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EXHIBIT 4.1
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") dated as
of May 31, 1998, by and among AMC, INC., a Georgia corporation (hereinafter,
together with its successors in title and assigns called "Borrower"), and THE
PROVIDENT BANK, an Ohio banking corporation ("Agent"), and various Lenders as
set forth on Schedule 1 to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENT
WHEREAS, Borrower, Agent and Lenders have entered into a certain
Credit Agreement dated as of September 30, 1995 (the "Credit Agreement");
WHEREAS, Borrower has requested and Lenders have agreed upon certain
conditions, to increase the Maximum Revolving Commitment from Ten Million
Dollars ($10,000,000) to Twenty Million Dollars ($20,000,000) and to amend
certain other terms and provisions of the Credit Agreement.
NOW, THEREFORE, the parties hereto agree to supplement and amend the
Credit Agreement upon such terms and conditions as follows:
1. Capitalized Terms. All capitalized terms used herein shall
have the meanings assigned to them in the Credit Agreement unless the context
hereof requires otherwise. Any definitions of capitalized terms set forth
herein shall be deemed incorporated into the Credit Agreement as amended by
this First Amendment.
2. Definitions.
(a) Section 1.2 of the Credit Agreement is hereby
amended by amending and restating in their entirety the following
definitions:
"Collateral" means all of Borrower's Accounts, Inventory,
Equipment, General Intangibles, fixtures, goods, motor vehicles,
leasehold improvements, Documents, Instruments, Chattel Paper,
Intellectual Property, inventory subject to leases and rights under
lease agreements for the leasing of inventory, money, deposit
accounts, rights to draw on letters of credit, permits, licenses and
the cash or noncash Proceeds (including insurance or other rights to
receive payment with respect thereto) of any of the foregoing and all
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accessions and additions to and replacements of the foregoing, and all
books and records (including, without limitation, customer lists,
credit files, computer programs, printouts and other computer
materials and records of Borrower) pertaining to any of the foregoing
and relating to or used in connection with the ownership, maintenance,
management or operation of the Atlanta Merchandise Mart or the Atlanta
Apparel Mart (herein, together with the real property, buildings and
fixtures described in the Mortgages, and all other property and rights
assigned by Borrower to Agent, on behalf of the Lenders, to secure
Borrower's obligations under the Loan Documents).
"Commitment Fee" means a fee equal to three-eighths of one
percent (0.375%) per annum (computed on the basis of a 360-day year
for the actual number of days elapsed) on the daily unused amount of
the Maximum Revolving Commitment.
"Libor Rate" means for each Interest Period, the sum of Libor
plus two and one-tenth percent (2.10%).
"Maximum Revolving Commitment" means Twenty Million Dollars
($20,000,000).
"Revolving Credit Notes" means, collectively, with respect to
the Credit Loan, amended and restated promissory notes of Borrower,
dated as of the First Amendment Closing Date, in the aggregate
principal amount of the Maximum Revolving Commitment, in or
substantially in the form of Exhibit C attached to this First
Amendment, as the same may be amended, modified or restated.
"Revolving Credit Note" shall mean any one of the Revolving Credit
Notes
"Termination Date" means the earlier of (i) the third
anniversary of the First Amendment Closing Date; (ii) the date upon
which the entire principal of the Notes shall become due pursuant to
the provisions hereof (whether as a result of acceleration by Agent or
the Requisite Lenders or otherwise); or (iii) the date upon which the
Credit Commitments terminate pursuant to Section 9.2 hereof.
(b) The Credit Agreement is hereby amended to add the
following definitions to Section 1.2:
"Chattel Paper" means any "chattel paper" as such term is
defined in Section 9-105(1)(b) of the UCC (but only to the extent such
arises in connection with, and relates directly to the ownership,
maintenance, management or operation of, the Atlanta Apparel Mart or
the Atlanta Merchandise Mart), now or hereafter acquired by Borrower.
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"Documents" mean any "documents," as such term is defined in
Section 9-105(1)(f) of the UCC (but only to the extent such arises in
connection with, and relates directly to the ownership, maintenance,
management or operation of, the Atlanta Apparel Mart or the Atlanta
Merchandise Mart), now owned or existing or hereafter arising or
acquired by Borrower.
