10(e)(ii)
SECOND AMENDMENT
TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of February 25, 2002, is made by and among Big Lots Stores, Inc., an Ohio
corporation (formerly known as Consolidated Stores Corporation) (the
"BORROWER"), each of the Guarantors (as defined in the Credit Agreement defined
below), the Banks (as defined in the Credit Agreement defined below), National
City Bank in its capacity as administrative agent for the Banks under the Credit
Agreement (the "ADMINISTRATIVE AGENT") and as Lead Arranger and a Managing
Agent, Fleet National Bank, as Syndication Agent and a Managing Agent, PNC Bank,
National Association and First Union National Bank, as Documentation Agents and
Managing Agents, and Bank of America, N.A., The Bank of New York, and U.S. Bank
National Association (formerly known as Firstar Bank, N.A.), as Managing Agents.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that Credit Agreement, dated
as of May 8, 2001, as amended by that First Amendment to Credit Agreement, dated
as of October 20, 2001 (as so amended, the "CREDIT AGREEMENT"), and desire to
amend certain terms thereof as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth and incorporating the
above-defined terms herein and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Defined Terms; References. Terms not otherwise defined in this Amendment
shall have the respective meanings ascribed to them in the Credit Agreement.
Each reference to "hereof," "hereunder," "herein," "hereby," and similar
references contained in the Credit Agreement, and each reference to "this
Agreement" and similar references contained in the Credit Agreement, shall refer
to the Credit Agreement as and to the extent amended hereby.
2. Amendment of Credit Agreement.
A. New Definitions; Modified Definitions.
(I) Section 1.1 [Certain Definitions] of the Credit Agreement
is hereby amended to add the following definitions in the appropriate
alphabetical order:
"Accounts" means all now owned or hereafter acquired
or arising accounts, as defined in the UCC, of any Loan Party,
including any rights to payment for the sale or lease of goods or
rendition of services, whether or not they have been earned by
performance, together with all products and proceeds of any of the
foregoing.
"Borrowing Base" shall mean: (a) that amount which
equals 1.35 times that dollar amount set forth as "Projected Cash
Needs" in a Certificate of Cash Needs of the Loan Parties provided to
the Administrative Agent and the Banks no later than 5:00 p.m.
(Columbus time), February 25, 2002, until such time as an inventory
appraisal acceptable to Administrative Agent has been delivered to
Administrative Agent (and after allowing a sufficient time for its
review thereof) and the Banks; provided, however, that if such
appraisal has not been received by Administrative Agent on or before
May 28, 2002, through no fault of Borrower, and upon the written
request of Borrower to Administrative Agent and the Banks, the
Administrative Agent and Borrower shall negotiate in good faith to
determine an amount (the "Interim Borrowing
Base") which, utilizing the methods set forth herein for calculating
the Borrowing Base, is a reasonable approximation of the Borrowing Base
based on information then available (which information shall be then
contemporaneously shared with the Banks and Borrower), including any
preliminary information (to the extent acceptable to Administrative
Agent in its sole discretion) developed to such date by the Person
conducting the appraisal described in this definition; and,
Administrative Agent shall inform the Banks of the amount determined to
be the Interim Borrowing Base whereupon, unless the Required Banks
object to such amount in writing to Administrative Agent and Borrower
within five (5) Business Days, the Interim Borrowing Base (and any
additional Interim Borrowing Base(s) determined in a manner consistent
with the procedures hereof (including the procedure allowing for
objection by the Required Banks thereto)) shall be the Borrowing Base,
until such time as an acceptable appraisal has been delivered to and
reviewed by Administrative Agent in accordance with the preceding terms
of this definition; and (b) at all times after the receipt and review
of an inventory appraisal acceptable to Administrative Agent, that
positive amount which results from the subtraction of the Indebtedness
outstanding under the Senior Note Purchase Agreement from seventy
percent (70%) of the product of the Net Recovery Percentage for
Eligible Inventory multiplied by the Value of such Eligible Inventory,
and subject to such reasonable adjustments as Administrative Agent in
its sole discretion may elect.
"Borrowing Base Certificate" shall mean a written
certificate executed by the Borrower on behalf of the Loan Parties
setting forth the then current value of the Borrowing Base in form,
scope, and detail satisfactory to the Administrative Agent in its sole
discretion.
"Collateral" means all Accounts, Inventory, and
General Intangibles of each Loan Party.
"Eligible Inventory" shall mean Inventory located in
the United States (or in transit to the United States, but solely as to
which the seller thereof has been paid or otherwise satisfied in
accordance with applicable terms and either a Bank or Loan Party has in
its possession the documents of title thereto or a Loan Party has
become the owner thereof) of any of the Loan Parties that constitutes
finished goods held or to be held for sale by a Loan Party in the
ordinary course of its business at the time of determination and that:
(a) is owned by a Loan Party and with respect to which such Loan Party
has good and marketable title; (b) is not, in the Administrative
Agent's reasonable opinion, obsolete or unmerchantable; (c) if not in
transit, is located at premises owned or leased by such Loan Party or
on premises otherwise reasonably acceptable to the Administrative
Agent; (d) is subject to the first priority perfected security interest
of the Administrative Agent for the benefit of the Banks and itself
(subject only to the pari passu Liens of the noteholders under the
Senior Note Purchase Agreement); (e) is not work-in-process, spare
parts, packaging or shipping materials, supplies, ▇▇▇▇-and-hold
Inventory, returned or defective Inventory, or Inventory delivered on
consignment; and (f) the Administrative Agent, in the exercise of its
reasonable discretion, deems eligible based on such material collateral
and credit criteria as the Administrative Agent may from time to time
establish, provided, however, that the Administrative Agent shall give
the Borrower at least ten (10) days' written notice prior to
establishing such additional criteria and the reason(s) therefor. There
shall in any event be excluded from Eligible Inventory any goods
returned by a customer of a Loan Party that are determined by such Loan
Party or the Administrative Agent to be unsalable in the ordinary
course of business or held for return to vendors. If any Inventory at
any time ceases to be Eligible Inventory, such Inventory shall promptly
be excluded from the calculation of the Borrowing Base.
