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Exhibit 10.28
SIXTH AMENDMENT TO
CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Sixth Amendment") is made
effective as of March 28, 2001, except as otherwise set forth herein, by and
among BED BATH & BEYOND INC., a New York corporation (the "Company"), and
BED-N-BATH STORES INC., a New Jersey corporation a/k/a BED 'N BATH STORES INC.
("BNBS"), BED BATH & BEYOND OF CALIFORNIA LIMITED LIABILITY COMPANY, a Delaware
limited liability company ("Calco"), and BBBY MANAGEMENT CORPORATION, a New
Jersey corporation ("BBBY", and together with BNBS, BBBL and Calco,
collectively, the "Guarantors" and individually, a "Guarantor," and the
Guarantors together with the Company, collectively, the "Credit Parties"); THE
CHASE MANHATTAN BANK, a New York banking corporation (the "Bank"); and BED BATH
& BEYOND PROCUREMENT CO. INC., a New York corporation ("Procurement Co.").
W I T N E S S E T H:
WHEREAS, the Credit Parties (and BBBL, Inc., a Delaware corporation and an
original Guarantor and Credit Party, which as of March 31, 2001 shall be merged
with and into the Company with the Company continuing as the surviving
corporation) and the Bank are parties to that certain Credit Agreement, dated as
of October 26, 1994, as amended by that certain First Amendment, dated as of
October 1, 1995, as further amended by that certain Second Amendment, dated as
of February 24, 1997, that certain Third Amendment, dated as of September 11,
1997, that certain Fourth Amendment, dated as of September 19, 1997, and that
certain Fifth Amendment, dated as of October 26, 1998 (such Credit Agreement, as
amended by the First Amendment, the Second Amendment, the Third Amendment, the
Fourth Amendment, and the Fifth Amendment shall hereafter be known as, the
"Credit Agreement"); and
WHEREAS, the Credit Parties and the Bank have agreed to further amend the
Credit Agreement to: (i) decrease the Revolving Credit Commitment to an
aggregate maximum principal amount of not to exceed at any time outstanding,
$25,000,000, (ii) effective March 31, 2001, add Bed Bath & Beyond Procurement
Co. Inc., a New York corporation and wholly-owned Subsidiary of the Company, as
a Guarantor and a Credit Party thereunder and an account party for Letters of
Credit as set forth therein, and (iii) otherwise modify certain of the terms and
provisions thereof;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
1. MODIFICATION OF THE CREDIT AGREEMENT. The Credit Agreement is hereby
amended in the following particulars:
(A) (i) Effective as of March 31, 2001, all references to the "Credit
Parties" in the Credit Agreement are deemed to mean,
collectively, the Company, BNBS, Calco, BBBY, and Procurement
Co., as defined in this Sixth Amendment; and
(ii) Effective as of March 31, 2001, all references to the
"Guarantors" in the Credit Agreement are deemed to mean,
collectively, BNBS, Calco, BBBY, and Procurement Co., as defined
in this Sixth Amendment;
(iii) All references to the "Agreement" or "this Agreement" in
the Credit Agreement are deemed to mean the Credit Agreement, as
amended by this Sixth Amendment; and all references to the "Loan
Documents" in the Credit Agreement are deemed to mean the Credit
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Agreement and the other Loan Documents, as amended by this Sixth
Amendment;
(iv) The aggregate maximum principal amount outstanding at any
one time under the Revolving Credit Commitment is set forth
opposite the Bank's name on the signature page of this Sixth
Amendment;
(v) All references to a "Responsible Officer" in the Credit
Agreement with respect to financial matters are deemed to include
the Vice President of Finance of the Company or any Guarantor, as
well as the chief financial officer thereof; and
(vi) All references to the "Revolving Credit Note(s)" or the
"Notes(s)" in the Credit Agreement are deemed to mean that
certain Third Amended and Restated Revolving Credit Note, dated
as of March 28, 2001, as attached to this Sixth Amendment as
EXHIBIT A (the "2001 Note"); and all references to the
"Obligations" in the Credit Agreement are deemed to include,
along with the other obligations set forth therein, all
obligations of the Credit Parties (as re-defined in this Sixth
Amendment) to the Bank under the 2001 Note.