"Equipment" means any "equipment," as such term is defined in
Section 9-109(2) of the UCC (but only to the extent such arises in
connection with, and relates directly to the ownership, maintenance,
management or operation of, the Atlanta Apparel Mart or the Atlanta
Merchandise Mart), now owned or hereafter acquired by Borrower and
shall include, without limitation, any and all additions,
substitutions, and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts and
accessories installed thereon or affixed thereto.
"First Amendment Closing Date" means May 31, 1998.
"First Amendment Closing Fee" means a fee equal to One
Hundred and Twenty Thousand Dollars ($120,000), payable in full in
immediately-available funds on the First Amendment Closing Date.
"General Intangibles" means any "general intangibles" as such
term is defined in Section 9-106 of the UCC (but only to the extent
such arises in connection with, and relates directly to the ownership,
maintenance, management or operation of, the Atlanta Apparel Mart or
the Atlanta Merchandise Mart), now owned or hereafter acquired and, in
any event, shall include, without limitation, all right, title and
interest now in existence or hereafter arising in or to all customer
lists, trademarks, patents, rights in intellectual property, trade
names, copyrights, trade secrets, proprietary or confidential
information, inventions and technical information, procedures,
designs, knowledge, know-how, software, data bases, data, processes,
models, drawings, materials, and records now owned or hereafter
acquired, and any and all goodwill and rights of indemnification.
"Instruments" mean any "instrument," as such term is defined
in Section 9-105(1)(i) of the UCC (but only to the extent such arises
in connection with, and relates directly to the ownership,
maintenance, management or operation of, the Atlanta Apparel Mart or
the Atlanta Merchandise Mart), now owned or hereafter acquired by
Borrower.
"Inventory" means Borrower's inventory (but only to the
extent such arises in connection with, and relates directly to the
ownership, maintenance, management or operation of, the Atlanta
Apparel Mart or the Atlanta Merchandise Mart), including without
limitation: (i) all raw materials used or consumed in Borrower's
business, wherever located
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and whether in the possession of such Borrower or any other Person;
(ii) all goods, wares and merchandise, finished or unfinished, held for
sale or lease or leased or furnished or to be furnished under contracts
of service, wherever located and whether in the possession of Borrower
or any other Person; and (iii) all goods returned to or repossessed by
such Person.
"Prime Rate Loans" mean the Loan(s) which bear interest at
the Prime Rate.
(c) Section 1.2 of the Credit Agreement is hereby
amended by deleting in their entirety the definitions "Adjusted Prime
Rate" and "Adjusted Prime Rate Loans." Further, the Credit Agreement
and other Loan Documents are hereby amended by substituting all
references to "Adjusted Prime Rate" and "Adjusted Prime Rate Loans"
with "Prime Rate" and "Prime Rate Loans," respectively. References in
the Loan Documents to the "Loan Documents," "Loans" and "Notes" and
other documents, instruments, and other agreements executed in
connection with the Loans shall in each case refer to each such
document, instrument or other agreement, as it may be amended or
restated from time to time.
3. Exhibits and Schedules.
(a) Exhibit C of the Credit Agreement is hereby amended
in its entirety by Exhibit C attached to this First Amendment.
(b) Schedule 1 of the Credit Agreement is hereby amended
in its entirety by Schedule 1 attached to this First Amendment.
4. The Note. Section 2.4 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"The absolute and unconditional obligation of
Borrower to repay to each Lender its respective
Pro Rata Share of the principal of the Loans and
the interest thereon shall be evidenced by a
separate Revolving Credit Note for each Lender
in the amount of its respective Credit Commitment
for each Loan dated as of the First Amendment
Closing Date. All payments under the Notes shall
be made to Agent at its Head Office, for the
account of Lenders, and Agent shall allocate
all payments on each Loan received from Borrower
among all Lenders in accordance with each Lender's
Pro Rata Share of such Loan in accordance with
Section 2.7(b)."
