EXHIBIT 10.34
EXECUTION
AMENDMENT NO. 7 TO
AMENDED AND RESTATED CREDIT AGREEMENT
Amendment ("Amendment") dated as of June 12, 2001 by and among ▇▇▇▇▇*s
Group Inc., a Delaware corporation, formerly known as ▇▇▇▇▇ Inc. ("▇▇▇▇▇*s"),
the Subsidiaries of ▇▇▇▇▇*s set forth on Schedule 1 attached hereto
(collectively, the "Subsidiary Borrowers"), ▇▇▇▇▇*s Corp., a Delaware
corporation, formerly known as iTurf, Inc. ("Parent"), its wholly owned
subsidiary, iTurf Finance Company ("iFC", and together with ▇▇▇▇▇*s, the
Subsidiary Borrowers and Parent, each individually a "Borrower", and
collectively, "Borrowers") and Congress Financial Corporation, a Delaware
corporation ("Lender").
W I T N E S S E T H
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WHEREAS, Borrowers and Lender have entered into financing arrangements
pursuant to which Lender has made and may make loans and advances and provide
other financial accommodations to Borrowers as set forth in the Amended and
Restated Credit Agreement, dated April 28, 2000, by and among Lender and
Borrowers, as amended by Amendment No. 1 to Amended and Restated Credit
Agreement, dated as of July 31, 2000, by and among Borrowers and Lender,
Amendment No. 2 to Amended and Restated Credit Agreement, dated as of November
10, 2000, by and among Borrowers and Lender, Amendment No. 3 to Amended and
Restated Credit Agreement, dated as of November 20, 2000, by and among Borrowers
and Lender, Amendment No. 4 to Amended and Restated Credit Agreement, dated as
of January 19, 2001, by and among Borrowers and Lender, Amendment No. 5 to
Amended and Restated Credit Agreement, dated as of February 2, 2001, by and
among Borrowers and Lender and Amendment No. 6 to Amended and Restated Credit
Agreement, dated as of May 4, 2001, by and among Borrowers and Lender(as amended
hereby and as the same may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, the "Credit Agreement") and the other
agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto, including
this Amendment (all of the foregoing, including the Credit Agreement, as the
same now exist or may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, being collectively referred to herein
as the "Financing Agreements"); and
WHEREAS, Borrowers have requested that Lender agree to certain
amendments to the Credit Agreement and Lender is willing to agree to such
amendments, subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements and covenants set forth herein, and for other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. DEFINITIONS.
1.1 ADDITIONAL DEFINITION. As used herein, the following terms shall
have the respective meanings given to them below and the Credit Agreement shall
be deemed and is hereby amended to include, in addition and not in limitation
of, the following definition:
"AMENDMENT NO. 7" shall mean this Amendment No. 7 to Amended and
Restated Credit Agreement, by and among Lenders, Parent and the other Borrowers,
as the same now exists or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced.
1.2 INTERPRETATION. For purposes of this Amendment, all terms used
herein, including but not limited to, those terms used and/or defined herein or
in the recitals hereto shall have the respective meanings assigned thereto in
the Credit Agreement, unless otherwise defined herein.
Section 2. AMENDMENT. Section 6.7 of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
"6.7 ADJUSTED NET WORTH. Maintain an Adjusted Net Worth of
Parent and its consolidated Subsidiaries of not less than the amount
set forth below for the period indicated.
Period Amount
------ ------
(a) From and including the date of $ 7,500,000
Amendment ▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇) From and including October 1, 2001 $15,000,000
and at all times thereafter
Section 3. WAIVER OF EXISTING DEFAULT.
3.1 Subject to the terms and conditions contained herein, Lender hereby
waives Event of Default under Section 9.1(b) of the Credit Agreement resulting
from the failure of Parent and its consolidated subsidiaries to comply with
Section 6.7 of the Credit Agreement prior to the date hereof.
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3.2 Lender has not waived and is not by this Amendment waiving, and
have no present intention of waiving, any other Event of Default, which may have
occurred prior to the date hereof, or may be continuing on the date hereof or
any Event of Default which may occur after the date hereof, whether the same or
similar to the Events of Default described in Section 4.1(a) above or otherwise.