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"General Intangibles" means all now owned or
hereafter acquired or arising general intangibles, as defined in the
UCC, of any Loan Party, together with all products and proceeds of any
of the foregoing.
"Inventory" shall mean all now owned or hereafter
acquired inventory (as defined in the UCC), goods, merchandise, and
other personal property of any Loan Party, wherever located, held for
sale or lease or which are or might be furnished under any contract of
service, all raw materials, work in process, finished goods (including
embedded software), returned goods, and materials and supplies of any
kind, nature or description which are or might be used or consumed in
the business of any Loan Party or used in connection with the
manufacture, packing, shipping, advertising, selling or finishing of
such goods, such merchandise or such other personal property, and all
documents of title or other documents representing them, together with
all products and proceeds of any of the foregoing.
"Net Recovery Percentage" shall mean the fraction,
expressed as a percentage, (a) the numerator of which is an amount
equal to the lowest amount of recovery in respect of the Inventory at
any time on an orderly liquidation value basis as set forth in the most
recent acceptable appraisal of Inventory received by Administrative
Agent, and (b) the denominator of which is the original cost of the
aggregate amount of such Inventory subject to such appraisal;
notwithstanding anything to the contrary contained herein, the Net
Recovery Percentage shall be determined in the same manner, and shall
be consistent with, the most recent appraisal acceptable to
Administrative Agent of the inventory prior to the date of calculation.
"Security Agreement" means the Security Agreement
with respect to the Collateral dated on or about the date hereof
between the Loan Parties and Administrative Agent for the benefit of
Administrative Agent and the Banks or an agreement among the same
parties, together with the noteholders under the Senior Note Purchase
Agreement, granting a security interest in the Collateral and including
intercreditor and collateral agency provisions.
"UCC" means the Uniform Commercial Code, as in effect
from time to time, of the State of Ohio or of any other state the laws
of which are required as a result thereof to be applied in connection
with the issue of perfection of security interests; provided, that to
the extent that the UCC is used to define any term herein or in any
other documents and such term is defined differently in different
Articles or Divisions of the UCC, the definition of such term contained
in Article or Division 9 shall govern.
"Value" shall mean, as determined by Administrative
Agent in good faith, with respect to Inventory, cost computed on an
average cost basis in accordance with GAAP (and consistent with the
current practices of the Loan Parties) and excluding any portion of the
cost to a Loan Party equal to the profit earned by any Affiliate of a
Loan Party on the sale thereof to such Loan Party; notwithstanding
anything to the contrary contained herein, the cost of the Inventory
shall be computed in the same manner and consistent with the most
recent appraisal, acceptable to Administrative Agent, of the Inventory
prior to the date of determination.
(II) The existing definition set forth in the Credit Agreement
of each of the following defined terms is hereby amended and restated in its
entirety as follows:
"Consolidated Income Adjustment" shall mean the
adjustment(s) listed below to be made to any computation of
Consolidated Net Income for the corresponding quarter listed below in
the amount specified next to such quarter; provided, however, that the
adjustment
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corresponding to the quarter ending on or about February 2, 2002, shall
apply only when the Company publicly reports an adjustment for such
quarter (and solely to the extent of such reported adjustment, but in
no event in an amount that exceeds the amount set forth below for such
quarter) (the "ADJUSTMENT") and such Adjustment shall be deemed
modified (without any further action) to equal the amount of such
Adjustment as and when reflected in the Form 10-K to be filed by the
Company with the Securities Exchange Commission with respect to the
fiscal year of Company ending on or about February 2, 2002, up to an
amount not in excess of the amount of the Adjustment set forth below
plus 5% thereof. For the avoidance of doubt, if the Adjustment as
reflected in the Form 10-K filed by the Company with the Securities
Exchange Commission with respect to the fiscal year of Company ending
on or about February 2, 2002, is less than the amount therefor set
forth below, the amount set forth below shall thereupon be reduced to
reflect such lesser amount.
QUARTER ENDING ON OR ABOUT
DATE SPECIFIED BELOW: ADJUSTMENT:
-------------------------- -----------
February 2, 2002 $83,400,000
"Debt Rating" shall mean the rating of Big Lots,
Inc., an Ohio corporation (formerly Consolidated Stores Corporation, a
Delaware corporation), parent of the Borrower, as a corporate issuer
by each of Standard & Poor's or ▇▇▇▇▇'▇.
"Loan Documents" shall mean this Agreement, the
Administrative Agent's Letter, the Guaranty Agreement, the Security
Agreement, the Intercompany Subordination Agreement, the Notes, the
Intercreditor Agreement, any Letter of Credit Applications, and any
other instruments, certificates, letters, or documents delivered or
contemplated to be delivered hereunder or thereunder or in connection
herewith or therewith, as the same may be supplemented or amended from
time to time in accordance herewith or therewith, and Loan Document
shall mean any of the Loan Documents.
(III) The following defined terms in Section 1.1 [Certain
Definitions] of the Credit Agreement are hereby modified as follows:
(a) The last sentence of the definition of
"Applicable Margin" is hereby amended and restated in its entirety
as follows:
The Applicable Margin shall be computed in accordance
with the parameters set forth on Schedule 1.1(A);
provided, however, that the Debt Rating in effect
shall be deemed to be at Level V through the last day
of Borrower's second fiscal quarter of fiscal year
2002 (such fiscal year ending on or about January 31,
2003) unless the actual Debt Rating is at Level VI on
such Schedule in which event the actual Debt Rating
shall control.
(b) The last sentence of the definition of
"Applicable Revolving Credit Facility Fee Rate" is hereby amended and
restated in its entirety as follows:
The Applicable Revolving Credit Facility Fee Rate
shall be computed in accordance with the parameters
set forth on Schedule 1.1(A); provided, however, that
the Debt Rating in effect shall be deemed to be at
Level V through the last day of Borrower's second
fiscal quarter of fiscal year 2002 (such fiscal year
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ending on or about January 31, 2003) unless the
actual Debt Rating is at Level VI on such Schedule in
which event the actual Debt Rating shall control.