5. Interest Payable on the Loans. Sections 2.5(a), 2.5(c) and
2.5(g) of the Credit Agreement are hereby amended in their entirety to read as
follows:
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"(a) Interest Rate. Except as otherwise provided herein,
the Loans shall bear interest on the daily outstanding principal
balance thereunder at an annual rate equal to, at Borrower's option,
the Prime Rate or Libor Rate; provided, however that at all times, at
least one-half (2) of the aggregate amount of funds drawn under the
Revolving Credit Loan shall, at all times, bear interest on the daily
outstanding principal balance thereunder at an annual rate equal to
the Prime Rate. Each Libor Rate Loan shall bear interest from and
including the first day of the Interest Period applicable thereto to
(but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Libor Rate Loan.
Borrower shall select Interest Periods with respect to Libor Rate
Loans so that it is not necessary to pay a Libor Rate Loan prior to
the last day of the applicable Interest Period in order to repay the
Loans on the Termination Date."
"(c) Conversions. Borrower may elect from time to time to
convert all or part of the outstanding principal balance of any
Revolving Credit Loan from a Prime Rate Loan to a Libor Rate Loan by
the Borrower's giving Agent at least three (3) Business Days' prior
irrevocable notice of such an election; provided, that no Loan may be
converted to a Libor Rate Loan while a Default or an Event of Default
has occurred and is continuing; provided, further, that no Loan may be
converted to a Libor Rate Loan if such conversion would result in less
than one-half of the aggregate outstanding principal amount drawn
under the Notes bearing interest at the Prime Rate. Borrower may also
elect from time to time to continue any outstanding Libor Rate Loan
(whether for a similar or a different Interest Period) upon expiration
of the Interest Period then applicable thereto by the Borrower's
giving the Agent at least three (3) Business Days' prior irrevocable
notice of such continuation of such Libor Rate Loan; provided, that no
Revolving Credit Loan may be continued as a Libor Rate Loan while a
Default or an Event of Default has occurred and is continuing or if
such continuance would result in less than one-half of the aggregate
outstanding principal amount drawn under the Notes accruing interest
at the Prime Rate."
"(g) Monthly Installments. Borrower shall pay to Agent
for the account of Lenders, monthly in arrears on the first Business
Day of each month beginning with the month following the month in
which the First Amendment Closing Date falls, (i) interest on the
outstanding principal amount of the Prime Rate Loans at the annual
rate equal to the Prime Rate and (ii) interest on the outstanding
principal amount of the Libor Rate Loans at the annual rate equal to
the Libor Rate; provided, however, that if Borrower elects to convert
a Prime Rate Loan, or any portion thereof, to a Libor Rate Loan,
Borrower shall pay to Agent, for the account of Lenders, all accrued
but unpaid interest on the Prime Rate Loan or such portion thereof
being converted for the period commencing on the date of last payment
date under this paragraph 2.5(g) to the first day of the interest
period for the Libor Rate Loan into which the Prime Rate Loan was
converted; provided, further, the first monthly
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installment after the First Amendment Closing Date shall include all
accrued and unpaid interest on the Loans as of the First Amendment
Closing Date."
6. Repayment and Prepayment of Principal. Section 2.6(c) of the
Credit Agreement is hereby amended in its entirety to read as follows:
"(a) Maturity. Subject to the terms and conditions of
this Agreement, Borrower will be entitled to reborrow all or any part
of the principal of the Revolving Credit Notes repaid or prepaid prior
to the Termination Date. The Credit Commitments shall terminate and
all of the Indebtedness evidenced by the Revolving Credit Notes shall,
if not sooner paid, be in any event absolutely and unconditionally due
and payable in full by Borrower on the third anniversary of the First
Amendment Closing Date, the date of final maturity of such Notes."
7. Repayments and Prepayments of Principal. Section 2.6(d) of
the Credit Agreement is hereby amended in its entirety to read as follows:
"(d) Prepayment Fees. Borrower may voluntarily prepay the
Obligations in full or in part at any time, without premium or
penalty."
