Exhibit 10.1
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
PAMIDA, INC.
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SEAWAY IMPORTING COMPANY
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September 16, 1996
Congress Financial Corporation (Southwest)
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BankAmerica Business Credit, Inc.
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Gentlemen:
Congress Financial Corporation (Southwest), a Texas corporation in its
individual capacity ("Congress"), BankAmerica Business Credit, Inc., formerly
known as BA Business Credit Inc., a Delaware corporation ("BABC," together
with Congress each individually a "Lender" and collectively, "Lenders"),
Pamida, Inc., a Delaware corporation ("Pamida"), Seaway Importing Company, a
Nebraska corporation ("Seaway," together with Pamida, collectively,
"Borrowers") and Congress Financial Corporation (Southwest), a Texas
corporation, as Agent for Lenders (in such capacity, "Agent") have entered
into certain financing arrangements pursuant to the Loan and Security
Agreement, dated March 30, 1993, by and among Agent, Lenders and Borrowers (as
amended by Amendment No. 1 to Loan and Security Agreement dated as of January
23, 1995 and Amendment No. 2 to Loan and Security Agreement dated as of
January 28, 1996 and as amended hereby, the "Loan Agreement", and together
with all agreements, documents and instruments at any time executed and/or
delivered in connection therewith or related thereto, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, collectively, the "Financing Agreements").
Borrowers have requested that the "Maximum Credit" provided for in the
Financing Agreements be temporarily increased and that certain other
provisions of the Financing Agreements be amended, and Agent and Lenders are
willing to temporarily increase the Maximum Credit and amend certain other
provisions of the Financing Agreements, subject to the terms and conditions
contained herein. By this Amendment, Agent, Lenders and Borrowers desire and
intend to evidence such amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
1. Definitions.
(a) All references to the term "Maximum Credit" in any of the Financing
Agreements shall be deemed, and each such reference is hereby amended, to mean
(i) from September 1, 1996 through and including December 10, 1996, the amount
of $80,000,000 and (ii) Thereafter, the amount of $70,000,000.
(b) All references to the term "Renewal Date" in any of the Financing
Agreements shall be deemed, and each such reference is hereby amended, to mean
March 31, 1999.
(c) All capitalized terms used herein shall have the meanings assigned
hereto in the other Financing Agreements, unless otherwise defined herein.
2. Revolving Loans; Advance Rate. Section 2.1(a) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefore:
(a) Subject to, and upon the terms and conditions contained herein and in
the other Financing Agreements, at the request of Borrowers, each of Lenders
severally, but not jointly, agrees to lend to Borrowers and authorizes and
appoints Agent to make Loans to Borrowers, for the account of and as Agent for
Lenders, in such amounts from time to time as Agent shall determine, in its
discretion, at Borrowers' request during the periods indicated below of up to
the percent of the value of Eligible Inventory of Borrowers indicated for such
period (or such greater or lesser percentage thereof as Agent may determine
from time to time):
Period Percent
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(i) from September 1, 1996 through 50%
and including December 10, 1996
(ii) thereafter, in any year:
(A) from March 1 through and 45%
including April 30
(B) from October 1 through and 45%
including November 30
(C) at all other times 40%
3. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrowers to Agent and Lenders pursuant to the Financing Agreements, Borrowers
hereby represent, warrant and covenant with and to Agent and Lenders as
follows (which representations, warranties and covenant are continuing and
shall survive the execution and delivery hereof and shall be incorporated into
and made a part of the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment (after giving
effect to the amendments to the Financing Agreements made by this Amendment).
(b) This Amendment and the other amendment agreements delivered in
connection herewith, have been duly authorized, executed and delivered by each
of Borrowers and are in full force and effect as of the date hereof, and the
agreements and obligations of each of Borrowers contained herein and therein
constitute legal, valid and binding obligations of each of Borrowers
enforceable against each of Borrowers in accordance with their respective
terms.