(c) The last sentence of the definition of
"Applicable 364-Day Loan Facility Fee Rate" is hereby amended and
restated in its entirety as follows:
The Applicable 364-Day Loan Facility Fee Rate shall
be computed in accordance with the parameters set
forth on Schedule 1.1(A); provided, however, that the
Debt Rating in effect shall be deemed to be at Level
V through the last day of Borrower's second fiscal
quarter of fiscal year 2002 (such fiscal year ending
on or about January 31, 2003) unless the actual Debt
Rating is at Level VI on such Schedule in which event
the actual Debt Rating shall control.
(d) Clause (ix) of the definition of "Permitted
Liens" in the Credit Agreement is hereby designated Clause (xi) and the
following Clauses (ix) and (x) are added to such definition:
(ix) Liens on the Collateral in favor of the
noteholders under the Senior Note Purchase Agreement
securing a principal amount of indebtedness under the
Senior Note Purchase Agreement not at any time in
excess of $204,000,000, together with interest,
costs, make-whole amounts, and expenses thereunder,
which Liens shall be of no greater priority than
those of the Administrative Agent for the benefit of
the Banks and itself;
(x) Liens on the Collateral in favor of the
Administrative Agent for the benefit of the Banks
and itself securing the Obligations, and
B. Borrowing Base and Miscellaneous Matters.
(I) The Credit Agreement is hereby amended to add the
following Section 2.12:
2.12 Maximum Aggregate Facility Usage.
Notwithstanding any term or condition of
this Agreement to the contrary, in no event shall:
(i) the Aggregate Facility Usage at any time
exceed the lesser of the (a) sum of the Revolving Credit
Commitments and the 364-Day Commitments or (b) the Borrowing
Base; or
(ii) Borrower request any Loan or Letter of
Credit which after giving effect thereto would cause the
Aggregate Facility Usage to exceed the lesser of (a) the sum
of the Revolving Credit Commitments and the 364-Day
Commitments or (b) the Borrowing Base.
At any time that the Aggregate Facility
Usage exceeds the Borrowing Base set forth on the most recent
Borrowing Base Certificate delivered to Administrative Agent
pursuant to Section 7.3.9, Borrower shall within one (1)
Business Day prepay to the Administrative Agent for the pro
rata benefit of the Banks a principal amount of the Loans
outstanding equal to such excess, together with all interest,
fees, loss, costs, and
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expenses (including any which arise under Section 4.6.2)
related thereto; provided that, if the prepayment of Loans
would be insufficient to eliminate such excess amount, the
Borrower shall within such time, and in addition to the
prepayment required above, deposit in a non-interest bearing
account (provided that with the consent of the Administrative
Agent, such consent not to be unreasonably withheld, such
account may be an interest bearing account) with the
Administrative Agent, an amount which is sufficient to
eliminate such excess and which shall be held as cash
collateral for Borrower's Obligations in respect of Letters of
Credit Outstanding; and the Borrower hereby pledges to the
Administrative Agent and the Banks, and grants to the
Administrative Agent and the Banks a security interest in, all
such cash and the related deposit account as security for such
Obligations. From time to time and upon request of the
Borrower, the Administrative Agent shall return to the
Borrower any portion of the amount held in such cash
collateral account which is no longer required to satisfy the
foregoing.
(II) The Credit Agreement is hereby amended to add the
following Section 7.3.9 and Section 7.3.10:
7.3.9 Monthly Borrowing Base Certificate.
On or before the twentieth (20th) day of
each month (i) a Borrowing Base Certificate as of the last day
of the prior month, and (ii) such further certificates,
reports, agings, documents, and information as Administrative
Agent may reasonably require.
7.3.10 Monthly Financial Statements.
As soon as available and in any event within
thirty (30) calendar days after the end of each of each month,
financial statements of the Company, consisting of a
consolidated balance sheet as of the end of such month and
related consolidated statements of income, stockholders'
equity and cash flows for the month then ended and the fiscal
year through that date, all in reasonable detail and certified
(subject to normal year-end audit adjustments and any
applicable quarter-end adjustments reflected in the statements
provided pursuant to Section 7.3.1) by the Chief Executive
Officer, President or Chief Financial Officer of the Borrower
as having been prepared in accordance with GAAP, consistently
applied, and setting forth in comparative form the respective
financial statements for the corresponding date and period in
the previous fiscal year.
(III) The following clause is hereby deleted from the first
sentence of Section 7.1.6:
, no more than twice per year (unless an Event of
Default has occurred and is continuing),
(IV) Schedule 1.1(A) to this Amendment hereby amends and
restates in its entirety Schedule 1.1(A) of the Credit Agreement.
C. Non-Equal Assignments of Revolving Credit Commitments and
364-Day Commitments.
Clause (3) of Section 10.11(i) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
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(3) any Bank which assigns any portion of its Commitment
shall be permitted to assign differing percentages of its
Revolving Credit Commitment and 364-Day Loan Commitment
which it is assigning.
D. Permitted Indebtedness to Noteholders.
Schedule 7.2.1 to this Amendment hereby amends and restates in
its entirety Schedule 7.2.1 of the Credit Agreement, and the Banks hereby
consent to the increase in the effective interest rate on, and the provision of
security for, the Senior Notes as reflected on Schedule 7.2.1.
