EXHIBIT 10.22B
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
September 21, 1999 by and among BJ'S WHOLESALE CLUB, INC., BANK ONE, NA
formerly known as THE FIRST NATIONAL BANK OF CHICAGO, BANKBOSTON, N.A., FLEET
NATIONAL BANK, FIRST UNION NATIONAL BANK, PNC BANK, NATIONAL ASSOCIATION AND
GENERAL ELECTRIC CREDIT CORPORATION.
RECITALS
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WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of July 9, 1997 (as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"; capitalized terms
used but not otherwise defined herein having the definitions provided therefor
in the Credit Agreement); and
WHEREAS, the Credit Agreement has been amended by that certain First
Amendment to Credit Agreement dated as of December 19, 1997 (the "First
Amendment"); and
WHEREAS, the parties hereto desire to further amend the Credit
Agreement on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Amendment to Credit Agreement. Subject to the terms and conditions set
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forth in Section 2 of this Amendment, upon the Effective Time (as hereinafter
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defined), the Credit Agreement is hereby amended as follows:
(i) Article I of the Credit Agreement is hereby amended by adding the
definition "Business Trust" subsequent to the definition of "Business Day" in
such Article, which new definition shall read as follows:
"Business Trust" means a to be formed business investment
trust organized under the laws of one of the states of the United
States of America with constitutive documents containing terms
and conditions reasonably acceptable to the Agent and which is a
Wholly Owned Subsidiary of the Borrower.
(ii) Article I of the Credit Agreement is hereby amended by deleting the
definition of "Loan Documents" in such Article and inserting the following in
its stead:
"Loan Documents" means this Agreement, the Notes, the
Facility Letters of Credit and any guarantees executed by
any Subsidiaries
of the Borrower in favor of the Agent for the benefit of the
Lenders.
(iii) Article I of the Credit Agreement is hereby amended by amending the
definition of "Permitted Investments" in such Article by deleting the number
"$25,000,000" in clauses (vii), (viiii), (ix) and (x) thereof and inserting the
number "$50,000,000" in its stead.
(iv) Article I of the Credit Agreement is hereby amended by amending the
definition of "Permitted Investments" in such Article by deleting the word "and"
at the end of clause (ix) thereof, deleting the period (".") at the end of
clause (x) thereof and inserting a semi-colon (";") therein and by inserting a
new clause (xi) at the end of such definition which shall read as follows:
and (xi) money market mutual funds with an average
maturity of not more than 270 days which invest primarily in
corporate or governmental debt securities and which debt
securities have a rating equal to or better than the
applicable rating for such securities set forth in clauses
(ii), (vi), (ix) or (x) above.
(v) Article I of the Credit Agreement is hereby amended by amending the
definition of "Real Estate Subsidiary" in such Article by adding the words "or
any Wholly Owned Subsidiary" after the word "Borrower" in clauses (A) and (C)
thereof.
(vi) Article I of the Credit Agreement is hereby amended by adding the
definition "Trademark Subsidiary Promissory Note" subsequent to the definition
of "Trademark Subsidiaries" in such Article which new definition shall read as
follows:
"Trademark Subsidiary Promissory Note" means that certain
subordinated Promissory Note in the form of Attachment A
hereto issued by the Borrower in favor of the Business Trust
(as assignee of BJ's Northeast Operating Company) in the
aggregate principal amount not to exceed $650,000,000 and
dated not later than September 30, 1999.
