EXHIBIT 10.40
FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
("Agreement") made and entered into May 12, 2000 by and among BANK OF AMERICA,
N.A., the successor in interest to NationsBank, N.A. ("Lender") and CHICO'S
FAS, INC., a Florida corporation ("FAS"), CHICO'S CONCEPT, INC., a Florida
corporation ("Concept") CHICO'S DISTRIBUTION, INC., a Florida corporation
("Distribution") and CHICO'S MEDIA, INC., a Florida corporation ("Media")
(individually "Obligor" and collectively, "Obligors") is dated effective this
January 15, 2002.
BACKGROUND
WHEREAS, Lender has established a real estate term facility and a
revolving credit facility for Obligors pursuant to the Agreement; and
WHEREAS, Obligors have requested the Lender to extend the maturity
date of the real estate term facility; and
WHEREAS, the parties desire to set forth the mutually agreed upon
terms and conditions to the Agreement to address the extension of the maturity
of the real estate term facility.
NOW THEREFORE, in consideration of the premises and the mutual
agreements, covenants and conditions herein, Obligors and Lender agree as
follows:
1. The following Definitions under Section 1 are hereby amended:
"Real Estate Loan" means the loan between FAS and Lender, in the
principal amount, as of January 31, 2002, of $5,155,500.00.
"Real Estate Loan Maturity Date" shall mean February 15, 2012.
"Real Estate Note" means that certain Renewal Promissory Note dated
January 15, 2002 to Lender from FAS in the original principal sum of Five
Million One Hundred Fifty Thousand Five Hundred and 00/100 Dollars and all
further extensions, consolidations and renewals thereof.
"Security Instruments" shall mean Mortgage And Security Agreement,
dated June 14, 1994, recorded at O.R. Book 2510, Page 3237, as amended by
instruments recorded in O.R. Book 2558, Page 1030, O.R. Book 2576, Page 0693,
O.R. Book 2641, Page 0680, Assignment in O.R. Book 2665, Page 2918, and Future
Advance And Modification in O.R. Book 2665, Page 2925, and Amended and Restated
Mortgage Security Agreement and Assignment of Rents recorded in O.R. Book 2665,
Page 2931, all of the Public Records of Lee County, Florida, and such further
amendments and restatements, recorded in O.R. Book 2665, Page 2931, of the
Public Records of Lee County, Florida and as further amended on even date of
this Amendment to the Agreement, together with Uniform Commercial Code filing
statements associated therewith, recorded under filing statement 940000163547
with the Secretary of State, as may have been continued from time to time, and
filing statement, recorded in O.R. Book 2510, Page 3256, of the Public Records
of Lee County, Florida, as may have been continued from time to time, and
Collateral Assignment Of Rents And Leases, dated June 14, 1994, recorded in
O.R. Book 2510, Page 3249, and modified in O.R. Book 2558, Page 1030, O.R. Book
2576, Page 0693, O.R. Book 2641, Page 680, and assigned in O.R. Book 2665, Page
2918, all of the Public Records of Lee County, Florida, as further modified
from time to time. Security Instruments shall further include any and all
security agreements and any and all other documents evidencing a pledge of
assets to secure the Real Estate Note.
"Title Agent" shall mean Trenam, Kemker, Scharf, Barkin, Frye, O'Neill
& Mullis, P.A. as agent for Chicago Title Insurance Company.
"Title Policy" shall mean Chicago Title Insurance Company Policy
No. 10-2003-107-00000001 and all endorsements thereto, up to and including
endorsement No. 4.
2. Section 1.4 paragraph a is amended to read:
1.4 INTEREST CALCULATIONS.
A. Except as otherwise provided herein under 1.4(d),
Interest on the Loans shall, until an Event of Default or maturity, accrue
interest at the Libor Rate as adjusted pursuant to the following performance
standards schedule based upon the ratio of Obligors' Total Funded Debt to
Obligors' EBITDA on a Consolidated Basis:
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RATIO LEVEL INTEREST RATE
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2.26 x > Default Rate
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1.51 to 2.25 x Libor Rate + 290 Basis Pts.
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1.01 to 1.50 x Libor Rate + 220 Basis Pts.
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...51 to 1.00 x Libor Rate + 150 Basis Pts.
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0 to .50 x Libor Rate + 80 Basis Pts.
