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EXHIBIT 10.14
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XX-XXX STORES, INC.
AS THE BORROWER
THE LENDERS NAMED HEREIN
AS LENDERS
BANK ONE, NA
AS DOCUMENTATION AGENT
COMERICA BANK
NATIONAL CITY BANK
AS CO-AGENTS
[KEYBANK LOGO]
KEYBANK NATIONAL ASSOCIATION,
AS A LENDER, THE SWING LINE LENDER, THE ISSUING BANK AND
AS ADMINISTRATIVE AGENT
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AMENDMENT NO. 2
DATED AS OF
MARCH 7, 2000
TO
CREDIT AGREEMENT
DATED AS OF
MAY 5, 1999
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AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of March 7, 2000 ("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");
(iii) BANK ONE, NA, as Documentation Agent; and COMERICA BANK and
NATIONAL CITY BANK, as Co-Agents; and
(iv) 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, as amended by
Amendment No. 1 thereto, dated as of December 14, 1999 (as so amended, 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:
SECTION 1. AMENDMENTS, ETC.
1.1. TOTAL LEVERAGE RATIO. Effective on the Effective Date of this
Amendment provided for in section 4 hereof, section 9.8 of the Credit Agreement
is amended to add the following at the end thereof:
Notwithstanding the foregoing, but only as of and for the fiscal quarter
ended on or nearest to January 31, 2000, the maximum ratio referred to in
the above table shall be increased from .45 to 1.00 to .485 to 1.00.
1.2. ANNUAL CLEAN DOWN. Effective on the Effective Date of this Amendment
provided for in section 4 hereof, section 9.11 of the Credit Agreement is
amended to add the following at the end thereof:
Notwithstanding the foregoing, but only as of and for the fiscal year ended
on or nearest to January 31, 2000, the maximum amount referred to above
shall be increased from $85,000,000 to $101,000,000.
1.3. PRICING CHANGES. Effective on the Effective Date of this Amendment
provided for in section 4 hereof, the Pricing Grid Table which appears in
section 2.6(h) of the Credit Agreement is amended to read in its entirety as
follows:
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PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
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FIXED CHARGE COVERAGE RATIO APPLICABLE EURODOLLAR APPLICABLE FACILITY FEE
MARGIN RATE
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Greater than 2.00 to 1.00 120.00 30.00
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Equal to or greater than 1.85 to 1.00 140.00 35.00
and equal to or less than 2.00 to 1.00
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Equal to or greater than 1.75 to 1.00 150.00 37.50
and less than 1.85 to 1.00
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Equal to or greater than 1.625 to 1.00 170.00 42.50
and less than 1.75 to 1.00
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Less than 1.625 to 1.00 175.00 50.00
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1.4. EFFECTIVENESS OF PRICING CHANGES. (A) FOR GENERAL REVOLVING LOANS.
Effective on and as of the Effective Date of this Amendment provided for in
section 4 hereof, for all General Revolving Loans then or thereafter outstanding
(including any portions of any Interest Periods), and until changed in
accordance with the applicable provisions of section 2.6(h) of the Credit
Agreement based on the consolidated financial statements of the Borrower for a
fiscal quarter ended on or nearest to April 30, 2000 or thereafter, the
Applicable Eurodollar Margin for General Revolving Loans will be 175 basis
points per annum.
(b) FOR FACILITY FEE. Effective on and as of the Effective Date of this
Amendment provided for in section 4 hereof, and until changed in accordance with
the applicable provisions of section 4.1(a) of the Credit Agreement based on the
consolidated financial statements of the Borrower for a fiscal quarter ended on
or nearest to April 30, 2000 or thereafter, the Applicable Facility Fee Rate
will be 50.00 basis points per annum.
(c) FOR LETTERS OF CREDIT. Effective on and as of the Effective Date of
this Amendment provided for in section 4 hereof, for all Letters of Credit then
or thereafter outstanding, and until changed in accordance with the applicable
provisions of section 2.6(h) of the Credit Agreement based on the consolidated
financial statements of the Borrower for a fiscal quarter ended on or nearest to
April 30, 2000 or thereafter, the Applicable Eurodollar Margin will be 175 basis
points per annum.
