FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
FIRST
AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement is dated this 25th day of October, 2005,
by and among Big Lots Stores, Inc., an Ohio corporation (the “Borrower”), each of the Guarantors
(as defined in the Credit Agreement (as hereinafter defined)), the Banks (as defined in the Credit
Agreement), PNC Bank, National Association, in its capacity as syndication agent for the Banks (the
“Syndication Agent”), National City Bank, in its capacity as administrative agent for the Banks
(the “Agent”), and Wachovia Bank, N.A., in its capacity as documentation agent for the Banks (the
“Documentation Agent”) (“First Amendment”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks, the Syndication Agent, the Agent and the
Documentation Agent entered into that certain Credit Agreement, dated October 29, 2004 (as amended,
the “Credit Agreement”); and
WHEREAS, the Borrower and the Guarantors desire to amend certain provisions of the Credit
Agreement and the Banks, the Syndication Agent, the Agent and the Documentation Agent shall permit
such amendments pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. All capitalized terms used herein which are defined in the Credit Agreement shall have the
same meaning herein as in the Credit Agreement unless the context clearly indicates otherwise.
2. Section 1.1 of the Credit Agreement is hereby amended by deleting the following definition
in its entirety and replacing it with the following:
Consolidated EBITDAR shall mean, for any period of
determination, without duplication (i) the sum of consolidated net
income, depreciation, amortization, other non-cash charges to net
income, interest expense, income tax expense, Consolidated Rental
Expense, up to Sixty Million and 00/100 Dollars ($60,000,000.00) for
net charges related to KB Toys (incurred after the Closing Date) and
Sixty Million and 00/100 Dollars ($60,000,000.00) for retail store
closing related net charges for such period, minus (ii) non-cash
credit to net income, in each case determined and consolidated for
the Parent and its Subsidiaries in accordance with GAAP; provided,
however, the exclusion of net charges to operations related to KB
Toys shall not exceed Sixty Million and 00/100 Dollars
($60,000,000.00) in the aggregate between the Closing Date and the
Expiration Date.
3. Exhibit 7.2.5 to the Credit Agreement is hereby deleted in its entirety and in its
stead is inserted Exhibit 7.2.5 attached hereto.
4. Exhibit 7.3.3 to the Credit Agreement is hereby deleted in its entirety and in its
stead is inserted Exhibit 7.3.3 attached hereto.
5. The provisions of Section 2 through 4 of this First Amendment shall not become effective
until the Syndication Agent has received the following items, each in form and substance
acceptable to the Syndication Agent and its counsel:
(a) this First Amendment, duly executed by each of the Loan Parties and the Required Banks;
(b) the documents listed in the Closing Agenda set forth on Exhibit A attached hereto
and made a part hereof; and
(c) the fees payable by the Borrower to the Syndication Agent and the Banks as more fully set
forth in that certain fee letter, dated October 11, 2005, by and among the Syndication Agent, PNC
Capital Markets, Inc. and the Borrower.
6. Each Loan Party hereby reconfirms and reaffirms all representations and warranties,
agreements and covenants made by it pursuant to the terms and conditions of the Credit Agreement,
except as such representations and warranties, agreements and covenants may have heretofore been
amended, modified or waived in writing in accordance with the Credit Agreement, and except any
such representations or warranties made as of a specific date or time, which shall have been true
and correct in all material respects as of such date or time.
7. Each Loan Party acknowledges and agrees that each and every document, instrument or
agreement, which at any time has secured the Obligations including, without limitation, the
Guaranty Agreements, hereby continues to secure the Obligations.
8. Each Loan Party hereby represents and warrants to the Banks and the Agent that (i) such
Loan Party has the legal power and authority to execute and deliver this First Amendment, (ii) the
officers of such Loan Party executing this First Amendment have been duly authorized to execute
and deliver the same and bind such Loan Party with respect to the provisions hereof, (iii) the
execution and delivery hereof by such Loan Party and the performance and observance by such Loan
Party of the provisions hereof and all documents executed or to be executed herewith, do not
violate or conflict with the organizational agreements of such Loan Party or any material Law
applicable to such Loan Party or result in a breach of any provision of or constitute a default
under any other material agreement, instrument or document binding upon or enforceable against
such Loan Party, and (iv) this First Amendment and the documents executed or to be executed by
such Loan Party in connection herewith constitute valid and binding obligations of such Loan Party
in every respect, enforceable in accordance with their respective terms.
9. Each Loan Party represents and warrants that (i) no Event of Default exists under the
Credit Agreement, nor will any occur as a result of the execution and delivery of this First
Amendment or the performance or observance of any provision hereof, (ii) the schedules attached to
and made a part of the Credit Agreement, are true and correct in all material respects as of the
date hereof, except as such schedules may have heretofore been amended or modified in writing in
accordance with the Credit Agreement and (iii) it presently has no known claims or
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actions of any kind at Law or in equity against the Banks or the Agent arising out of or in
any way relating to the Loan Documents.
10. The Borrower represents and warrants that its Debt Rating from Standard & Poor’s has not
been withdrawn at any time from the Closing Date through and including the date of this First
Amendment.
11. Each reference to the Credit Agreement that is made in the Credit Agreement or any other
document executed or to be executed in connection therewith shall hereafter be construed as a
reference to the Credit Agreement as amended hereby.