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3. Section 2.3 is hereby amended to read:
2.3 REAL ESTATE LOAN.
A. FAS has granted Lender a first priority perfected
lien on the parcel of land and improvements owned by FAS in fee simple
located in Lee County, Florida, consisting of a commercial building,
and pledged under the Security Instruments consisting of the mortgage
and collateral assignment of rents. In connection with the
modification and extension of the maturity date of the Real Estate
Loan, FAS will secure the delivery of a mortgagee title insurance
commitment to endorse the Title Policy, proposing to insure the
mortgage, as modified, as a valid first mortgage lien upon the Real
Estate after recordation of the modification of the mortgage, the
original final mortgagee policy endorsement for which shall be
delivered to Lender no less than 30 days following the execution and
delivery of the mortgage modification agreement. The premium for the
mortgagee title insurance endorsement coverage shall be paid for by
FAS at the time of execution of this amendment. The final policy, as
endorsed, shall contain only such exceptions as are acceptable to
Lender. The modification to the mortgage shall be recorded in the
Public Records of Lee County, Florida.
B. Concept, Distribution and Media shall execute
reaffirmations of these respective Guaranty Agreements in connection
with the extension of the maturity date of the Real Estate Loan.
3. Additional Representations and Warranties of the Obligors. Obligors
hereby make the following additional representations and warranties under
Section 4, to the Lender. So long as any of the Indebtedness is outstanding:
a. No Change. Since the last Statement Date, there has been no
material adverse change in the business, operations, assets, or financial or
other condition of Obligors except as specifically disclosed to Lender in
writing or in the SEC Reports or in Financial Statements delivered by Obligors
to Lender since the Statement Date. Since the last Statement Date, no Obligor
has entered into, incurred, or assumed any material long-term debt, mortgages,
or material leases.
b. No Legal Bar. The execution, delivery, and performance of the
Loan Documents and specifically this amendment and the documents associated
with the Real Estate Loan and the borrowing hereunder and the use of the
proceeds thereof, will not violate any material Requirement of Law or any
material Contractual Obligation of any Obligor or create or result in the
creation of any Lien on any assets of any Obligor except in favor of Lender.
c. No Material Litigation. That, except as disclosed in the SEC
Reports or in Exhibit "A" hereto, there is no material litigation,
investigation, or proceeding (including, without limitation, claims arising out
of violation of any Environmental Laws or improper use or disposal of any
Hazardous Substances) of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of any Obligor threatened by or against any
Obligor, or against any of such parties' properties or revenues which is likely
to be adversely determined and which, if adversely determined, is likely to
have a material adverse effect on the business, operations, property, or
financial or other condition of such Obligor.
d. Taxes. Each Obligor has filed or caused to be filed all tax
returns that are required to be filed and have paid all taxes shown to be due
and payable on said returns or on any assessments made against them or any of
their property other than taxes that are being contested in good faith by
appropriate proceedings and as to which such Obligor has established adequate
reserves.
e. Assets. Each Obligor has good and marketable title to all
property and assets reflected in the most current Financial Statements, except
property and assets sold or otherwise disposed of in the ordinary course of
business subsequent to the respective dates thereof. No Obligor has any
outstanding material liens on any of their material properties or material
assets nor are there any material security agreements to which either of them
is a party, or title retention agreements, whether in the form of leases or
otherwise, of any personal property except as reflected in the most current
Financial Statements.
4. Each Obligor acknowledges that they have no claims of offset or
defenses to the Indebtedness and hereby confirm that there has been no Event of
Default under the Agreement or the Loan Documents. Each Obligor waives any and
all claims of offset or defenses to the Loan Documents and the Indebtedness as
a condition to the extension of the maturity date of the Real Estate Loan by
Lender.
5. These covenants shall be deemed supplemental to the covenants
contained within the Agreement unless they expressly conflict with such
covenants in which event these provisions shall prevail.
6. In all other respects, Obligors and Lender hereby ratify and confirm
the terms and conditions of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
OBLIGORS:
CHICO'S FAS, INC., a Florida corporation
/s/ Sheryl L. Terzian By: /s/ Charles J. Kleman
- ---------------------------------- --------------------------------------
Print name: Sheryl L. Terzian Print Name: Charles J. Kleman
----------------------- Its Executive Vice President - Finance
Witness as to all
CHICO'S CONCEPT, INC., a Florida
corporation
By: /s/ Charles J. Kleman
--------------------------------------
Print Name: Charles J. Kleman
Its Treasurer
CHICO'S DISTRIBUTION, INC.,
a Florida corporation
By: /s/ Charles J. Kleman
--------------------------------------
Print Name: Charles J. Kleman
Its President
CHICO'S MEDIA, INC., a Florida
corporation
/s/ Sheryl L. Terzian By: /s/ Charles J. Kleman
- ---------------------------------- --------------------------------------
Print name: Sheryl L. Terzian Print Name: Charles J. Kleman
----------------------- Its Secretary
Witness as to all
LENDER:
BANK OF AMERICA, N.A.
/s/ Sheryl L. Terzian By: /s/ James Allgood
- ---------------------------------- --------------------------------------
Print name: Sheryl L. Terzian James Allgood, Senior Vice President
-----------------------
/s/ Charles J. Kleman
- ----------------------------------
Print name: Charles J. Kleman
-----------------------