3. Effectiveness of Amendment, Conditions Precedent. This Amendment shall become
effective on the date (i) that the Administrative Agent shall have received from
each of Borrower, the Loan Parties, and the Required Banks a counterpart hereof
signed by such party or facsimile or other written confirmation (in form
satisfactory to Administrative Agent) that such party has signed a counterpart
hereof, and (ii) that each of the following conditions precedent has been
satisfied:
(a) The Borrower shall have paid to the Administrative
Agent and each of the Banks all fees, costs,
expenses, and disbursements which are due and payable
to the Administrative Agent and the Banks in
connection with this Amendment (and which are known
to Borrower by way of invoice, fee letter, or other
writing);
(b) The Administrative Agent shall have received for the
benefit of the Banks and the Administrative Agent a
first perfected security interest in all of the
Borrower's and each Guarantor's Collateral, as such
term is defined for purposes of the Credit Agreement
at Section 2.A.(I) hereof (the "COLLATERAL"), subject
to no other Liens other than Permitted Liens. The
Borrower and the Guarantors shall have executed and
delivered to the Administrative Agent for the benefit
of itself and the Banks one or more security
agreements in form and substance satisfactory to
Administrative Agent and shall have done (and shall
continue to do after the effectiveness hereof) all
such other things necessary in the reasonable opinion
of Administrative Agent and its counsel to provide a
first perfected security interest in the Collateral,
including fully cooperating with the Administrative
Agent in connection with the creation and perfection
of the foregoing security interests, and the Borrower
and the Guarantors hereby authorize (i) the execution
and filing of all financing statements by
Administrative Agent on behalf of the Banks and
Administrative Agent, without the execution thereof
by any of Borrower or any Guarantor, naming the Loan
Parties as "debtors,", and (ii) the exercise of
"control," as such term is defined in Article 9 of
the UCC(as such term is defined for purposes of the
Credit Agreement at Section 2.A.(I) hereof), over the
Collateral in order to fully perfect the security
interests therein. The implementation of the
foregoing shall be in addition to and not in lieu of
any other rights and remedies provided to the
Administrative Agent and the Banks with respect to
the Collateral;
(c) Each of the Guarantors shall have consented to this
Amendment and evidenced its consent hereto and
reaffirmed its obligations set forth in the Guaranty
Agreement, Intercompany Subordination Agreement, and
each other Loan Document given by it.
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In the event that any of the foregoing has not been accomplished prior to the
time at which Borrower publicly announces its earnings for fiscal year 2001,
this Amendment shall be void and of no force or effect and the Administrative
Agent and the Banks shall have no obligations hereunder and this Amendment,
automatically, without notice or demand of any kind whatsoever, shall be void
and of no force or effect whatsoever.
4. Continued Effectiveness of Amendment, Conditions Subsequent. This Amendment
shall no longer be effective and shall be void and of no force or effect, and it
shall be an Event of Default under Section 8.1.3 of the Credit Agreement, if any
one of the following shall not occur at the time set forth therefor (and
Borrower and each Guarantor acknowledges and agrees that any such Event of
Default would be a material Event of Default):
(a) The Borrower shall have provided to the
Administrative Agent and the Banks, no later than
forty-five (45) days from the date hereof, that
actuarial report recently prepared for Borrower by
Deloitte & Touche regarding insurance coverage of the
Loan Parties and the sufficiency and costs thereof.
(b) Within thirty (30) days of the date hereof, the
parties to the Senior Note Purchase Agreement shall
have entered into a waiver or amendment to the Senior
Note Purchase Agreement, satisfactory in form and
substance to the Administrative Agent, having
substantially the same effect on the Senior Note
Purchase Agreement and on the rights and remedies of
the noteholders thereunder as this Amendment has on
the Credit Agreement and the rights and remedies of
the Administrative Agent and the Banks under the
Credit Agreement; and, for such thirty (30) day
period and provided that any holder or holders of
more than 50% in principal amount of the Series
2001-A Notes (as such term is defined in the Senior
Note Purchase Agreement) have not declared such notes
to be due and payable, the failure of such
noteholders to enter into such waiver or amendment of
the Senior Note Purchase Agreement shall not in and
of itself be a Potential Default or Event of Default
under the Credit Agreement.
(c) Within thirty (30) days of the date hereof, the
noteholders under the Senior Note Purchase Agreement
shall have entered into a collateral agency, sharing
and security agreement (or into separate agreements
of similar effect) with the Administrative Agent for
the benefit of the Banks and the Administrative Agent
(and in form and substance satisfactory to the
Administrative Agent and the Required Banks) whereby,
inter alia, the priority of the Liens of such
noteholders on the Collateral shall be pari passu
(i.e., of equal priority) with the Liens on the
Collateral of the Administrative Agent for the
benefit of the Banks and itself.
(d) The Administrative Agent shall have received no later
than sixty (60) days (subject to extension by the
Administrative Agent in its reasonable judgment based
on the availability of Inventory Appraisers and Field
Examiners) from the date hereof (i) an appraisal of
the value of the inventory of the Loan Parties, in
form and substance satisfactory to Administrative
Agent (and setting forth, inter alia, the liquidation
value of such inventory) conducted by an independent
inventory appraiser retained by Administrative Agent
or its counsel after consultation with Borrower
("INVENTORY APPRAISER"), and (ii) an independent
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field audit of the assets and operations of the Loan
Parties, in form and substance satisfactory to
Administrative Agent, conducted by an independent
field examiner retained by Administrative Agent or
its counsel after consultation with Borrower ("FIELD
EXAMINER"). The Borrower and each Guarantor shall
fully cooperate with the Inventory Appraiser and
Field Examiner in all respects. The Borrower
unconditionally agrees to pay or reimburse and hold
the Administrative Agent, its counsel, and the Banks
harmless against all expenses, disbursements, and
claims for payment of fees and expenses of the
Inventory Appraiser and Field Auditor, which fees and
expenses shall be reimbursable expenses in accordance
with Sections 9.5 and 10.3 of the Credit Agreement.
The Administrative Agent shall provide copies of such
inventory appraisal and field audit to the Banks
promptly upon receipt.
(e) At all times, the Administrative Agent for the
benefit of itself and the Banks shall have a
perfected security interest in the Collateral subject
to no Liens other than Permitted Liens.
(f) Within twenty (20) days of the date hereof, the
Borrower and the Guarantors shall each have furnished
to the Administrative Agent for the benefit of the
Banks and itself a certified copy of the resolutions
adopted by its board of directors or governing body
authorizing the Borrower and the Guarantors, as the
case may be, to execute, deliver, and perform their
respective obligations under this Amendment, and a
certificate of the incumbency of the officers
authorized to execute and deliver the Amendment and
the other Loan Documents relating hereto on behalf of
the Borrower and the Guarantors, together with the
true signature of such officers, and together with
certified articles or certificates of incorporation
and bylaws or codes of regulations.