12. The agreements contained in this First Amendment are limited to the specific agreements
made herein. Except as amended hereby, all of the terms and conditions of the Credit Agreement
and the Loan Documents shall remain in full force and effect. This First Amendment amends the
Credit Agreement and is not a novation thereof.
13. This First Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall constitute but one and the same instrument.
14. This First Amendment shall be governed by, and shall be construed and enforced in
accordance with, the Laws of the State of Ohio without regard to the principles of the conflicts
of law thereof. Each Loan Party hereby consents to the jurisdiction and venue of the Court of
Common Pleas of Franklin County, Ohio and the United States District Court for the Southern
District of Ohio with respect to any suit arising out of or mentioning this First Amendment.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this
First Amendment to be duly executed by their duly authorized officers on the day and year first
above written.
| BORROWER: WITNESS: |
BIG LOTS STORES, INC. |
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/s/ Xxxxxxx X. Xxxxxxx XX
|
By: | /s/ Xxx X. Xxxxxx | ||||||
| Name: | ||||||||
| Title: | Senior Vice President and Chief |
|||||||
| Financial Officer | ||||||||
GUARANTORS:
|
BIG LOTS, INC. | |
| CAPITAL RETAIL SYSTEMS, INC. | ||
| X.X. XXXX COMPANY | ||
| CSC DISTRIBUTION, INC. | ||
| MAC FRUGAL’S BARGAINS·CLOSE-OUTS, INC. | ||
| PNS STORES, INC. | ||
| WEST COAST LIQUIDATORS, INC. | ||
| CLOSEOUT DISTRIBUTION, INC. | ||
| MIDWESTERN HOME PRODUCTS, INC. | ||
| INDUSTRIAL PRODUCTS OF NEW ENGLAND, INC. | ||
| TOOL AND SUPPLY COMPANY OF NEW ENGLAND, INC. | ||
| XXXXXX XX, LLC | ||
| SONORAN LLC | ||
| SAHARA LLC | ||
| BLSI PROPERTY, LLC | ||
| GREAT BASIN LLC |
WITNESS: |
||||||||
/s/ Xxxxxxx X. Xxxxxxx XX
|
By: | /s/ Xxx X. Xxxxxx | ||||||
| Name: | ||||||||
| Title: | Senior Vice President and Chief | |||||||
| Financial Officer | ||||||||
| WITNESS: | CONSOLIDATED PROPERTY HOLDINGS, INC. | |||||||
/s/ Xxxxxxx X. Xxxxxxx XX
|
By: | /s/ Xxx X. Xxxxxx | ||||||
| Name: | Xxx X. Xxxxxx | |||||||
| Title: | Senior Vice President and Chief | |||||||
| Financial Officer | ||||||||
| PNC BANK, NATIONAL ASSOCIATION, |
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| as a Bank and as Syndication Agent | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx
|
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| Name: Xxxxxxx X. Xxxxxxx |
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| Title: Senior Vice President | ||||||
| NATIONAL CITY BANK, as a Bank and as Administrative Agent |
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| By: | /s/ Xxxxx X. Xxxxxxx
|
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| Name: Xxxxx X. Xxxxxxx | ||||||
| Title: Senior Vice President | ||||||
| WACHOVIA BANK, N.A., as a Bank and as Documentation Agent |
||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
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| Name: Xxxxxx X. Xxxxxx | ||||||
| Title: Senior Vice President | ||||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | /s/ Xxxxxx Xxxxxxx
|
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| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Vice President | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx
|
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| Name: Xxxxx Xxxxxxxxx | ||||||
| Title: Vice President | ||||||
| BANK OF AMERICA, N.A. | ||||||
| By: | /s/ Xxxxx X. Xxxxx
|
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| Name: Xxxxx X. Xxxxx | ||||||
| Title: Vice President | ||||||
| U.S. BANK, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx
|
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| Name: Xxxxxxxx X. Xxxxxxxx | ||||||
| Title: AVP | ||||||
| FIFTH THIRD BANK (CENTRAL OHIO) | ||||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxx
|
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| Name: Xxxxxxxxxxx X. Xxxxx | ||||||
| Title: Vice President | ||||||
| SUNTRUST BANK | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
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| Name: Xxxxx X. Xxxxxxx | ||||||
| Title: Director | ||||||
| HSBC BANK USA, National Association | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx
|
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| Name: Xxxxxxx X. Xxxxx |
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| Title: Vice President | ||||||
| THE BANK OF NEW YORK | ||||||
| By: | /s/ Xxxxxxxx X.X. Xxxxxxx
|
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| Name: Xxxxxxxx X.X. Xxxxxxx |
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| Title: Vice President | ||||||
| LASALLE BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxx Xxxxx
|
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| Name: Xxxxx Xxxxx | ||||||
| Title: VP |
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| BANK OF TOKYO-MITSUBISHI, LTD. | ||||||
| By: | /s/ Tsuguyuki Umene
|
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| Name: Tsuguyuki Umene | ||||||
| Title: Deputy General Manager | ||||||
| THE HUNTINGTON NATIONAL BANK | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx
|
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| Name: Xxxx X. Xxxxxxxx |
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| Title: Vice President | ||||||
| GUARANTY BANK | ||||||
| By: | /s/ Xxxxxx X. Xxxx
|
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| Name: Xxxxxx X. Xxxx |
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| Title: Senior Vice President | ||||||
| HIBERNIA BANK | ||||||
| By: | /s/ Xxxxx Xxxxxx
|
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| Name: Xxxxx Xxxxxx |
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| Title: Assistant Vice President | ||||||