(vii) Section 6.10 of the Credit Agreement is hereby amended by deleting
such Section in its entirety and inserting the following in its stead:
6.10 Dividends. The Borrower will not, nor will it
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permit any Subsidiary to, declare or pay any dividends
on its capital stock (other than dividends payable in
its own capital stock) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at
any time outstanding, except that (i) any Subsidiary
may declare and pay dividends to the Borrower or to a
Wholly-Owned Subsidiary and (ii) the Borrower may (a)
repurchase for cash shares of common stock issued under
the Borrower's 1997 Replacement Stock Incentive Plan,
1997 Stock Incentive Plan or the 1997 Director Stock
Option Plan, as from time to time in
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effect, provided that the aggregate amount of repurchases
permitted by this clause (a) shall not exceed $2,000,000 in
the aggregate during the term of this Agreement and (b) so
long as prior to and after giving effect thereto no Default
or Unmatured Default shall exist, repurchase shares of its
common stock in a so-called open market purchase program or
similar transaction; provided that the aggregate amount of
repurchases permitted by this clause (b) shall not exceed
(A) Fifty Million Dollars ($50,000,000) in the aggregate
during the term of this Agreement, plus (B) an amount equal
to fifty percent (50%) of Net Income, on an aggregate basis,
for the period commencing January 30, 1998 and ending on the
last day of the fiscal quarter immediately prior to the
proposed repurchase less (C) an amount equal to the
aggregate amount of money previously expended by Borrower or
any of its Affiliates to repurchase, acquire or redeem
shares of its capital stock pursuant to clause (a) of this
Section 6.10.
(viii) Section 6.11 of the Credit Agreement is hereby amended by deleting
the reference to "$75,000,000" in the third sentence of clause (vii) thereof and
inserting "$50,000,000" in its stead.
(ix) Section 6.11 of the Credit Agreement is hereby amended by deleting
clause (x) thereof and insert the following in its stead:
(x) Indebtedness owed by the Borrower to any Wholly
Owned Subsidiary (i) existing on July 31, 1999 in an
aggregate amount not greater than $200,000,000 or (ii)
incurred subsequent to July 31, 1999 and subordinated to the
Obligations upon terms and conditions reasonably
satisfactory to Agent in its reasonable discretion.
(x) Section 6.11 of the Credit Agreement is hereby amended by renumbering
the current clause (xii) as clause (xiv) thereof and inserting a new clause
(xii) and a new clause (xiii) which shall read as follows:
(xii) Indebtedness, at any time outstanding, of the
Borrower or any Real Estate Subsidiary owed to any Real
Estate Subsidiary which indebtedness was incurred in
connection with the financing of real property of the
Borrower or such Real Estate Subsidiary in an amount not to
exceed $75,000,000 in the aggregate and which, if incurred
after July 31, 1999, is subordinated to the Obligations upon
terms and conditions satisfactory to the Agent in its
reasonable discretion.
(xiii) Indebtedness owed by any Wholly Owned
Subsidiary(s) to the Borrower or any other Wholly Owned
Subsidiary(s) in an aggregate amount not in excess of
$50,000,000.
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(xi) Section 6.15(a)(i) of the Credit Agreement is hereby amended by (A)
deleting the words "made prior to the Effective Date and" in such clause where
it appears and (B) substituting a new Schedule "2" thereto in the form attached
hereto as Attachment A hereto.
(xii) Section 6.15(a) of the Credit Agreement is hereby amended by deleting
clause (ix) thereof and inserting the following in its stead:
(ix) Investments made by the Borrower, any Real Estate
Subsidiary or any Trademark Subsidiary in any Real Estate
Subsidiary, so long as, for any such Real Estate Subsidiary
receiving Investments, the sum of such Investments plus any
other Indebtedness of such Real Estate Subsidiary does not
exceed 105% of the acquisition cost of the real estate owned
by such Real Estate Subsidiary.
(xiii) Section 6.15(a) of the Credit Agreement is hereby amended by
renumbering the current clause (xiv) as clause (xv) thereof and inserting new
clause (xiv) which shall read as follows:
(xiv) (A) Creation of the Business Trust and
Investments in the Business Trust consisting of (1) the
Trademark Subsidiary Promissory Note, (2) the assets used in
the ownership and/or operation of the Borrower's business in
Maine and New Hampshire, (3) the stock of Natick Realty,
Inc. and (4) Indebtedness of the Borrower or its
Subsidiaries owed to the Borrower or its Subsidiaries in an
aggregate amount not greater than that permitted pursuant to
Section 6.11(a)(xiii) hereof and (B) Investments in one
Wholly Owned Subsidiary of the Borrower consisting solely of
(1) intellectual property with an aggregate book value of
not greater than $650,000,000, (2) cash in an amount not
greater than $10,000,000 and (3) Indebtedness of the
Borrower or its Subsidiaries owed to the Borrower or its
Subsidiaries in an aggregate amount not greater than that
permitted pursuant to Section 6.11(a)(xiii) hereof.
