EXHIBIT 10.40.1
AMENDMENT AGREEMENT XX. 0
XXXXXXXXX XXXXXXXXX XX. 0 dated as of September 14, 1998
(this "Amendment") by and among (a) Filene's Basement, Inc., a
Massachusetts corporation (the "Borrower"), (b) Filene's Basement
Corp., a Massachusetts corporation (the "Guarantor"), (c)
BankBoston, N.A. (f/k/a The First National Bank of Boston) and
the other lending institutions listed on Schedule 1 to the Credit
Agreement (as hereinafter defined) (collectively, the "Banks"),
(d) BankBoston, N.A. (f/k/a The First National Bank of Boston),
as agent for itself and the Banks (the "Agent"), amending the
Amended and Restated Revolving Credit and Term Loan Agreement
dated as of January 30, 1998 (as amended and in effect from time
to time, the "Credit Agreement") among the Borrower, the
Guarantor, the Banks and the Agent. Capitalized terms used
herein without other definition shall have the meanings assigned
to them in the Credit Agreement.
WHEREAS, upon the terms and subject to the conditions
contained herein, the Borrower, the Guarantor, the Agent and the
Majority Banks wish to amend certain provisions of the Credit
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
contained in the Credit Agreement and herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged the parties hereto hereby agree as
follows:
1. Amendment of Section 1.1 of the Credit Agreement.
Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Consolidated Operating Cash
Flow" set forth in such section is amended and restated in
its entirety to read as follows:
Consolidated Operating Cash Flow. For any period
an amount equal to EBITDA for such period, less,
Capital Expenditures made during such period, excluding
Capital Expenditures made during the fiscal year ending
January 30, 1999 up to an aggregate amount not to
exceed $12,500,000, less, cash payments for all current
income taxes made by the Guarantor, the Borrower and
their Subsidiaries during such period. Notwithstanding
the foregoing and subject to the other requirements of
the Credit Agreement, Capital Expenditures are not
limited to $12,500,000 in any fiscal year.
(b) The definition of "Permitted Inventory Locations"
set forth in such section is amended by deleting the words
"Schedule 2" and substituting in place thereof the words
"Schedule 8.22".
2. Amendment of Section 9.4(j) of the Credit Agreement.
Section 9.4(j) of the Credit Agreement is hereby amended by
deleting the words "Schedule 2" and substituting in place thereof
the words "Schedule 8.22".
3. Amendment of Section 11.2 of the Credit Agreement.
Section 11.2 of the Credit Agreement is hereby amended by
amending and restating in its entirety the table set forth at the
end of such section to read as follows:
Period Ending Ratio
January 31, 1998 1.40:1.00
May 2, 1998 1.00:1.00
August 1, 1998 0.90:1.00
October 31, 1998 1.00:1.00
January 30, 1999 and 1.50:1.00
thereafter
4. Amendment Fee. The Borrower shall pay to the Agent,
for the account of those Banks which have delivered to the Agent
on or prior to the Effective Date facsimile copies of such Bank's
executed signature page to this Amendment, on the Effective Date
an amendment fee in the amount of $30,000 (the "Amendment Fee")
5. Conditions To Effectiveness. This Amendment shall
become effective as of the date hereof (the "Effective Date")
upon satisfaction of the following conditions: (a) the Agent
receives facsimile copies of original counterparts (to be
followed promptly by original counterparts) or original
counterparts of this Amendment, duly executed by each of the
Borrower, the Guarantor, the Agent, and the Majority Banks and
(b) the Borrower shall have paid to the Agent the Amendment Fee.
6. Representation and Warranties; No Default;
Authorization. Each of the Borrower and the Guarantor hereby
represents and warrants to each of the Agent and the Banks as
follows:
(a) Each of the representations and warranties of each of
the Borrower and the Guarantor contained in the Credit Agreement,
the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement,
the other Loan Documents or this Amendment was true as of the
date as of which it was made and is true as and at the date of
this Amendment, and no Default or Event of Default has occurred
and is continuing as of the date of this Amendment; and
(b) This Amendment has been duly authorized, executed and
delivered by each of the Borrower and the Guarantor and shall be
in full force and effect upon the satisfaction of the conditions
set forth in 5 hereof, and the agreements of each of the
Borrower and the Guarantor party hereto contained herein, in the
Credit Agreement, as amended, and the other Loan Documents
respectively constitute the legal, valid and binding obligations
of each of the Borrower and the Guarantor, enforceable against
such Borrower or Guarantor in accordance with their respective
terms, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceeding therefor may be brought.
7. Entire Agreement. This Amendment, together with the
Credit Agreement as amended hereby, and the other Loan Documents,
express the entire understanding of the parties with respect to
the transactions contemplated hereby. Neither this Amendment nor
any term hereof may be changed, waived, discharged or terminated
except as provided in 27 of the Credit Agreement.
8. Ratification, etc. Except as expressly amended hereby,
the Credit Agreement, the other Loan Documents and all documents,
instruments and agreements related thereto are hereby ratified
and confirmed in all respects and shall continue in full force
and effect. All references in the Credit Agreement or the other
Loan Documents or in any related agreement or instrument to the
Credit Agreement or the other Loan Documents shall hereafter
refer to the Credit Agreement as amended hereby, pursuant to the
provisions of the Credit Agreement.
9. Implied Waiver. Except as expressly provided herein,
nothing contained herein shall constitute a waiver of, impair or
otherwise affect any Obligations, any other obligations of the
Borrower or the Guarantor or any right of the Agent or the Banks
consequent thereon.
10. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but
which together shall constitute one and the same instrument.
11. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF
LAW).
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as a document under seal as of the date first above
written.
FILENE'S BASEMENT, INC.
By: /s/ XXXXXX XXXXXX
Title: Exec. Vice-President & Chief
Financial Officer
FILENE'S BASEMENT CORP.
By: /s/ XXXXXX XXXXXX
Title: Exec. Vice-President & Chief
Financial Officer
BANKBOSTON, N.A. (f/k/a The First
National Bank of Boston),
Individually and as Agent
By: /s/ XXXX X. XXXXXXX
_________________________________
Xxxx X. Xxxxxxx, Director
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/ XXX X. XXXXXXXXXXX
_________________________________
Name: Xxx X. Xxxxxxxxxxx
Title: Vice-President
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX XXXXXXXX
_________________________________
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice-President
RATIFICATION OF GUARANTY
The undersigned guarantor hereby acknowledges and consents
to the foregoing Amendment as of September __, 1998 and agrees
that the Guaranty dated as of May 23, 1996 and amended and
ratified as of January 30, 1998, in favor of the Agent for the
benefit of the Agent and the Banks, and all other Loan Documents
to which the Guarantor is a party remain in full force and
effect, and the Guarantor confirms and ratifies all of its
obligations thereunder.
FILENE'S BASEMENT CORP.
By:_/s/ XXXXXX SIEGEL_
Title: Exec. Vice-President & Chief
Financial Officer
