Exhibit 4.4
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FIRST AMENDMENT
TO REVOLVING CREDIT AGREEMENT
First Amendment to Revolving Credit Agreement dated as of July 7, 1995
(the "FIRST AMENDMENT"), by and among SPECIALTY RETAILERS, INC., a Delaware
corporation ("SRI"), PALAIS ROYAL, INC., a Texas corporation (the "BORROWER"),
THE FIRST NATIONAL BANK OF BOSTON and the other lending institutions listed on
SCHEDULE 1 to the Credit Agreement (as hereinafter defined) (the "BANKS") and
THE FIRST NATIONAL BANK OF BOSTON, as agent for the Banks (in such capacity, the
"AGENT"), amending certain provision of the Revolving Credit Agreement dated as
of March 31, 1995 (as amended and in effect from time to time, the "CREDIT
AGREEMENT") by and among SRI, the Borrower, the Banks and the Agent. Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, SRI, the Borrower, the Banks and the Agent have agreed to
modify certain terms and conditions of the Credit Agreement as specifically set
forth in this First Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ss.1. AMENDMENT TO ss.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended as follows:
(a) by inserting the following definitions in the appropriate
alphabetical order:
"SZOLDS. Szolds, Inc., a ____________ corporation."
"SZOLDS ACQUISITION. The acquisition by the Borrower
of certain of the assets of Szolds pursuant to the terms of
the Szolds Purchase Agreement."
"SZOLDS PURCHASE AGREEMENT. The [Purchase and Sale
Agreement] dated as of May 5, 1995 between Szolds and the
Borrower, which agreement shall be in form and substance
satisfactory to the Agent."
ss.2. AMENDMENT TO ss.8 OF THE CREDIT AGREEMENT. Section 8.5.1 of the
Credit Agreement is hereby amended by deleting ss.8.5.1 in its entirety and
restating it as follows:
"8.5.1. MERGERS AND ACQUISITIONS. Neither SRI nor the Borrower
will become a party to any merger or consolidation, or agree to or
effect any asset
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acquisition or stock acquisition (other than the acquisition of assets
in the ordinary course of business consistent with past practice or the
merger of SRI and the Borrower) except the Borrower may effect the
Szolds Acquisition, PROVIDED, that (a) no Default or Event of Default
has occurred or is continuing or would exist after giving effect
thereto; (b) the Borrower has provided the Agent with prior written
notice of the Szolds Acquisition; (c) the aggregate total consideration
for the Szolds Acquisition does not exceed, in the aggregate, $500,000,
and (d) the Borrower has demonstrated to the Agent based on a PRO FORMA
Compliance Certificate covenant compliance with ss.9 on a PRO FORMA
basis immediately prior to and after giving effect to the Szolds
Acquisition on the assumption that such acquisition occurred at the
beginning of the covenant calculations period.
In the event any new Subsidiary is formed as a result of or in
connection with any acquisition permitted by this ss.8.5.1, the Loan
Documents shall be amended and/or supplemented as necessary to make the
terms and conditions of the Loan Documents applicable to such
Subsidiary, and such Subsidiary shall be required to execute and
deliver to the Agent a guaranty satisfactory to the Agent guaranteeing
the Obligations of the Borrower to the Agent and the Banks.
ss.3. AMENDMENT TO ss.9 OF THE CREDIT AGREEMENT. Section 9 of the
Credit Agreement is hereby amended as follows:
(a) Section 9.1 of the Credit Agreement is hereby amended by deleting
the table set forth in ss.10.1 in its entirety and restating its as follows:
Period Ratio
------ -----
Fiscal Quarters ending April 29, 1995
through October 28, 1995 ........................... 0.90:1.00
Fiscal Quarter ending February 3, 1996 ............... 1.25:1.00
Fiscal Quarters ending May 4, 1996
through February 1, 1997 ........................... 1.30:1.00
each fiscal quarter thereafter ....................... 1.40:1.00
(b) Section 9 of the Credit Agreement is further amended by inserting
immediately after the text of ss.9.1 the following:
ss.9.2 CAPITAL EXPENDITURES. The Borrower will not make, or
permit any Subsidiary to make, Capital Expenditures (including any
expenditures made in connection with any permitted acquisitions) in the
fiscal year ending February 3, 1996 that exceed, in the aggregate,
$28,000,000 for such fiscal year.
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ss.4. CONDITIONS TO EFFECTIVENESS. This First Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this First Amendment executed by SRI, the
Borrower, the Banks and the Agent;
(b) a copy of the Szolds Purchase Agreement, pursuant to which
the Borrower will be acquiring certain assets of Szolds (the "Proposed
Szolds Acquisition"), which Szolds Purchase Agreement shall be in form
and substance satisfactory to the Agent and the Banks;
(c) a PRO FORMA Compliance Certificate demonstrating
compliance with ss.9 of the Credit Agreement on a PRO FORMA basis
immediately prior to and after giving effect to the Proposed Szolds
Acquisition on the assumption that such acquisition occurred at the
beginning of the covenant calculations period; and
(d) evidence satisfactory to the Agent that the assets to be
acquired pursuant to the Proposed Szolds Acquisition will be acquired
free and clear of any and all liens and encumbrances, which evidence
shall include but not be limited to, copies of filed UCC-3 termination
statements and mortgage discharges.
ss.5. REPRESENTATIONS AND WARRANTIES. Each of SRI and the Borrower
hereby repeats, on and as of the date hereof, each of the representations and
warranties made by it in ss.6 of the Credit Agreement, PROVIDED, that all
references therein to the Credit Agreement shall refer to such Credit Agreement
as amended hereby.
ss.6. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto are
hereby ratified and confirmed in all respects and shall continue in full force
and effect. The Credit Agreement and this First Amendment shall be read and
construed as a single agreement. All references in the Credit Agreement or any
related agreement or instrument to the Credit Agreement shall hereafter refer to
the Credit Agreement as amended hereby.
ss.7. NO WAIVER. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of SRI, the
Borrower or any rights of the Agent or the Banks consequent thereon.
ss.8. COUNTERPARTS. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
ss.9. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as a document under seal as of the date first above written.
SPECIALTY RETAILERS, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President,
Secretary and Treasurer
PALAIS ROYAL, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President,
Secretary and Treasurer
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
UNION BANK
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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RATIFICATION OF GUARANTY
The undersigned guarantor (the "Guarantor") hereby acknowledges and
consents to the foregoing First Amendment as of July 7, 1995 and agrees that the
Guaranty dated as of March 31, 1995, in favor of the Agent for the benefit of
the Agent and the Banks, and all other Loan Documents to which the Guarantor is
a party remain in full force and effect, and the Guarantor confirms and ratifies
all of its obligations thereunder.
SPECIALTY RETAILERS, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President,
Secretary and Treasurer