Lender reserves the right, in its discretion, to exercise any or all of its
rights and remedies arising under the Financing Agreements applicable or
otherwise, as a result of any other Events of Default which may have occurred
prior to the date hereof, or are continuing on the date hereof, or any Event of
Default which may occur after the date hereof, whether the same or similar to
the Event of Default described above or otherwise.
Section 4. REPRESENTATIONS AND WARRANTIES. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers to Lender pursuant to the other Financing Agreements, each
Borrower, jointly and severally, hereby represents, warrants and covenants with
and to Lender as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Financing Agreements):
4.1 CORPORATE POWER AND AUTHORITY. This Amendment has been duly
authorized, executed and delivered by all necessary action on the part of each
Borrower which is a party hereto and thereto and, if necessary, its
stockholders, and is in full force and effect as of the date hereof, as the case
may be, and the agreements and obligations of each Borrower contained herein and
therein constitute legal, valid and binding obligations of such Borrower
enforceable against it in accordance with their terms.
4.2 CONSENTS; APPROVALS. No action of, or filing with, or consent of
any Governmental Authority, and no approval or consent of any other party, is
required to authorize, or is otherwise required in connection with, the
execution, delivery and performance of this Amendment.
4.3 NO EVENT OF DEFAULT. As of the date hereof, and after giving effect
to the provisions of this Amendment, no Event of Default, and no condition or
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, exists or has occurred and is continuing. All of
the representations and warranties set forth in the Credit Agreement and the
other Financing Agreements, each as amended hereby, are true and correct in all
material respects on and as of the date hereof as if made on the date hereof,
except to the extent any such representation or warranty is made as of a
specified date, in which case such representation or warranty shall have been
true and correct as of such date.
Section 5. FEE. In consideration of this Amendment set forth herein,
Borrowers shall on the date hereof, pay to Lender, and Lender may, at its
option, charge the account of Borrowers maintained by Lender, a fee in the
amount of $75,000, which fee is fully earned and payable as of the date hereof
and shall constitute part of the Obligations.
Section 6. CONDITIONS PRECEDENT. This Amendment shall only be effective
upon the satisfaction of each of the following conditions precedent in a manner
satisfactory to Lender:
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6.1 Lender shall have received the fee set forth in Section 5 hereof,
6.2 Lender shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrowers, and
6.3 after giving effect to the provisions of this Amendment, no Event
of Default shall exist or have occurred and be continuing and no event shall
have occurred or condition be existing and continuing which, with notice or
passage of time or both, would constitute an Event of Default.
Section 7. ADDITIONAL EVENTS OF DEFAULT. The parties hereto
acknowledge, confirm and agree that the failure of Borrowers to comply with the
covenants and agreements contained herein, shall in each case constitute an
Event of Default under the Financing Agreements, subject to the applicable cure
period, if any, with respect thereto provided for in the Credit Agreement or
herein.
Section 8. PROVISIONS OF GENERAL APPLICATION.
8.1 EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto, no
other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control.
8.2 GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
8.3 BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
8.4 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the date and year
first above written.
▇▇▇▇▇*s GROUP INC., formerly known as
▇▇▇▇▇*s INC.
▇▇▇▇▇*s DISTRIBUTION COMPANY
▇▇▇▇▇*s FOREIGN SALES CORPORATION
▇▇▇▇▇*s OPERATING COMPANY
▇▇▇▇▇*s PROPERTIES INC.
▇▇▇▇▇*s RETAIL COMPANY
SCREEEM! INC.
STORYBOOK INC.
TSI SOCCER CORPORATION
TSI RETAIL COMPANY
▇▇▇▇▇*s CORP., formerly known as iTURF, INC.
iTURF FINANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
AGREED TO:
CONGRESS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
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SCHEDULE 1
SUBSIDIARY BORROWERS
▇▇▇▇▇*s Distribution Company
▇▇▇▇▇*s Foreign Sales Corporation
▇▇▇▇▇*s Operating Company
▇▇▇▇▇*s Properties Inc.
▇▇▇▇▇*s Retail Company
Screeem! Inc.
Storybook Inc.
TSI Soccer Corporation
TSI Retail Company