(g) Within twenty (20) days of the date hereof, the
Borrower and the Guarantors shall have furnished to
the Administrative Agent and the Banks the written
opinion of counsel to the Borrower and the Guarantors
upon which the Administrative Agent and the Banks may
rely and which shall be in form and substance
satisfactory to the Administrative Agent and contain
the following opinions:
(i) the Borrower and the Guarantors are duly
organized and validly existing under the
Laws of the jurisdictions under which they
are organized and are in good standing under
such Laws and under the Laws of those
additional jurisdictions in which the
conduct of their business would make such
Laws applicable;
(ii) the Borrower and the Guarantors and their
officers have the power and authority to
execute, deliver, and perform this Amendment
and the Loan Documents related thereto and
have taken all necessary action to authorize
the execution, delivery, and performance of
this Amendment and such Loan Documents;
(iii) this Amendment and the security agreement(s)
relating to the Collateral have been duly
executed and delivered on behalf of the
Borrower and the Guarantors and constitute
valid, enforceable, and binding obligations
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of the Borrower and the Guarantors in
accordance with their respective terms and
do not violate any Law or the Senior Note
Purchase Agreement, and the Administrative
Agent on behalf of itself and the Banks have
a valid and perfected security interest in
the Collateral; and
(iv) to the knowledge of such counsel there is no
action, suit, or proceeding pending, or to
the knowledge of such counsel threatened
against the Borrower or the Guarantors, in
any court or before or by any governmental
instrumentality, whether federal, state,
county or municipal, except as set forth on
an exhibit annexed to the opinion letter.
(h) At any time, the Borrower and the Guarantors shall
agree to permit the Administrative Agent or its
counsel to retain financial consultants and other
professionals to assist in evaluating the financial
condition of the Loan Parties, and each of the
Borrower and each Guarantor shall fully cooperate
with the financial consultants and other
professionals engaged by Administrative Agent or its
counsel in connection with the review by such
professionals of the financial statements and
operations of the Loan Parties. The Borrower shall
unconditionally agree to pay and reimburse and hold
the Administrative Agent and its counsel harmless
against all expenses, disbursements, and claims of
for payment of fees and expenses of such financial
consultants and other professionals, which fees and
expenses shall be reimbursable expenses in accordance
with Sections 9.5 and 10.3 of the Credit Agreement.
(i) Borrower agrees that the Administrative Agent shall
have the right periodically (subject to (i) the
reasonable exercise thereof upon ten (10) days prior
written notice to the Borrower or, (ii) upon the
occurrence of an Event of Default or Potential
Default, the Administrative Agent's sole discretion)
to: (i) retain an Inventory Appraiser to conduct an
appraisal of the value of the inventory of the Loan
Parties, in form and substance satisfactory to
Administrative Agent and (ii) retain a Field Examiner
to conduct an independent field audit of the assets
and operations of the Loan Parties, in form and
substance satisfactory to Administrative Agent.
(j) Borrower shall execute and deliver, or cause to be
executed and delivered to the Administrative Agent
such documents and agreements, and shall take or
cause to be taken such actions, as the Administrative
Agent may, from time to time reasonably request to
carry out the terms and conditions of this Amendment
and the other Loan Documents.
5. Representations and Warranties. Each of the Loan Parties hereby represents
and warrants to the Banks, after giving effect to this Amendment, as follows:
A. The representations and warranties of the Loan Parties
contained in the Credit Agreement and the other Loan Documents, are true and
correct on and as of the date hereof with the same force and effect as though
made by the Loan Parties on such date, except to the extent that any such
representation or warranty expressly relates solely to a previous date; and
B. Each of the Loan Parties is in compliance with all terms,
conditions, provisions, and covenants contained in the Credit Agreement and the
other Loan Documents and the execution,
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delivery, and performance of this Amendment and the other Loan Documents related
hereto has been duly authorized by all necessary corporate action, requires no
governmental approval, and will neither contravene, conflict with, nor result in
the breach of any law, charter, articles, or certificate of incorporation,
bylaws, code of regulations, or agreement governing or binding upon such Loan
Party or any of its property; and, no Event of Default or Potential Default
after giving effect hereto has occurred and is continuing or would result from
the making of this Amendment.
6. Amendment. The Credit Agreement and other Loan Documents referred to herein
and certain of the exhibits and schedules thereto are hereby amended in
accordance with the terms hereof and any reference to the Credit Agreement or
other Loan Documents in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement or such Loan Document, including such
schedules and exhibits, as amended hereby. In the event of irreconcilable
inconsistency between the terms or provisions hereof and the terms or provisions
of the Credit Agreement or such Loan Document, including such schedules and
exhibits, the terms and provisions hereof shall control.
7. Force and Effect. Each of the Loan Parties reconfirms, restates, and ratifies
the Credit Agreement and all other documents executed in connection therewith
except to the extent any such documents are expressly modified by this Amendment
and each of the Loan Parties confirms that all such documents have remained in
full force and effect since the date of their execution.
8. Governing Law. This Amendment shall be deemed to be a contract under the laws
of the State of Ohio and for all purposes shall be governed by and construed and
enforced in accordance with the internal laws of the State of Ohio without
regard to its conflict of laws principles.
9. Counterparts; Telecopy. This Amendment may be signed in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of executed
signature pages by facsimile transmission will constitute effective and binding
execution and delivery.
10. This Amendment Included in Loan Documents. The Borrower and the Guarantors
acknowledge and agree that this Amendment and each other document, instrument,
and agreement referred to herein are Loan Documents as such term is used in the
Credit Agreement.
11. Release; No Discharge. As additional consideration for the Administrative
Agent's and the Banks' entering into this Amendment, the Borrower and the
Guarantors each hereby fully and unconditionally release and forever discharge
the Administrative Agent and the Banks, their agents, employers, directors,
officers, attorneys, branches, affiliates, subsidiaries, successors, and assigns
and all persons, firms, corporations, and organizations acting on any of their
behalves (the "RELEASED PARTIES") of and from any and all claims, liabilities,
demands, obligations, damages, losses, actions, and causes of action whatsoever
which the Borrower or any of the Guarantors may now have or claim to have
against the Administrative Agent or any Bank or any other Released Parties as of
the date hereof, whether presently known or unknown and of any nature and extent
whatsoever, including, without limitation, on account of or in any way
affecting, concerning or arising out of or founded upon this Amendment or the
other Loan Documents, including but not limited to all such loss or damage of
any kind heretofore sustained or that may arise as a consequence of the dealings
between the parties up to and including the date hereof, including but not
limited to, the administration or enforcement of the Loans, the Notes, the
Obligations, this Amendment, the Credit Agreement, or any other Loan Documents.