(xiv) Section 6.18 of the Credit Agreement is hereby amended by inserting
the following words after the word "Documents" at the end of such Section:
or make any amendment, waiver, cancellation, termination or
modification to the Trademark Subsidiary Promissory Note
except with the consent of the Agent which consent shall not
be unreasonably withheld. The parties agree that the Agent
shall consent to amendments to the Trademark Subsidiary
Promissory Note, on one or more occasions, to provide for
inclusion in the
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definition of "Senior Debt" in the Trademark Subsidiary
Promissory Note other indebtedness which the Borrower is
allowed to incur under Section 6.11 hereof and which the
Borrower elects to designate as "Senior Debt" solely for
purposes of the Trademark Subsidiary Promissory Note and to
make conforming changes in the Trademark Subsidiary
Promissory Note as is reasonably necessary to implement the
inclusion of other obligations of the Borrower in the
definition of "Senior Debt". The form of any such amendment
shall be reasonably satisfactory to the Agent.
(xv) Section 6.21 of the Credit Agreement is hereby amended by deleting
such Section in its entirety and inserting the following in its stead:
6.21. Subsidiary Guaranties. (a) If the Subsidiaries
(other than the Real Estate Subsidiaries, Trademark
Subsidiary and the Business Trust) have assets which in the
aggregate have a book value equal to or greater than twenty-
five percent (25%) of an amount equal to (i) the book value
of the Borrower's total consolidated assets and less (ii)
the book value of real estate owned by the Real Estate
Subsidiaries, each determined on a consolidated basis as at
the end of any fiscal quarter, the Borrower shall cause all
Subsidiaries other than the Real Estate Subsidiaries to
deliver to the Agent, on behalf of the Lenders, within 30
days after the end of any such fiscal quarter (i) an
executed guaranty in substantially the form attached hereto
as Exhibit "I" or a joinder agreement in substantially the
form attached to such guaranty and (ii) an opinion of
counsel to such Subsidiaries that such guaranty has been
duly executed and delivered and is a legal, valid and
binding obligation of such Subsidiaries enforceable in
accordance with its terms (subject to customary exceptions).
If any Subsidiary (other than a Real Estate Subsidiary,
Trademark Subsidiary or the Business Trust) has assets which
in the aggregate have a book value equal to or greater than
fifteen percent (15%) of an amount equal to (i) the book
value of the Borrower's total consolidated assets and less
(ii) the book value of real estate owned by the Real Estate
Subsidiaries, each determined on a consolidated basis as at
the end of any fiscal quarter, the Borrower shall cause such
Subsidiary to deliver to the Agent, on behalf of the
Lenders, within 30 days after the end of any such fiscal
quarter (i) an executed guaranty substantially in the form
attached hereto as Exhibit I or a joinder agreement
substantially in the form attached to such guaranty and (ii)
an opinion of counsel to such Subsidiary that such guaranty
has been duly executed and delivered and is a legal, valid
and binding
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obligation of such Subsidiary enforceable in accordance with
its terms (subject to customary exceptions).
(b) The Business Trust shall, within thirty (30) days
of its formation (i) execute and deliver to the Agent, for
the benefit of the Lenders, a guarantee in the form of
Exhibit I hereto and such guarantee shall be valid and
binding upon the Business Trust and shall be in full force
and effect and (ii) deliver to the Agent for the benefit of
the Lenders an opinion of counsel to the Business Trust that
the guaranty has been duly executed and delivered and is the
legal, valid and binding obligation of the Business Trust
enforceable in accordance with its terms (subject to
customary exceptions).
2. Conditions. The effectiveness of the amendments stated in this Amendment
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is subject to on or prior to the Effective Time, that the following conditions
shall have been satisfied in a manner, and in form and substance, as the case
may be, reasonably acceptable to Required Lenders:
(i) Amendment. This Amendment shall have been duly executed by the
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Required Lenders and the Borrower and delivered to Agent.
(ii) No Default. No Default or Event of Default under the Credit
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Agreement, as amended hereby, shall have occurred and be continuing.
