phrase: "(which shall not be more
frequent than annually)".
5. Section 4.8 is hereby deleted in its entirety, and the
following substituted therefor:
" SECTION 4.8. LITIGATION. Promptly give notice in
writing to Bank of any litigation pending or threatened
against Borrower with a claim in excess of $500,000.00
(exclusive of any defense costs and net of any insurance
contribution and/or third-party recovery)."
6. Section 4.10 is hereby amended by deleting subclause (d)
thereof.
7. Section 4.9 (a) is hereby deleted in its entirety, and the
following substituted therefor:
"(a) Total Liabilities divided by Tangible Net
Worth not at any time greater than 1.30 to 1.0, with "Total
Liabilities" defined as the aggregate of current liabilities
and non-current liabilities less subordinated debt, and with
"Tangible Net Worth" defined as the aggregate of total
stockholders' equity plus subordinated debt less any
intangible assets."
8. Section 5.4 is hereby amended by deleting the reference
therein to "75% of Borrower's cash" and by substituting in its place "90% of
Borrower's cash".
9. Section 5.6 is hereby deleted in its entirety, and the
following substituted therefor:
"SECTION 5.6. LOANS, ADVANCES, INVESTMENTS. Make any
loans or advances to or investments in any person or entity,
except any of the foregoing existing as of, and disclosed to
Bank prior to, the date hereof, and additional investments in
treasury stock purchases in any fiscal year not to exceed an
aggregate of $450,000,000.00 for all such treasury stock
purchases combined."
10. Except as specifically provided herein, all terms and
conditions of the Credit Agreement remain in full force and effect, without
waiver or modification. All terms defined in the Credit Agreement shall have the
same meaning when used in this Amendment. This Amendment and the Credit
Agreement shall be read together, as one document.
11. Borrower hereby remakes all representations and warranties
contained in the Credit Agreement and reaffirms all covenants set forth therein.
Borrower further certifies that as
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of the date of this Amendment there exists no Event of Default as defined in the
Credit Agreement, nor any condition, act or event which with the giving of
notice or the passage of time or both would constitute any such Event of
Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
▇▇▇▇▇ FARGO BANK,
FAIR ▇▇▇▇▇ CORPORATION NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer Vice President
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