The obligations of the Borrower and the Guarantors under the Loan Documents and
this Amendment shall be absolute and unconditional and shall remain in full
force and effect without regard to, and shall not be released, discharged, or in
any way affected by any one or more:
11
(a) exercise or nonexercise of any right, remedy, power
or privilege under or in respect of this Amendment,
any other Loan Document, any document relating to or
evidencing any of the Administrative Agent's or
Banks' Liens or applicable Law, including, without
limitation, any waiver, consent, modification,
amendment, release, impairment, extension,
indulgence, or other action or inaction in respect
thereof; or
(b) other act or thing or omission or delay to do any
other act or thing which could operate to or as a
discharge of the Borrower or any Guarantor as a
matter of law, other than payment in full of all
Obligations, including but not limited to all
obligations under the Loan Documents and this
Amendment.
12. Termination. Notwithstanding anything contained herein to the contrary, in
the event that this Amendment shall be or become void or of no force or effect
(whether by the terms hereof, by written agreement of the parties hereto, or
otherwise), all provisions hereof pertaining to indemnification, reimbursement,
Collateral, financial consultants, waiver of defenses, waiver of jury trial,
limitation of liability, and the like (including without limitation Sections 11,
12, 13, 16, 17, 19, 20, 22-25, 26 and 27) shall survive any such termination.
13. Construction. This Amendment shall not be construed more strictly against
the Administrative Agent or any Bank merely by virtue of the fact that this
Amendment may have been or has been prepared by the Administrative Agent, the
Banks, or their counsel, it being recognized that the Borrower and the
Guarantors have contributed substantially and materially to the preparation of
this Amendment. The Borrower and the Guarantors acknowledge and waive any claim
contesting the existence and the adequacy of the consideration given by any of
the other parties hereto for entering into this Amendment. All of the Collateral
shall remain in all respects subject to the Lien of the applicable security
agreement(s), and nothing herein contained and nothing done pursuant hereto
shall affect the Lien of any such Loan Document or the priority thereof. Nothing
in this Amendment shall be intended or construed to hold the Administrative
Agent or any Bank liable or responsible for any expenses, disbursements,
liability, action, inaction, or obligation of any kind or nature whatsoever of
the Borrower or any of the Guarantors.
14. Entire Agreement. The Borrower and the Guarantors each acknowledge that
there are no other agreements, representations, either or oral or written,
expressed or implied, not embodied in this Amendment and the other Loan
Documents, which, together, represent a complete integration of all prior and
contemporaneous agreements and understandings of the Borrower, the Guarantors,
the Administrative Agent, and the Banks.
15. Time is of the Essence. Time shall be of the strictest essence in the
performance of each and every one of the Borrower's and the Guarantors'
obligations hereunder and under the Loan Documents, including without
limitation, the obligations to make payments to the Administrative Agent, to
furnish information to the Administrative Agent and the Banks, and to comply
with all reporting requirements.
16. No Waiver of Rights Under Loan Documents. Any negotiation heretofore or
hereafter and any action undertaken pursuant to this Amendment or any other Loan
Document shall not, constitute a waiver or amendment of the Administrative
Agent's or any Bank's rights or remedies under the Loan Documents or this
Amendment or prejudice the Administrative Agent's or any Bank's rights under the
Loan Documents or this Amendment except to the extent specifically set forth
herein. No party shall be bound by any oral agreement, and no rights or
liabilities, either expressed or implied, shall arise on the part of any party,
or any third party, until and unless the agreement on any given issue has been
reduced to a
12
written agreement executed in accordance with the provisions of Section 10.1 of
the Credit Agreement. Furthermore, the parties agree that this Amendment may be
amended, replaced, or supplemented only by a written agreement executed in
accordance with the provisions of Section 10.1 of the Credit Agreement.
17. Joint and Several Liability; Voluntary Agreement; Indemnity.
(a) The Borrower and the Guarantors each acknowledge and
agree that they are jointly and severally liable
under this Amendment. The Borrower and the Guarantors
represent and warrant that each of them is
represented by legal counsel of their choice and that
their counsel has had the opportunity to review this
Amendment, that each of them is fully aware of the
terms contained herein and that each of them has
voluntarily and without coercion or duress of any
kind or nature whatsoever entered into this
Amendment. The provisions of this Amendment shall
survive the execution and delivery of this Amendment.
(b) In addition to and not by way of limitation of
Sections 9.5 and 10.3 of the Credit Agreement, the
Borrower and the Guarantors agree, jointly and
severally, to indemnify the Administrative Agent and
the Banks (each an "INDEMNITEE") and hold each of the
Administrative Agent and Banks harmless in respect of
any and all claims, liabilities, damages, and
expenses (including, without limitation attorneys'
fees and expenses) asserted by any Person whatsoever
or incurred by the Administrative Agent or any Bank
arising in connection with the Loan Documents or this
Amendment, except that no such indemnification shall
be owing to an Indemnitee to the extent of that
Indemnitee's gross negligence or willful misconduct.
This indemnity agreement shall survive the
termination of this Amendment and the Loan Documents
and the consummation of the transactions contemplated
hereby.
18. Counterparts. This Amendment may be executed in one or more counterparts and
by facsimile, each of which shall constitute an original and all of which taken
together shall constitute one Amendment. Each party executing this Amendment
represents that such party has the full authority and legal power to do so.
19. No Waiver of Remedies. The Administrative Agent and each Bank expressly
reserves any and all rights and remedies available to it under this Amendment,
the other Loan Documents, any other agreement or at law or in equity or
otherwise. No failure to exercise, or delay by the Administrative Agent or any
Bank in exercising, any right, power, or privilege hereunder or under this
Amendment or any other Loan Document shall preclude any other or further
exercise thereof, or the exercise of any other right, power, or privilege. The
rights and remedies provided in this Amendment and the other Loan Documents are
cumulative and not exhaustive of each other or of any right or remedy provided
by law or equity or otherwise. No notice to or demand upon the Borrower or any
of the Guarantors in any instance shall, in itself, entitle the Borrower or any
of the Guarantors to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the right of the Administrative Agent or
any Bank to any other or further action in any circumstance without notice or
demand.