(B) Procurement Co. has requested that going forward the Bank issue
Letters of Credit for its behalf (as well as for the account of Company).
Procurement Co. shall execute and deliver to the Bank an Application. From
and after March 31, 2001, upon receipt of such Application and in
accordance with and subject to the terms of Section 3 of the Credit
Agreement, the Bank hereby agrees to issue Letters of Credit for either or
both of the Company and Procurement Co. Henceforth, all references to "the
Company" throughout Section 3 of the Credit Agreement are deemed to mean
the Company and/or Procurement Co., as an account party.
(C) Section 14.2 of the Credit Agreement (Notices) is hereby amended
so that notices to the Bank read as follows:
"The Bank: The Chase Manhattan Bank
000 Xxxxx 00 Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, VP
Telecopy: (000) 000-0000/18"
Notices to the Bank's attorneys remain the same.
2. ESTOPPEL. To induce the Company, BNBS, Calco, and BBBY to enter into
this Sixth Amendment, each of the Company, BNBS, Calco, and BBBY
hereby represents and warrants to the Bank that:
(A) As of March 28, 2001, there is currently $-0- of principal,
together with accrued interest thereon, outstanding under the
Revolving Credit Loan; and to the best of the Company's knowledge, the
Company has no defenses, offsets or counterclaims regarding the same.
(B) As of March 28, 2001, there is currently the amount set forth in
SCHEDULE I to this Sixth Amendment of L/C Obligations outstanding
under the Credit Agreement, and to the best of the Company's
knowledge, the Company has no defenses, offsets or counterclaims
regarding the same.
(C) As of March 28, 2001, the Company has no defenses, offsets or
counterclaims regarding its other Obligations to the Bank under the
Credit Agreement.
(D) As of March 28, 2001, each of BNBS, Calco, and BBBY has no
defenses, offsets or counterclaims regarding its Obligations to the
Bank under the Credit Agreement.
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3. ADDITION OF PROCUREMENT CO. AS A CREDIT PARTY AND A GUARANTOR. From
and after March 31, 2001, Procurement Co. shall be considered a Credit
Party and Guarantor under the Credit Agreement and the other Loan
Documents and shall be bound by the terms and conditions thereof.
4. CONDITIONS PRECEDENT. The agreement of the Bank to amend the Credit
Agreement as set forth in this Sixth Amendment shall not become
effective unless the Bank shall have received, in form and substance
reasonably satisfactory to the Bank and its counsel, the following:
(A) This Sixth Amendment, duly executed and delivered by the parties
hereto;
(B) The 2001 Note, duly executed and delivered by the Company;
(C) (i) True and complete copies (including all amendments) of the
charter and bylaws of Procurement Co., certified by the corporate
secretary of Procurement Co. to be in full force and effect as of
March 31, 2001; and (ii) a corporate resolution of Procurement Co.,
certified by its corporate secretary as of March 31, 2001 and in full
force and effect authorizing: (x) the consummation of the transactions
contemplated by this Sixth Amendment, and (y) specific officers to
execute and deliver this Sixth Amendment and such other instruments
and documents as may be executed in connection herewith;
(D) A certificate of the corporate secretary of Procurement Co.
certifying the names of the officers authorized to execute this Sixth
Amendment and such other instruments and documents as may be executed
in connection herewith, together with the true and genuine signatures
of each of such officers;
(E) Good standing certificates of the appropriate Governmental
Authorities, dated the most recent practicable date on or about March
31, 2001, showing Procurement Co. to be in good standing in its state
of incorporation and such states in which such entity is authorized to
do business;
(F) Evidence of the merger of BBBL, Inc. with and into the Company,
and the Company's continuance as the surviving corporation;
(G) Payment of all reasonable fees and expenses incurred by the Bank
in connection with this Sixth Amendment, including, but not limited
to, reasonable fees and expenses of counsel to the Bank; and
(H) Such other documents, certificates, opinions, affidavits, etc. as
the Bank may reasonably request.
Notwithstanding anything contained in Section 3 to the contrary, the
items set forth in paragraphs (c) and (D) may be delivered by March
31, 2001, and the items set forth in paragraph (E) of this Section 3
may be delivered by April 16, 2001. The failure to deliver such items
within such time period will constitute an Event of Default.
5. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Procurement Co.
hereby makes the representations and warranties, and each of Company
and the other Credit Parties hereby reaffirms the representations and
warranties made by it, in the Credit Agreement and all of the other
Loan Documents as fully and completely as if set forth herein at
length. All of such representations and warranties are true, correct
and complete as of March 31, 2001 (except as to such representations
and warranties, which are made as of a specified date, in which case
such representations and warranties remain true as of such date). In
addition, each of Company and the other Credit Parties (including
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Procurement Co.) represents and warrants to the Bank that:
(A) Each of the Company and the other Credit Parties has the power and
authority to enter into this Sixth Amendment;
(B) The execution, delivery and performance of this Sixth Amendment
and the instruments and documents executed and delivered by the
Company and the other Credit Parties in connection herewith have been
duly authorized by all requisite corporate or other action, and this
Sixth Amendment and the instruments and documents executed and
delivered in connection herewith constitute the legal, valid, and
binding obligations of the Company and the other Credit Parties,
enforceable against each of them (to the extent each is a party
thereto), in accordance with their terms; and
(C) No Event of Default has occurred and is continuing.
(D) The execution and delivery of this Sixth Amendment and the
instruments and documents executed and delivered in connection
herewith, the consummation of the transactions contemplated hereunder
and the fulfillment of or compliance with the terms and conditions
contained herein by the Credit Parties are not prevented, or limited
by, and do not result in the breach of, any terms, conditions or
provisions of any requirements of law or any contractual obligations
of the Credit Parties in any respect which could have a Material
Adverse Effect.
Each of the Company and the Credit Parties other than Procurement Co.
represents and warrants to the Bank that there have been no amendments
to its corporate/limited liability organizational documents since
October 26, 1998 other than in connection with the merger of BBBL,
Inc. with and into the Company, and that such organization documents
remain in full force and effect as of March 31, 2001.
6. REAFFIRMATION OF COVENANTS. Procurement Co. hereby covenants and
agrees to abide by the affirmative and negative covenants, and each of
the Company and the other Credit Parties hereby reaffirms the
affirmative and negative covenants, set forth in the Credit Agreement
and the other Loan Documents fully and completely as if set forth
herein at length, and agrees that such covenants shall remain in full
force and effect until payment in full of the Obligations.
7. MISCELLANEOUS.
(A) EFFECT OF AMENDMENT. Except as amended by this Sixth Amendment,
all terms and provisions of the Credit Agreement and the other Loan
Documents, and all rights of the Bank and obligations of the Company
and the other Credit Parties thereunder, remain unchanged and in full
force and effect, and are hereby ratified, adopted and confirmed in
all respects. This Sixth Amendment is incorporated by reference in the
Credit Agreement and the other Loan Documents. This Sixth Amendment is
given as a modification of the Company's and the other Credit Parties'
obligations to the Bank under the Credit Agreement and is not give in
substitution therefor or extinguishment thereof and is not intended to
be a novation.
(B) COSTS AND EXPENSES. Each of the Company and the other Credit
Parties agrees to pay all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred
by the Bank in connection with the preparation, execution, delivery
and administration of this Sixth Amendment and the documents executed
and delivered in connection herewith.
(C) COUNTERPARTS. This Sixth Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together
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shall constitute one and the same agreement.
(D) GOVERNING LAW. This Sixth Amendment shall be governed by and
construed in accordance with the internal laws (and not the law of
conflicts) of the State of New York.
(SIGNATURES ON THE NEXT PAGE)
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment
to be duly executed and delivered by their respective officers/members duly
authorized as of the effective date(s) set forth above.
BED BATH & BEYOND INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Co-Chief Executive Officer
BED-N-BATH STORES INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
BED BATH & BEYOND OF CALIFORNIA
LIMITED LIABILITY COMPANY
By: BED BATH & BEYOND
PROCUREMENT CO. INC.,
sole member
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
BBBY MANAGEMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
BED BATH & BEYOND PROCUREMENT
CO. INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
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REVOLVING LOAN COMMITMENT: THE CHASE MANHATTAN BANK
$25,000,000 (EFFECTIVE 3/28/01)
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
