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Exhibit 10(dd)
AMENDMENT NO.2 AND CONSENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO.2 AND CONSENT, dated as of November 23, 1999 (this
"AMENDMENT AND CONSENT"), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of July 27, 1998, as heretofore amended (the "CREDIT AGREEMENT"), among THE
XXXXX-XXXXXXX STORES CORP. (the "BORROWER"), the financial institutions listed
on the signature pages thereto as lenders (the "LENDERS"), CITIBANK, N.A. as
issuing bank (the "ISSUER"), and CITICORP USA, INC., as swing bank (in that
capacity, the "SWING BANK") and as agent for the Lenders, the Issuer and the
Swing Bank (in that capacity, the "AGENT").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement and consent to a waiver of compliance with Sections 7.4 and 7.5 hereof
as provided below; and
WHEREAS, the Majority Lenders have agreed to such amendment and consent
on the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used but not otherwise
defined in this Amendment and Consent shall have the meanings assigned thereto
in the Credit Agreement.
SECTION 2. AMENDMENT TO THE CREDIT AGREEMENT. As of the Effective Date,
the Credit Agreement shall be amended as follows:
(a) By amending Section 1.1 thereof by inserting the following
definitions in the proper alphabetical order:
"BEE-GEE ASSET SALE" has the meaning specified in Section 7.4(c).
"BEE-GEE STOCK SALE" has the meaning specified in Section 7.4(c).
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(b) By amending Section 2.4(b) thereof by adding the following proviso
at the end thereof: "; PROVIDED, HOWEVER, that no such reduction in the then
current Commitment shall be required in connection with a Bee-Gee Asset Sale or
a Bee-Gee Stock Sale".
(c) By amending Section 4.1 thereof by deleting such Section 4.1 in its
entirety and replacing it with the following:
"4.1. EXISTENCE; COMPLIANCE WITH LAW. Each Loan Party and each
of its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization;
(b) is duly qualified in each foreign jurisdiction in which it
conducts business, except for failures to so qualify which in the
aggregate have no Material Adverse Effect; (c) has all requisite
corporate or limited liability company power and authority and the
legal right to own, pledge, mortgage and operate its properties, to
lease the property it operates under lease and to conduct its business
as now or currently proposed to be conducted; (d) is in compliance
with its charter and by-laws or other comparable governing documents;
(e) is in compliance with all other applicable Requirements of Law
except for such non-compliances as in the aggregate have no Material
Adverse Effect; and (f) has all necessary Licenses, permits, consents
or approvals from or by, has made all necessary filings with, and has
given all necessary notices to, each Government Authority having
jurisdiction, to the extent required for such ownership, operation and
conduct, except for Licenses, permits, consents or approvals which can
be obtained by the taking of ministerial action to secure the grant or
transfer thereof or failures which in the aggregate have no Material
Adverse Effect."
(d) By amending Section 4.2 thereof by deleting Section 4.2(a)(i) and
(ii) in its entirety and replacing it with the following:
"(i) are within such Loan Party's corporate or limited liability
company powers;
(ii) have been duly authorized by all necessary corporate or
limited liability company action, including, without limitation, the
consent of shareholders or members, as the case may be, where
required;"
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(e) By amending Section 6.5 thereof by deleting such Section 6.5 in its
entirety and replacing it with the following:
"6.5 PRESERVATION OF EXISTENCE, ETC. The Borrower shall preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate or limited liability company existence, rights
(charter and statutory) and franchises, except as permitted under
Section 7.4; PROVIDED, HOWEVER, that neither the Borrower nor any
Subsidiary shall be prohibited from withdrawing it qualification to do
business in any jurisdiction from which it no longer is conducting its
business."
(f) By amending Section 7.4 thereof by deleting the "and" at the end of
clause (v) of Section 7.4(c) and inserting a comma in lieu thereof and by
inserting the following at the end of the first sentence of Section 7.4(c): "and
(vii) the sale of all or substantially all of the assets and/or liabilities of
Bee-Gee (a "BEE-GEE ASSET SALE") or the sale of all of the stock and Stock
Equivalents of Bee-Gee (a "BEE-GEE STOCK SALE")".
SECTION 3. LENDER CONSENT.
(a) The Majority Lenders consent to the Borrower's non-compliance with
Sections 7.4 and 7.5 of the Credit Agreement to the extent necessary to enable
the Borrower (i) to form (but not transfer any significant assets to unless the
relevant conditions set forth in Section 3(b) below are satisfied) two limited
liability companies (each a "NEW SUBSIDIARY") that will be either wholly owned
by the Borrower or jointly owned by the Borrower and one of more Subsidiary
Guarantors and (ii) subject to the satisfaction of the conditions set forth in
Section 3(b) below, to transfer to one of the New Subsidiaries all of the
Borrower's operations located in Indiana, including all operational items
relative to the Borrower's stores located in Indiana (such as assets, employees
and leases and other contractual agreements) and to the other New Subsidiary all
of the Borrower's employees other than those employed in the Borrower's Michigan
or Indiana locations.