8. Security Interest. Section 3.1 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Section 3.1 Security Interest. To secure the prompt
repayment of the Notes and the Obligations, Borrower hereby grants,
and hereby pledges and collaterally assigns, to Agent, on behalf of
the Lenders, a lien and security interest in and to and all of
Borrower's personal property and fixtures, located in or on the
Atlanta Merchandise Mart and the Atlanta Apparel Mart, whether now or
hereafter owned, existing or acquired or hereafter arising, including,
without limitation the Collateral. To secure further such liabilities
and obligations, Borrower has granted to Agent, on behalf of the
Lenders, a first lien upon certain real property owned by Borrower
identified on Schedule 3.1; has executed and delivered to Agent, on
behalf of the Lenders, security agreements or deeds, and valid
assignments of all other property rights (including, without
limitation, rights to receive rents and rights with respect to
judgments and claims) which now exist or which may exist or arise
hereafter from time to time with respect to the Atlanta Merchandise
Mart and the Atlanta Apparel Mart; and shall deliver to Agent, on
behalf of the Lenders, to the extent required herein or upon Agent's
request in accordance with the terms of this Agreement, all
instruments, documents and chattel paper in which Borrower from time
to time has an interest and such other documents as Agent may request
to perfect a security interest in the Collateral."
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9. Borrower's Depository Account. The Credit Agreement is hereby
amended to add, in its entirety, Section 6.15 to read as follows:
"6.15 Borrower's Depository Accounts. Borrower shall
concentrate all of its bank and depository accounts with Agent,
including without limitation, all demand deposit, time deposit,
concentration and zero balance accounts except that Borrower may
maintain operating accounts with any local financial institution,
provided Borrower shall use its best efforts to maintain such account
with one or more Lenders."
10. Reaffirmation of Covenants, Warranties and Representations.
Borrower hereby agrees and covenants that all representations and warranties in
the Credit Agreement, including without limitation, all of those warranties and
representations set forth in Article 5, are true and accurate in all material
respects as of the date hereof. Borrower further reaffirms all covenants in the
Credit Agreement, and reaffirms each of the affirmative covenants set forth in
Article 6 and the financial and negative covenants set forth in Articles 7 and
8, respectively, thereof, as if fully set forth herein, except to the extent
modified by this First Amendment.
11. Conditions Precedent to Closing of First Amendment. On or
prior to the First Amendment Closing Date, each of the following conditions
precedent shall have been satisfied:
(a) Proof of Corporate Authority. Lenders shall have
received from Borrower (i) copies, certified by a duly authorized
officer to be true and complete on and as of the First Amendment
Closing Date, of records of all action taken by Borrower to authorize
the execution and delivery of this First Amendment and all other
certificates, documents and instruments to which it is or is to become
a party as contemplated or required by this First Amendment, and its
performance of all of its obligations under each of such documents,
and (ii) certificates of incumbency for the officers of Borrower.
(b) Certified Copies of Organizational Documents. Agent
shall have received from Borrower a certificate from an officer
certifying that there have been no amendments, revisions or
supplements to the organizational documents previously delivered to
Agent at the Closing and that the same are in full force and effect.
(c) Good Standing. Agent shall have received from
Borrower a certificate from the Secretary of State of the state of
Borrower's incorporation and all other states in which Borrower is
qualified to do business that Borrower is in good standing.
(d) Documents. Each of the documents to be executed and
delivered at the closing and all other certificates, documents and
instruments to be executed in connection herewith including, without
limitation, a Revolving Credit Note in the form of Exhibit C
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attached to this First Amendment, shall have been duly and properly
authorized, executed and delivered by Borrower and shall be in full
force and effect on and as of the First Amendment Closing Date.
(e) Legality of Transactions. No change in applicable
law shall have occurred as a consequence of which it shall have become
and continue to be unlawful (i) for Lender to perform any of its
agreements or obligations under any of the Loan Documents, or (ii) for
Borrower to perform any of its agreements or obligations under any of
the Loan Documents.
(f) Performance. Borrower shall have duly and properly
performed, complied with and observed each of its covenants,
agreements and obligations contained in each of the Loan Documents.
Except as set forth herein, no event shall have occurred on or prior
to the First Amendment Closing Date, and no condition shall exist on
the First Amendment Closing Date, which constitutes a Default or an
Event of Default.