20. No Third Party Beneficiaries. By execution of this Amendment, the
Administrative Agent and the Banks do not intend to assume and are not hereby
assuming any obligation to any third party. No third party shall be or shall be
deemed a beneficiary of this Amendment.
13
21. Governing Law and Binding Effect. This Amendment shall be deemed to be a
contract under the Laws of the State of Ohio for all purposes shall be governed
by and construed and enforced in accordance with the Laws of the State of Ohio,
without regard to its conflict of laws principles. This Amendment shall be
binding upon and shall inure to the benefit of the Borrower, the Guarantors, the
Administrative Agent, the Banks, and their respective successors and assigns;
provided, however, that none of the Borrower or any Guarantor may assign any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent and the Banks.
22. LIMITATION ON DAMAGES. NEITHER THE ADMINISTRATIVE AGENT NOR ANY BANK NOR ANY
AGENT OR ATTORNEY FOR OR OF THE ADMINISTRATIVE AGENT OR ANY BANK SHALL BE LIABLE
TO THE BORROWER OR ANY OF THE GUARANTORS FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING FROM ANY BREACH OF CONTRACT, TORT, OR
OTHER WRONG RELATING TO THE ESTABLISHMENT, ADMINISTRATION, OR COLLECTION OF THE
OBLIGATIONS (AS DEFINED IN THIS AGREEMENT) OR THIS AMENDMENT OR ANY OTHER LOAN
DOCUMENT OR THE ACTION OR INACTION OF THE ADMINISTRATIVE AGENT, ANY BANK, THE
BORROWER, OR ANY GUARANTOR UNDER THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR
OTHERWISE.
23. WAIVER OF RIGHT TO TRIAL BY JURY. THE BORROWER AND THE GUARANTORS EACH
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION BASED UPON, RELATING TO OR
ARISING UNDER THIS AMENDMENT, ANY OTHER LOAN DOCUMENT, OR ANY OTHER AGREEMENT,
DOCUMENT, OR INSTRUMENT DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ANY
TRANSACTION RELATED HERETO OR THERETO OR THE SUBJECT MATTER HEREOF OR THEREOF,
IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE BORROWER
AND THE GUARANTORS EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT OR OFFICIAL BODY AS WRITTEN EVIDENCE OF THE CONSENT
OF THE BORROWER AND THE GUARANTORS TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY THE BORROWER AND
THE GUARANTORS, AND EACH OF THEM ACKNOWLEDGES THAT NONE OF THE ADMINISTRATIVE
AGENT, THE BANKS, NOR ANY PERSON ACTING ON BEHALF OF ANY OF THEM HAS OR HAVE
MADE ANY REPRESENTATIONS OF FACT, LAW, OR OTHERWISE TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE BORROWER AND
THE GUARANTORS EACH FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS AMENDMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED BY ITS OWN FREE WILL, AND THAT EACH OF THEM HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AND THE GUARANTORS
EACH FURTHER ACKNOWLEDGE THAT IT HAS READ AND UNDERSTANDS THE MEANING OF THIS
WAIVER PROVISION.
24. CONSENT TO JURISDICTION. THE BORROWER AND THE GUARANTORS EACH HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON
PLEAS OF FRANKLIN COUNTY, STATE OF OHIO, OR ANY SUCCESSOR
14
TO SAID COURT, AND TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, OR ANY SUCCESSOR TO SAID
COURT, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL
DIRECTED TO SUCH PARTY AT THE ADDRESSES PROVIDED FOR IN SECTION 10.6 OF THE
CREDIT AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL
RECEIPT THEREOF. THE BORROWER AND THE GUARANTORS EACH WAIVE ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN
AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE.
25. Expenses. In addition to and not by way of limitation of Sections 9.5 and
10.3 of the Credit Agreement and the relevant terms hereof, the Borrower and the
Guarantors, jointly and severally, agree to reimburse the Administrative Agent
and the Banks for all costs and expenses (including, without limitation, all
fees and expenses of counsel, financial consultants, accountants, or other
professionals with whom the Administrative Agent or any Bank may consult and all
expenses and costs of litigation or preparation therefor) arising in connection
with any bankruptcy case or similar proceeding involving any Loan Party or any
proceeding or matter therein or related thereto and including without limitation
any proof of claim, motion, adversary proceeding, plan of reorganization, or
discussions, negotiations, settlement talks, or meetings relating thereto, or
any appeal, hearing, dispute, claim, action, or the like in any such case or
proceeding whether or not relating to this Amendment, the Credit Agreement, or
any other Loan Document.
The determination regarding usage of counsel will be in the sole and absolute
discretion of each of the Banks and the Administrative Agent, and the legal
expenses of all such counsel shall be subject to the reimbursement provisions
set forth herein and in the Credit Agreement. The Borrower and the Guarantors
each directs and authorizes the Administrative Agent and Banks to debit
automatically from any account of the Borrower or any Guarantor maintained at
the Administrative Agent or any Bank the amount of all such costs and expenses.
26. Further Assurances. The Borrower and the Guarantors will from time to time,
make, do, exercise, and acknowledge, as requested by the Administrative Agent
from time to time, such further agreements, certificates, documents,
instruments, acts, deeds, conveyances, mortgages, security agreements, financing
statements, continuation statements, and other assurances as may be required or
requested for the purpose of effectuating the intent hereof and of the Loan
Documents.
27. Consent, Agreement and Acknowledgment of Guarantor. The Guarantors each
consents and agrees to each and every term and provision of this Amendment, as
well as to all actions and transactions contemplated under this Amendment and
the execution and delivery of this Amendment, and agrees and acknowledges that
payment of all of the obligations of any of the Borrower or any Guarantor and
all other Obligations are guarantied by the Guarantors. Each of the Guarantors
further consents and agrees that neither this Amendment nor any actions or
transactions contemplated hereunder shall provide any Guarantor with any defense
to any obligation of the Guarantor under the Guaranty Agreement.