(iii) Warranties and Representations. The warranties and
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representations of the Borrower contained in this Amendment, the Credit
Agreement, as amended hereby, and the other Loan Documents shall be true
and correct as of the date hereof, with the same effect as though made on
such date, except to the extent that such warranties and representations
expressly relate to an earlier date, in which case such warranties and
representations shall have been true and correct as of such earlier date.
(iv) Guaranty. Each Trademark Subsidiary and the Subsidiary (known as
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BJ's PA Distribution Center, Inc.) holding the equity interest in the
Business Trust shall have executed and delivered to the Agent for the
benefit of the Lenders a guaranty in the form of Exhibit I to the Credit
Agreement and such guaranty shall be valid and binding upon each such
Subsidiary and be in full force and effect.
(v) Opinion. The Borrower shall have delivered to the Agent for the
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benefit of the Lenders an opinion of counsel to the Trademark Subsidiaries
that the guaranties executed pursuant to clause (iv) of this section have
been duly executed and delivered and are the legal, valid and binding
obligation of each such Subsidiary enforceable in accordance with its terms
(subject to customary exceptions).
The date on which all of the above events have occurred is the "Effective Time".
If the Effective Time has not occurred by September 30, 1999, this Amendment
shall be of no force and effect.
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3. Continuing Credits. Notwithstanding this Amendment, the Loans owing to
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Lenders by Borrower under the Credit Agreement that remain outstanding as of the
date hereof shall constitute continuing Obligations of the Borrower under the
Credit Agreement and this Amendment shall not be deemed to evidence or result in
a novation, or repayment and reborrowing, of such Loans.
4. Waivers.
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The Requisite Lenders hereby waive compliance by the Borrower of the
restrictions set forth in (i) Sections 6.13, 6.15 and 6.17 solely to the extent
that each of the following shall have occurred no more frequently than once and
prior to April 30, 2000: (A) contribution of cash and intellectual property and
having a book value not in excess of $10,000,000 into a new Wholly Owned
Subsidiary known as Strathmore Partners LP, (B) issuance by Borrower of the
Trademark Subsidiary Promissory Note to BJ's Northeast Operating Company in
exchange for all of the equity interests owned by BJ's Northeast Operating
Company in such new Wholly Owned Subsidiary, (C) revaluation of the intellectual
property owned by such new Wholly Owned Subsidiary to an amount not in excess of
$650,000,000, (D) transfer of the equity interests of the Business Trust by BJ's
Northeast Operating Company to BJ's PA Distribution Center, Inc., (E) transfer
of the Trademark Subsidiary Promissory Note from BJ's Northeast Operating
Company to the Business Trust, (F) the merger of BJ's Northeast Operating
Company into BJ's PA Distribution Center, Inc., (G) the contribution by Borrower
of Natick Realty, Inc. and its Subsidiaries to BJ's PA Distribution Center, Inc.
and (H) the contribution by BJ's PA Distribution Center, Inc. of Natick Realty,
Inc. and its Subsidiaries to the Business Trust and (ii) Section 6.4 solely to
the extent of the contribution by BJ's Northeast Operating Company to the
capital of the Business Trust of the operations of its stores in Maine and New
Hampshire.
The waiver by the Requisite Lenders under the Credit Agreement as described
in the immediately preceding paragraph shall not operate as a waiver of (i) any
other right, power or remedy of the Lenders under the Credit Agreement, or (ii)
any other Event of Default under the Credit Agreement. This waiver is only
applicable and shall be only effective in this specific instance for the above
transactions which shall occur on the Effective Date and for the specific
purpose for which made or given.
5. Miscellaneous.
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(a) Captions. Section captions used in this Amendment are for convenience
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only, and shall not affect the construction of this Amendment.
(b) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. Whenever possible each provision of
this Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Amendment shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
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(c) Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
(d) Successors and Assigns. This Amendment shall be binding upon, and
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shall inure to the sole benefit of the Borrower, Agent and Lenders, and their
respective successors and assigns.