1.5. ADDITIONAL FINANCIAL INFORMATION, ETC. The Borrower will deliver to
the Lenders, not later than 5:00 P.M. (local time at the Notice Office) on March
1, 2000, its updated financial projections. If on or before April 4, 2000, an
additional amendment to the Credit Agreement, changing various provisions in
accordance with the descriptive materials distributed by the Administrative
Agent prior to the Effective Date of this Amendment, shall not have become
effective for any reason, the Borrower will immediately pay the Administrative
Agent, for immediate distribution to the Lenders pro rata based on their
respective General Revolving Commitments, a fee at the same rate as would have
been payable for such amendment as described in such materials.
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SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Administrative Agent and
the Lenders as follows:
2.1. 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.
2.2. 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.
2.3. 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.
2.4. COMPLIANCE. The Borrower is in full compliance with all covenants and
agreements contained in the Credit Agreement, as amended hereby.
SECTION 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.
SECTION 4. EFFECTIVENESS.
The amendments to the Credit Agreement provided for in this Amendment shall
become effective on March 7, 2000 (the "EFFECTIVE DATE") if on or prior to the
Effective Date 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;
(c) the Administrative Agent shall have been notified by all of the
Lenders that such Lenders have executed this Amendment (which notification
may be by facsimile or other written confirmation of such execution); and
(d) the Borrower shall have paid to the Administrative Agent, for
immediate distribution to the Lenders pro rata based on their respective
General Revolving Commitments, an amendment fee at a rate previously agreed
to by the Borrower, the Administrative Agent and such Lenders.
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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.
SECTION 5. MISCELLANEOUS.
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. 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.
5.8. 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.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
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XX-XXX STORES, INC. KEYBANK NATIONAL ASSOCIATION,
INDIVIDUALLY AS A LENDER, THE ISSUING
BANK AND THE ADMINISTRATIVE AGENT
BY: /s/ XXXXX X. XXXXXX
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EXECUTIVE VICE PRESIDENT BY: /s/ XXXXXX X. XXXXXXX
& CHIEF FINANCIAL OFFICER ---------------------
TITLE: VICE PRESIDENT
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BANK ONE, NA (FORMERLY KNOWN AS THE FIRST NATIONAL CITY BANK,
NATIONAL BANK OF CHICAGO), INDIVIDUALLY AS A LENDER AND
INDIVIDUALLY AS A LENDER AND AS A CO-AGENT
AS DOCUMENTATION AGENT
BY: /s/ XXXXXX X. XXXXX
BY: /s/ XXXXX X. XXXXXXX -------------------
-------------------- TITLE: VICE PRESIDENT AND
TITLE: VICE PRESIDENT SENIOR LENDING OFFICER
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COMERICA BANK, FIRSTAR BANK, N. A.
INDIVIDUALLY AS A LENDER AND
AS A CO-AGENT
BY: /s/ XXXXX X. XXXXXXXXXXX
BY: /s/ XXXXXXX X. JUDGE ------------------------
-------------------- TITLE: VICE PRESIDENT
TITLE: VICE PRESIDENT
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FLEET NATIONAL BANK UNION BANK OF CALIFORNIA, N. A.
BY: /s/ XXXXX XXXXXX BY: /s/ XXXXXXX X. XXXXX
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TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
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XXXXXX TRUST AND SAVINGS BANK MERCANTILE BANK NATIONAL ASSOCIATION
BY: /s/ XXXXX XXXXXXXX BY: /s/ XXXXXXX XXXXX
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TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
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MELLON BANK, N. A. THE HUNTINGTON NATIONAL BANK
BY: /s/ XXXXXXX X. XXXXXXX BY: /s/ XXXXX XXXXXX
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TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
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FIFTH THIRD BANK, NORTHEASTERN OHIO
BY: /s/ XXX X. XXXXXXX
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TITLE: VICE PRESIDENT
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