(g) Perfection of Security Interests. Agent shall have
received all Uniform Commercial Code Financing Statements required or,
in Agent's opinion, advisable to be filed in order to create, in favor
of the Agent for the benefit of Lenders, a perfected Lien on the
Collateral with respect to which a Lien can be perfected by means of
filing Uniform Commercial Code Financing Statements (or for the filing
of an application for certificate of title); said Financing Statements
shall have been properly filed in each office in each jurisdiction in
which such filings are required or, in the opinion of Agent,
advisable; Agent shall have received confirmation from its counsel or
counsel to Borrower that all such filings and recordations have been
made, and that all necessary filing, subscription and inscription fees
and all recording and other similar fees, and all taxes and other
expenses related to such filings and recordings have been paid or
provided for in full by or on behalf of Borrower;
(h) Priority. Agent shall have received evidence
reasonably satisfactory to Lenders that Agent's Liens for the benefit
of Lenders are first and prior, and there are no other superior,
equal, or inferior Liens except the Permitted Liens;
(i) Closing Fee. Borrower shall have paid to Agent for
the benefit of Lenders an amount equal to the First Amendment Closing
Fee minus the amount paid by Borrower to Agent as a retainer upon
execution of the proposal letter.
(j) Consents of Bond Holders. Agent shall have received
satisfactory evidence of the consent of the required majority of the
holders of the Bonds to the execution of this First Amendment and the
transactions contemplated herein.
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(k) Amendment to Intercreditor Agreement. Borrower shall
have delivered to Agent an Amendment to the Intercreditor Agreement
duly executed by the Trustee of the Mart Bonds and Borrower in a form
satisfactory to Agent.
(l) Gift Mart Financing. Borrower shall have delivered
to Agent written evidence of any consent of Bank of America, N.T. &
S.A. or any other third party that may be required by the terms of the
documents evidencing the Gift Mart Financing.
(m) Mortgage and Title Insurance. Borrower shall have
executed and delivered amendments or modifications to the Mortgages,
in a form satisfactory to Agent and Lenders. Further, Borrower shall
cause the Title Company to deliver to Agent an endorsement to the ALTA
Title Insurance Loan Policy that was delivered to Agent at Closing,
updating title and showing only such matters as may be acceptable to
Agent and Lenders, and further insuring the Mortgages, as amended.
Borrower shall have paid to the Title Company all expenses
and premiums of the Title Company in connection with the update of
title and the issuance of such endorsements. In addition, Borrower
shall have paid to the Title Company or the Agent an amount equal to
all mortgage and mortgage recording taxes, intangibles taxes, stamp
taxes and other taxes payable in connection with the execution and
delivery of the amendments to the Mortgages and the obligations
secured thereby and the recording of the amendments to the Mortgages
in the appropriate land offices.
(n) Flood Certification. Borrower shall deliver to Agent
a Federal Emergency Management Agency ("FEMA") Form 81-93, the
Standard Flood Hazard Determination Form, certifying that the Real
Estate is not located in a flood plain zone.
(o) Legal Opinion. Agent shall have received a written
legal opinion, addressed to Agent and Lenders and dated as of the
First Amendment Closing Date, from legal counsel for Borrower, which
shall be in a form acceptable to Agent, opining as to (i) the due
execution, delivery and enforceability of the documents to be
delivered in connection herewith; and (ii) the corporate existence,
good standing and authority of Borrower.
(p) Legal Fees. Borrower shall have reimbursed Agent for
all fees and disbursements of legal counsel to Agent (in its capacity
as Agent and a Lender), which shall have been incurred by Agent
through the First Amendment Closing Date in connection with the
preparation, negotiation, review, execution and delivery of this First
Amendment and the handling of any other matters incidental thereto.
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12. Miscellaneous.
(a) All of the terms, conditions and provisions of the
Credit Agreement not herein modified shall remain in full force and
effect. In the event a term, condition or provision of the Credit
Agreement conflicts with a term, condition or provision of this First
Amendment, the latter shall govern.
(b) This First Amendment shall be governed by and shall
be construed and interpreted in accordance with the laws of the State
of Ohio.
(c) This First Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
(d) This First Amendment may be executed in several
counterparts, each of which shall constitute an original, but all
which together shall constitute one and the same agreement.
[Space intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered by or on behalf of each of the parties as of the day and in the year
first above written.
BORROWER:
AMC, INC., a Georgia corporation
By: /S/: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Chief Financial Officer
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AGENT:
THE PROVIDENT BANK, Agent
By: /S/: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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LENDER:
THE PROVIDENT BANK, Lender
By: /S/: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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SCHEDULE 1
CREDIT PARTICIPATION
LENDER COMMITMENT PERCENTAGE
THE PROVIDENT BANK Revolving Credit Loan
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ $20,000,000.00 100%
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