(e) References. Any reference to the Credit Agreement contained in any
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notice, request, certificate, or other document executed concurrently with or
after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained herein,
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the terms of this Amendment are not intended to and do not serve to effect a
novation as to the Credit Agreement; instead, it is the express intention of the
parties hereto to reaffirm the Obligations created under the Credit Agreement
which is evidenced by the Notes. The Credit Agreement, as amended hereby, and
each of the other Loan Documents remain in full force and effect.
(g) Costs and Expenses. Borrower affirms and acknowledges that Section 9.7
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of the Credit Agreement applies to this Amendment and the transactions and
agreements and documents contemplated hereunder.
6. Representations and Warranties. The Borrower represents and warrants to
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Agent and Lenders that the execution, delivery and performance by the Borrower
of this Amendment are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action (including, without limitation, all
necessary shareholder approval) of the Borrower, do not require any governmental
approvals, consents or filings and do not and will not contravene or conflict
with any provision of law applicable to the Borrower, the certificate of
incorporation or bylaws of the Borrower or any order, judgment or decree of any
court or other agency of government or any contractual obligation binding upon
the Borrower, and this Amendment, the Credit Agreement, as amended hereby, and
each Loan Document is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms and that the
conditions set forth in Sections 2(ii) and (iii) hereof are true, correct and
complete as of the Effective Time. The Borrower represents and warrants to
Agent and Lenders that, except as contemplated hereby, no Subsidiaries of the
Borrower are required to execute Subsidiary Guaranties pursuant to Section 6.21
of the Credit Agreement, as amended hereby.
[signature pages follow]
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IN WITNESS WHEREOF, this Second Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By: /s/ Xxxxxx X. Silk, Jr.
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Print Name: Xxxxxx X. Silk, Jr.
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Title: Vice President and Treasurer
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BANK ONE, NA formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:_______________________________________
Print Name: Xxxx X. Xxxxxx
Title: Managing Director
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: ______________________________________
Print Name: ______________________________
Title: ___________________________________
FLEET NATIONAL BANK
Individually and as Documentation Agent
By:_______________________________________
Print Name: ______________________________
Title: ___________________________________
FIRST UNION NATIONAL BANK
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
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IN WITNESS WHEREOF, this Second Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
BANK ONE, NA formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Print Name: XXXXXXX X. XXXXXXX
-------------------------------
Title: VICE PRESIDENT
------------------------------------
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: ______________________________________
Print Name: ______________________________
Title: ___________________________________
FLEET NATIONAL BANK
Individually and as Documentation Agent
By:_______________________________________
Print Name: ______________________________
Title: ___________________________________
FIRST UNION NATIONAL BANK
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
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IN WITNESS WHEREOF, this Second Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
BANK ONE, NA formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:
--------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Managing Director
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: /s/ Xxxxx X. Xxxxxx-Xxxxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxxx-Xxxxxxx
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Title: Vice President
-----------------------------------
FLEET NATIONAL BANK
Individually and as Documentation Agent
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
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IN WITNESS WHEREOF, this Second Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
BANK ONE, NA formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: ______________________________________
Print Name: ______________________________
Title: ___________________________________
FLEET NATIONAL BANK
Individually and as Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: XXXXXX X. XXXXXXX
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Title: VICE PRESIDENT
------------------------------------
FIRST UNION NATIONAL BANK
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
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IN WITNESS WHEREOF, this Second Amendment to Credit Agreement has been duly
executed and delivered as of the day and year first above written.
BJ'S WHOLESALE CLUB, INC.
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
BANK ONE, NA formerly known as THE
FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:_______________________________________
Print Name: Xxxx X. Xxxxxx
Title: Managing Director
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: ______________________________________
Print Name: ______________________________
Title: ___________________________________
FLEET NATIONAL BANK
Individually and as Documentation Agent
By:_______________________________________
Print Name: ______________________________
Title: ___________________________________
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: XXXXXX X. XXXXXXX
-------------------------------
Title: AVP
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Vice President
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GENERAL ELECTRIC CREDIT
CORPORATION
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
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PNC BANK, NATIONAL ASSOCIATION
By:_______________________________________
Print Name:_______________________________
Title:____________________________________
GENERAL ELECTRIC CREDIT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Print Name: XXXXXX X. XXXXXXX
-------------------------------
Title: DULY AUTHORIZED SIGNATORY
------------------------------------
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