(b) The consent in Section 3(a)(ii) above shall be effective as to each
New Subsidiary only upon the execution and delivery to the Agent of each of the
instruments and other documents set forth below in form and substance
satisfactory to the Agent:
(i) an amendment to the Amended and Restated Security Agreement,
duly executed by such New Subsidiary substantially in the form of the
Amendment Agreement attached hereto as Exhibit A, whereby INTER ALIA
such New Subsidiary agrees to be a party to, become bound by the
provisions of and grant Liens in favor of the Agent for the benefit of
the Secured Parties pursuant to the Amended and Restated Security
Agreement;
(ii) a guaranty substantially in the form of the Subsidiary
Guaranty, duly executed by such New Subsidiary;
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(iii) all UCC-l financing statements necessary to perfect the
Liens granted by such New Subsidiarv in favor of the Agent for the
benefit of the Secured Parties, each duly executed by such New
Subsidiary and duly recorded in all the recording offices that the
Agent deems necessary to perfect such Liens;
(iv) a certificate of such New Subsidiary dated the date such New
Subsidiary is organized and signed by a duly authorized Responsible
Officer of such New Subsidiary, certifying as to (x) true copies of
governing documents of such New Subsidiary in effect as of such date,
(y) true copies of all limited liability company action taken by such
New Subsidiary authorizing the instruments and other documents that it
is required to execute pursuant to this Section 3(b), authorizing the
incurrence of the obligations and the granting of the Liens in the
Collateral owned by it securing payment and performance of the
Obligations and stating that the same have been properly adopted and
have not been modified or amended and (z) the names, true signatures
and incumbency of the Responsible Officers of such New Subsidiary
authorized to execute the other instruments and other documents
required to be executed by such New Subsidiary pursuant to this
Section 3(b);
(v) a Certificate of Good standing for such New Subsidiary duly
issued by the Secretary of State of each state in which such New
Subsidiary does business; and
(vi) written opinions of counsel to such New Subsidiary to the
same effect as those delivered pursuant to 3.1 of the Credit
Agreement.
(c) The Majority Lenders hereby consent to the amendment to the Amended
and Restated Security Agreement substantially in the form of the Amendment
Agreement attached hereto as EXHIBIT A.
SECTION 4. GUARANTOR CONSENT. Each Guarantor hereby consents to the
terms and conditions of this Amendment and Consent and confirms that its
Guaranty remains in full force and effect and continues to secure the
Obligations pursuant to the terms thereof as amended hereby. Each Pledgor and
Grantor (as such terms are defined in the Loan Documents) hereby consents to the
terms of this Amendment and Consent and confirms that the security interests and
liens granted pursuant to the Loan Documents to which it is a party continue to
secure the Obligations pursuant to the terms thereof as amended hereby and that
such security interests and liens and Loan Documents remain in full force and
effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Lenders and the Agent that (i) the execution,
delivery and performance of this Amendment and Consent has been duly authorized
by all requisite
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corporate action on the part of the Borrower and other Loan Parties and will not
violate the certificates of incorporation, certificates of formation, by-laws or
operating agreements of the Borrower and other Loan Parties; (ii) this Amendment
and Consent is the legal, valid, binding and enforceable obligation of the
Borrower, enforceable against it in accordance with its terms; (iii) the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects on and as of the date hereof as though made on
and as of such date, except to the extent that any such representation or
warranty expressly relates to an earlier date and for changes therein permitted
or contemplated by the Credit Agreement as amended by this Amendment and
Consent; and (iv) no Default or Event of Default under the Credit Agreement has
occurred and is continuing.
SECTION 6. CONDITIONS TO EFFECTIVENESS. This Amendment and Consent
shall become effective (the ""Effective Date"") when, and only when, the Agent
shall have received counterparts hereof which when taken together shall have
been signed by the Borrower, the Guarantors and the Majority Lenders (whether on
the same or different counterparts).
SECTION 7. EFFECT ON THE LOAN DOCUMENTS.
(a) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import, and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended
hereby.
(b) Except as specifically amended herein, the Credit Agreement and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment and
Consent shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender under any of the Loan Documents, nor
shall it constitute a waiver of any provision of any of the Loan Documents,
including, without limitation, a waiver of any rights of any Lender arising out
of, or relating to, any Default or Event of Default that has occurred and is
continuing.
SECTION 8. COUNTERPARTS.
This Amendment and Consent may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
SECTION 9. GOVERNING LAW.
THIS AMENDMENT AND CONSENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment and Consent as of the date first above written.
BORROWER:
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President-Controller
GUARANTORS:
THE BEE-GEE SHOE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior V.P.-Controller
THE EL-BEE CHARGIT CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior V.P.-Controller
XXXXX-XXXXXXX WEST XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President-Controller
AGENT:
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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ISSUER:
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
LENDERS:
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: N/A
--------------------------------
Name:
Title:
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FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: V.P.
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
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