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EXHIBIT 10.1
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XX-XXX STORES, INC.
AS THE BORROWER
THE LENDERS NAMED HEREIN
AS LENDERS
THE FIRST NATIONAL BANK OF CHICAGO
AS DOCUMENTATION AGENT
COMERICA BANK
NATIONAL CITY BANK
AS CO-AGENTS
[KEYCORP LOGO]
KEYBANK NATIONAL ASSOCIATION,
AS A LENDER, THE SWING LINE LENDER, THE ISSUING BANK AND
AS ADMINISTRATIVE AGENT
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AMENDMENT NO. 1
DATED AS OF
DECEMBER 14, 1999
TO
CREDIT AGREEMENT
DATED AS OF
MAY 5, 1999
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of December 14, 1999
("THIS AMENDMENT"), among:
(i) XX-XXX STORES, INC., an Ohio corporation (herein,
together with its successors and assigns, the "Borrower");
(ii) the Lenders party hereto (the "LENDERS"); and
(iii) KEYBANK NATIONAL ASSOCIATION, a national banking
association, as a Lender, the Swing Line Lender, the Issuing Bank and
as the Administrative Agent under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, and the Administrative
Agent entered into the Credit Agreement, dated as of May 5, 1999 (the "CREDIT
AGREEMENT"). Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement.
(2) The Borrower, the Lenders party hereto and the Administrative
Agent desire to amend certain of the provisions of the Credit Agreement, all as
more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Section 9.10 of the Credit Agreement
is amended by adding the following at the end thereof:
Notwithstanding the foregoing, the Borrower shall not be required to
comply with the covenant contained in this section 9.10 with respect to
the Testing Period ended on or nearest to October 31, 1999; otherwise,
this covenant shall be fully applicable to all other Testing Periods
referred to above in this section 9.10.
2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) AUTHORIZATION, VALIDITY AND BINDING EFFECT. This
Amendment has been duly authorized by all necessary corporate action
on the part of the Borrower, has been duly executed and delivered by a
duly authorized officer or officers of the Borrower, and constitutes
the valid and binding agreement of the Borrower, enforceable against
the Borrower in accordance with its terms.
(b) REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the
date hereof as though made on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to a
specified date, in which case such representations and warranties are
hereby reaffirmed as true and correct when made.
(c) NO EVENT OF DEFAULT, ETC. No condition or event has
occurred or exists which constitutes or which, after notice or lapse
of time or both, would constitute an Event of Default.
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(d) COMPLIANCE. The Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement, as amended
hereby.
3. RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Credit Agreement, and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Credit Agreement are ratified and
confirmed and shall continue in full force and effect.
4. EFFECTIVENESS. The amendments to the Credit Agreement provided for
in this Amendment shall become effective on if and when, on a date (the
"EFFECTIVE DATE") on or prior to December 14, 1999, the following conditions
shall have been satisfied:
(a) this Amendment shall have been executed by the Borrower
and the Administrative Agent and counterparts hereof as so executed
shall have been delivered to the Administrative Agent;
(b) the Acknowledgment and Consent appended hereto shall have
been executed by the Subsidiary Guarantors named therein, and
counterparts thereof as so executed shall have been delivered to the
Administrative Agent; and
(c) the Administrative Agent shall have been notified by the
Required Lenders that such Lenders have executed this Amendment (which
notification may be by facsimile or other written confirmation of such
execution).
After this Amendment becomes effective as provided herein, the Administrative
Agent will promptly furnish a copy of this Amendment to each Lender and the
Borrower and confirm the specific Effective Date hereof.
5. MISCELLANEOUS. (a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by the
Administrative Agent or any Lender or any subsequent Loan or other Credit Event
shall affect the representations and warranties or the right of the
Administrative Agent or any Lender to rely upon them.
(b) REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed
and delivered pursuant to the terms of the Credit Agreement as amended hereby,
are hereby amended so that any reference therein to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
(c) EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower agrees to pay on demand
all costs and expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, and execution of this Amendment, including
without limitation the costs and fees of the Administrative Agent's special
legal counsel, regardless of whether the amendments to the Credit Agreement
contemplated by this Amendment become effective in accordance with the terms
hereof, and all costs and expenses incurred by the Administrative Agent or any
Lender in connection with the enforcement or preservation of any rights under
the Credit Agreement, as amended hereby.
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(d) SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
(e) APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
(f) HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
(g) ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
(h) COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
[The balance of this page is intentionally blank.]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
XX-XXX STORES, INC. KEYBANK NATIONAL ASSOCIATION,
INDIVIDUALLY AS A LENDER, THE
ISSUING BANK AND THE
ADMINISTRATIVE AGENT
BY: /s/ XXXXX X. XXXXXX
-------------------- BY: /s/ XXX XXXXXXX
EXECUTIVE VICE PRESIDENT ---------------
& CHIEF FINANCIAL OFFICER VICE PRESIDENT
THE FIRST NATIONAL BANK OF CHICAGO, NATIONAL CITY BANK,
INDIVIDUALLY AS A LENDER AND INDIVIDUALLY AS A LENDER AND
AS DOCUMENTATION AGENT AS A CO-AGENT
BY: /s/ XXXXXXXXX X. XXXXXXXXX BY: /s/ XXX XXXXX
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VICE PRESIDENT VICE PRESIDENT
COMERICA BANK, FIRSTAR BANK, N. A.
INDIVIDUALLY AS A LENDER AND
AS A CO-AGENT
BY: /s/ XXXXX XXXXXXXXXXX
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BY: /s/ XXXXXXX JUDGE VICE PRESIDENT
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VICE PRESIDENT
FLEET NATIONAL BANK UNION BANK OF CALIFORNIA, N. A.
BY: /s/ XXXXXXX XXXXX
BY:_______________________________ ------------------
TITLE: VICE PRESIDENT
XXXXXX TRUST AND SAVINGS BANK MERCANTILE BANK NATIONAL ASSOCIATION
BY: /s/ XXXXXXX XXXXX
BY:_______________________________ ------------------
TITLE: VICE PRESIDENT
MELLON BANK, N. A. THE HUNTINGTON NATIONAL BANK
BY: /s/ XXXX XXXXXXX BY: /s/ XXXXX XXXXXX
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VICE PRESIDENT VICE PRESIDENT
FIFTH THIRD BANK, NORTHEASTERN OHIO
BY: /s/ XXX X. XXXXXXX
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VICE PRESIDENT
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