(c) All required consents or approvals of any persons other than Lenders
and Agent to the authorization, execution and delivery of this Amendment and
the other amendment agreements delivered in connection herewith have been
obtained by each of Borrowers and Guarantors, and the authorization, execution
and delivery hereof does not violate or breach any provision of or constitute
a default under any material indenture, mortgage, deed of trust, agreement or
instrument to which any of Borrowers or Guarantors is or may be bound,
including, without limitation, the Note Indenture.
4. Conditions Precedent. The effectiveness of the amendments contained
herein shall be subject to the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent on behalf of Lenders:
(a) Agent shall have received, in form and substance satisfactory to Agent,
an executed original of this Amendment, duly authorized, executed and
delivered by each of Borrowers and Guarantors;
(b) Agent shall have received, in form and substance satisfactory to Agent,
an executed original of Amendment No. 3 to Deed of Trust, Security Agreement
and Assignment of Leases and Rents by Pamida in favor of Old Republic National
Title Insurance Company, as trustee, for the benefit of Agent and Lenders,
duly authorized, executed and delivered by the parties thereto;
(c) Agent shall have received, in form and substance satisfactory to Agent,
an executed original of Amendment No. 3 to Leasehold Deed of Trust, Security
Agreement and Assignment of Leases and Rents by Pamida in favor of Old
Republic National Title Insurance Company, as trustee, for the benefit of
Agent and Lenders, duly authorized, executed and delivered by the parties
thereto;
(d) Agent shall have received, in form and substance satisfactory to Agent,
an executed original of Amendment No. 3 to Co-Lending and Agency Agreement,
duly authorized, executed and delivered by each of Agent and Lenders;
(e) Agent shall have received, in form and substance satisfactory to Agent,
a secretary's certificates for each of Borrowers and Guarantors with respect
to directors' resolutions, incumbency and other matters as Agent may require,
and
(f) No Event of Default shall have occurred and be continuing and no event
shall have occurred or condition be existing and continuing which, with notice
or passage of time or both, would constitute an Event of Default.
5. Amendment Fee. Borrowers shall pay to Agent for the account of Lenders an
amendment fee in an amount equal to $50,000, which amount shall be payable
simultaneously with the execution hereof, which fee is fully earned as of the
date hereof, shall be in addition to all other amounts payable under the
Financing Agreements, shall constitute part of the Obligations and may, at
Agent's option, be charged directly to any account(s) of Borrowers maintained
with Agent or Lenders.
6. Effect of this Amendment. Except as modified pursuant hereto, no other
changes or modifications to the Financing Agreements are intended or implied
and in all other respects the Financing Agreements are hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective
date hereof. To the extent of any conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment
shall control.
7. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
8. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in
accordance with the laws of the State of New York.
9. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
10. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one
and the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed
by each of the parties hereto.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Agent and Lenders,
shall become a binding agreement among Borrowers, Agent and Lenders.
Very truly yours,
PAMIDA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P. & CFO
SEAWAY IMPORTING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P. & CFO
AGREED:
CONGRESS FINANCIAL CORPORATION
(SOUTHWEST), individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANKAMERICA BUSINESS CREDIT, INC., formerly
known as BA Business Credit Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ACKNOWLEDGED AND AGREED:
PAMIDA HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P. & CFO
PAMIDA TRANSPORTATION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. V.P. & CFO
Exhibit 10.2
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement is made and entered into on
the 29th day of August, 1996, among PAMIDA HOLDINGS CORPORATION ("Holdings"),
a Delaware corporation, PAMIDA, INC. ("Pamida"), a Delaware corporation, and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive"). Holdings and Pamida collectively are
referred to in this Amendment No. 1 as the "Companies".
