1
Exhibit 10(cc)
AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1, dated as of August 18, 1999 (this "AMENDMENT"), to the
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 27, 1998 (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 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:
- - - - - - - - - -
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement as provided below; and
WHEREAS, the Majority Lenders have agreed to such amendments 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 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 deleting in its entirety Section 2.5(b) thereof and inserting
in lieu thereof the following:
"(b) For a period of not less than 45 consecutive days during the
three month period commencing on January 1, 2000 and ending on March 31,
2000, the Borrower shall repay the Loans to the extent necessary so that
the outstanding principal amount of the Loans does not exceed an aggregate
of $10,000,000."
2
(b) By amending Section 5.1 thereof by deleting the Minimum Fixed
Charge Coverage Ratio of "1.75:1" for each Fiscal Quarter ending February 1,
1999 and thereafter and inserting in lieu thereof a new Minimum Fixed Charge
Coverage Ratio of "1.40:1."
(c) By deleting in its entirety Section 5.2 thereof and inserting in
lieu thereof the following:
"5.2 TOTAL INDEBTEDNESS. The Borrower shall not permit the total
outstanding Indebtedness of the Borrower and its Subsidiaries on a
consolidated basis, including, without limitation, Average Total Debt, at
the end of any Fiscal Quarter commencing with the Fiscal Quarter ending on
July 31, 1999 to exceed 5.0 times EBITDA determined on the basis of the
four Fiscal Quarters ending on the date of determination."
(d) By deleting Section 7.3 thereof and inserting in lieu thereof
the following:
"RESTRICTED PAYMENTS. The Borrower shall not and shall not permit any
of its Subsidiaries to (i) repurchase any of its Stock, declare or make any
dividend, payment or other distribution of assets, properties, cash,
rights, obligations or securities on account or in respect of any of its
Stock other than dividends paid to the Borrower or any wholly-owned
Subsidiary of the Borrower by any Subsidiary of the Borrower, including
without limitation to the Borrower by Chargit, except that the Borrower may
effect repurchases of its outstanding Stock in compliance with Rule lOb-18
under the Securities Exchange Act of 1934 during the two year period
commencing August 16, 1999 for an aggregate consideration of up to
$24,000,000 or (ii) purchase, redeem, prepay, defease or otherwise acquire
for value or make any payment (other than required interest payments) on
account or in respect of any principal amount of Indebtedness for borrowed
money, now or hereafter outstanding, except (A) the Loans, (B) the
Middletown Lease Payments, (C) in the case of a Subsidiary, payments may be
made to the Borrower on account of any Indebtedness owing to the Borrower
by such Subsidiary, (D) the Zanesville Bonds, and (E) the Moraine
Mortgage."
SECTION 3. CONSENT. Each Guarantor hereby consents to the terms and
conditions of this Amendment 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
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 4. 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 has been duly authorized by all
requisite corporate action on the part of the Borrower and other Loan Parties
and will not violate the
2
3
certificates of incorporation, certificates of formation, by-laws or operating
agreements of the Borrower and other Loan Parties; (ii) this Amendment 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 (iv) no Default or Event
of Default under the Credit Agreement has occurred and is continuing.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective (the "Effective Date") when, and only when, the Agent shall have
received (i) a fee of $225,000 from the Borrower for the account of the Lenders
and (ii) 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 6. 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 shall
not, except as expressly provided herein, operate as a waiver of any right,
power and remedy of any Lender under any of the Loan Documents, nor 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 7. COUNTERPARTS.
This Amendment 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 8. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.
3
4
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date first above written.
BORROWER
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: EVP, CFO
GUARANTORS
THE BEE-GEE SHOE CORP.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Secretary
THE EL-BEE CHARGIT CORP.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
and Secretary
XXXXX-XXXXXXX WEST XXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AGENT
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
4
5
ISSUER
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
LENDERS
CITICO USA, INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ Atty Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Name: Xxxx X. Xxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: N/A
-------------------------------
Name:
Title:
5
6
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: V.P.
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Account Executive
6