28. Reservation of Rights as to Other Obligations. Each of the Borrower and the
Guarantors acknowledges and agrees that each may have other loans from or
obligations to the Administrative Agent or any of the Banks, or any of their
Affiliates, other than the Obligations which are the subject of this Amendment
(hereinafter, the "OTHER OBLIGATIONS"), which Other Obligations are in no way
affected by this Amendment and remain fully enforceable in accordance with their
own terms and provisions. Each of the Borrower and the Guarantors hereby agrees
that each of the Administrative Agent and each of the
15
Banks, by entering into this Amendment, in no way waives, discharges, releases,
or compromises any claims, causes of action, or rights as to such Other
Obligations, and each of the Borrower and each of the Guarantors agrees and
acknowledges that it continues to be liable for payment and performance of such
Other Obligations notwithstanding the entry into this Amendment by the
Administrative Agent and the Banks.
29. Miscellaneous. This Amendment is made for the sole benefit and protection of
the Administrative Agent, the Banks, the Borrower, and the Guarantors and their
respective successors and assigns. No other persons shall have any rights
whatsoever hereunder. Notices to parties hereunder may be given to them at the
addresses and in the manner provided in the Section 10.6 of the Credit
Agreement. If any provision of this Amendment is held to be invalid or
unenforceable, the remaining provisions shall remain in effect without
impairment. All representations and warranties of the Borrower and the
Guarantors contained herein or made in connection herewith or in connection with
any other Loan Document shall survive the making of and shall not be waived by
the execution and delivery of this Amendment, any investigation by the
Administrative Agent, or any of the Banks or any other event or condition
whatsoever. All obligations of the Borrower and the Guarantors to make payments
to the Administrative Agent or the Banks shall survive the termination of all
obligations of the Borrower and the Guarantors hereunder and under the Loan
Documents, and shall not be affected by reason of an invalidity, illegality, or
irregularity of this Amendment or any Loan Document. The covenants and
agreements contained in or given pursuant to this Amendment or under any other
Loan Document shall continue in force until the payment in full and the
discharge of all Obligations of the Borrower and the Guarantors. Unless the
context of this Amendment otherwise clearly requires, references to the plural
include the singular, the singular the plural, and the part the whole and "or"
has the inclusive meaning represented by the phrase "and/or". The words
"hereof", "herein", "hereunder", and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
The section and other headings contained in this Agreement are for reference
purposes only and shall not control or affect the construction of this Agreement
or the interpretation thereof in any respect. Section and subsection references
are to this Amendment unless otherwise specified.
[SIGNATURE PAGES FOLLOW]
16
[SIGNATURE PAGE 1 OF 19 TO SECOND AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Amendment to be executed and delivered as
of the day and year first above written.
BORROWER:
BIG LOTS STORES, INC. (formerly CONSOLIDATED STORES
CORPORATION, an Ohio corporation)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior V.P., CFO
[SIGNATURE PAGE 2 OF 19 TO SECOND AMENDMENT]
GUARANTORS:
BIG LOTS, INC., an Ohio corporation (formerly
CONSOLIDATED STORES CORPORATION, a Delaware
corporation)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
MAC FRUGAL'S BARGAINS o CLOSE-OUTS, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
TRO, INC., an Illinois corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
CAPITAL RETAIL SYSTEMS, INC., an Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
PNS STORES, INC., a California corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
[SIGNATURE PAGE 3 OF 19 TO SECOND AMENDMENT]
WEST COAST LIQUIDATORS, INC., a California
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
▇.▇. ▇▇▇▇ COMPANY, an Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
CSC DISTRIBUTION, INC., an Alabama corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
CLOSEOUT DISTRIBUTION, INC., a Pennsylvania
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
INDUSTRIAL PRODUCTS OF NEW ENGLAND, INC., a
Maine corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
[SIGNATURE PAGE 4 OF 19 TO SECOND AMENDMENT]
TOOL AND SUPPLY COMPANY OF NEW ENGLAND, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
MIDWESTERN HOME PRODUCTS, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
MIDWESTERN HOME PRODUCTS COMPANY, LTD., an
Ohio corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
CONSOLIDATED PROPERTY HOLDINGS, INC., a
Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
GREAT BASIN LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
[SIGNATURE PAGE 5 OF 19 TO SECOND AMENDMENT]
SONORAN LLC, a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
SAHARA LLC, a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
▇▇▇▇▇▇ ▇▇, LLC (formerly DDC, LLC), a Delaware
limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Title: Senior V.P., CFO
[SIGNATURE PAGE 6 OF 19 TO SECOND AMENDMENT]
ADMINISTRATIVE AGENT:
NATIONAL CITY BANK, individually and as
Administrative Agent, Lead Arranger and
Managing Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
[SIGNATURE PAGE 7 OF 19 TO SECOND AMENDMENT]
SYNDICATION AGENT:
FLEET NATIONAL BANK, individually and as
Syndication Agent and a Managing Agent
By: /s/ ▇▇▇▇▇ ▇.▇. Alto
-----------------------------------------------
Name: ▇▇▇▇▇ E.C. Alto
Title: Director
[SIGNATURE PAGE 8 OF 19 TO SECOND AMENDMENT]
OTHER AGENTS:
FIRST UNION NATIONAL BANK, individually and as
Documentation Agent and a Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 9 OF 19 TO SECOND AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as a Documentation Agent and
a Managing Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 10 OF 19 TO SECOND AMENDMENT]
BANK OF AMERICA, N.A., individually and as a
Managing Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 11 OF 19 TO SECOND AMENDMENT]
THE BANK OF NEW YORK, individually and as a
Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 12 OF 19 TO SECOND AMENDMENT]
U.S. BANK NATIONAL ASSOCIATION (formerly FIRSTAR
BANK, N.A.), individually and as a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 13 OF 19 TO SECOND AMENDMENT]
OTHER BANKS:
GUARANTY BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 14 OF 19 TO SECOND AMENDMENT]
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 15 OF 19 TO SECOND AMENDMENT]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Loan Officer
[SIGNATURE PAGE 16 OF 19 TO SECOND AMENDMENT]
THE FIFTH THIRD BANK, CENTRAL OHIO
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President Commercial Lending
[SIGNATURE PAGE 17 OF 19 TO SECOND AMENDMENT]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. Buehlel
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. Buehlel
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 18 OF 19 TO SECOND AMENDMENT]
THE HUNTINGTON NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE 19 OF 19 TO SECOND AMENDMENT]
SOUTHTRUST BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President