WHEREAS, the Companies and the Executive are parties to an Employment
Agreement dated September 22, 1995 (the "Employment Agreement"); and
WHEREAS, the Companies and the Executive now desire to amend the
Employment Agreement as more particularly set forth below;
NOW, THEREFORE, the Companies and the Executive agree as follows:
1. Pursuant to Paragraph 6 of the Employment Agreement, the Companies and the
Executive agree that the Executive's incentive bonus program for the fiscal
year of Holdings ending February 2, 1997 ("Fiscal 1997") shall be the
following:
(a) If the consolidated earnings of Holdings and its subsidiaries (on a
first-in, first-out basis with respect to merchandise inventories)
before interest, taxes, depreciation, and amortization for Fiscal 1997
(the "EBITDA") is less than $43,000,000, then the Executive shall not
be entitled to any incentive bonus for Fiscal 1997.
(b) If the EBITDA equals or exceeds $43,000,000, then the Executive's
incentive bonus for Fiscal 1997 shall be determined as a percentage of
the Executive's base salary from the matrix attached to this Amendment
No. 1 taking into account (i) the EBITDA and (ii) the percentage
increase or decrease in the comparable store sales of Pamida for Fiscal
1997 compared with the fiscal year ended January 28, 1996. Comparable
store sales percentage increases or decreases shall be determined in
accordance with Pamida's historical practices.
(c) For purposes of such matrix, comparable store sales percentage
increases of more than 5% shall be treated as increases of 5%,
comparable store sales decreases of more than 2% shall be treated as
decreases of 2%, and EBITDA of more than $49,000,000 shall be treated
as EBITDA of $49,000,000.
(d) For purposes of applying such matrix, the Executive's base salary shall
be deemed to be $500,000.
(e) The maximum incentive bonus that the Executive shall have the
opportunity to earn for Fiscal 1997 is $500,000.
(f) EBITDA amounts between whole millions of dollars and comparable store
sales percentage increases or decreases between whole percentages shall
be interpolated on a straight-line basis for purposes of applying such
matrix.
(g) Solely by way of illustration of the application of such matrix, if the
EBITDA is $44,250,000 and the comparable store sales percentage
increase for Fiscal 1997 is 2.6%, then the Executive's incentive bonus
for Fiscal 1997 would be $246,250.
The Executive's incentive bonus for Fiscal 1997 (if any) shall be paid to the
Executive as soon as practicable after Holdings has received the final audit
report with respect to Fiscal 1997 from its independent accountants.
2. The provisions of this Amendment No. 1 are intended to satisfy the
requirements of Paragraph 6 of the Employment Agreement for the fiscal year of
Holdings ending in 1997.
3. This Amendment No. 1 shall be effective as of January 29, 1996.
4. As hereby amended, the Employment Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the Companies and the Executive have executed this
Amendment No. 1 to Employment Agreement on the day and year first above
written.
PAMIDA HOLDINGS CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive
Vice President
PAMIDA, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive
Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Pamida, Inc.
Bonus a % of Pay
Comp store sales increase
EBITDA| -2.0%| -1.0%| 0.0%| 1.0%| 2.0%| 3.0%| 4.0%| 5.0%
-------|-------|-------|-------|-------|-------|-------|-------|-------
<43| 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0
43| 20.0%| 25.0%| 30.0%| 35.0%| 40.0%| 45.0%| 50.0%| 55.0%
44| 25.0%| 30.0%| 35.0%| 40.0%| 45.0%| 50.0%| 55.0%| 60.0%
45| 30.0%| 35.0%| 40.0%| 45.0%| 50.0%| 55.0%| 60.0%| 65.0%
46| 37.5%| 42.5%| 47.5%| 52.5%| 57.5%| 62.5%| 67.5%| 72.5%
47| 45.0%| 50.0%| 55.0%| 60.0%| 65.0%| 70.0%| 75.0%| 80.0%
48| 55.0%| 60.0%| 65.0%| 70.0%| 75.0%| 80.0%| 85.0%| 90.0%
49| 65.0%| 70.0%| 75.0%| 80.0%| 85.0%| 90.0%| 95.0%| 100.0%