EXHIBIT 10.9.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of March 14, 2002
(this "Amendment"), is among ▇▇▇▇-▇▇▇▇▇ STORES, INC. (the "Borrower"), the
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Lenders (as defined below) signatories hereto and FIRST UNION NATIONAL BANK, in
its capacity as Administrative Agent for the Lenders (such capitalized term and
all other capitalized terms not defined herein to have the meanings set forth in
the Existing Credit Agreement (as defined below)).
W I T N E S S E T H:
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WHEREAS, the Borrower, certain financial institutions and other Persons
(such capitalized term and other capitalized terms used in these recitals to
have the meanings set forth or defined by reference in Part I below) from time
to time parties thereto (collectively, the "Lenders"), the Administrative Agent,
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇ Incorporated ("ML &
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Co."), as the Syndication Agent, ▇▇▇▇▇▇ Trust and Savings Bank, Fleet National
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Bank and Credit Lyonnais New York Branch, as the Documentation Agents, and First
Union Securities, Inc. (doing business as Wachovia Securities) and ML & Co., as
joint lead Arrangers, are parties to the Credit Agreement, dated as of March 29,
2001 (the "Existing Credit Agreement");
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WHEREAS, the Borrower has requested that the Lenders amend the Existing
Credit Agreement as set forth below; and
WHEREAS, the requisite Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Existing Credit Agreement in
certain respects (the Existing Credit Agreement, as so amended or otherwise
modified by this Amendment, being referred to as the "Credit Agreement");
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto hereby agree as follows:
part I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
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underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
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"Amendment" is defined in the preamble.
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"Borrower" is defined in the preamble.
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"Credit Agreement" is defined in the third recital.
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"Existing Credit Agreement" is defined in the first recital.
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"First Amendment Effective Date" is defined in Subpart 3.1.
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"Lenders" is defined in the first recital.
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"ML & Co." is defined in the first recital.
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SUBPART 1.2. Other Definitions. Terms for which meanings are provided
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in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part; except as so amended or otherwise modified by this Amendment,
the Existing Credit Agreement and the Loan Documents shall continue in full
force and effect in accordance with their terms.
SUBPART 2.1. Amendment to Article I. Article I of the Existing Credit
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Agreement is hereby amended in accordance with Subparts 2.1.1 through 2.1.3.
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SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions therein in the appropriate
alphabetical order:
"First Amendment" means the First Amendment, dated as of March 14,
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2002, to this Agreement among the Borrower, the Administrative Agent and the
Lenders parties thereto.
"First Amendment Effective Date" is defined in Subpart 3.1 of the First
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Amendment.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "Letter of Credit Commitment
Amount" appearing therein by deleting the reference to "$50,000,000" appearing
therein and inserting a reference to "$60,000,000" in replacement therefor.
SUBPART 2.1.3. Section 1.1 of the Existing Credit Agreement is hereby
further amended by amending the definition of "Stated Maturity Date" appearing
therein by deleting the reference to "March 28, 2002" appearing in clause (c)
therein and inserting a reference to "March 27, 2003" in replacement therefor.
SUBPART 2.2. Amendment to Article II. Article II of the Existing Credit
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Agreement is hereby amended in accordance with Subpart 2.2.1 and Subpart 2.2.2.
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SUBPART 2.2.1. Clause (a) of Section 2.1.2 of the Existing Credit
Agreement is hereby amended by (a) inserting the words "import letters of credit
or" immediately prior to the reference to "standby letters of credit" in the
first line of subclause (i) therein and (b) deleting the word "standby" in
subclause (ii) therein.
SUBPART 2.2.2. Section 2.6 of the Existing Credit Agreement is hereby
amended by deleting the word "standby" in the fifth line thereof.
SUBPART 2.3. Amendment to Article III. Article III of the Existing
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Credit Agreement is hereby amended in accordance with Subpart 2.3.1.
SUBPART 2.3.1. Section 3.3.3 of the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:SUBPART 2.
"SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
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Administrative Agent, for the pro rata account of each Five Year Revolving Loan
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Lender, a Letter of Credit fee (a) with respect to import Letters of Credit, in
an amount equal to 50% of the then effective Applicable Margin for Five Year
Revolving Loans maintained as LIBO Rate Loans, multiplied by the Average Stated
Amount for all import Letters of Credit, and (b) with respect to standby Letters
of Credit, in an amount equal to the then effective Applicable Margin for Five
Year Revolving Loans maintained as LIBO Rate Loans, multiplied by the Average
Stated Amount for all standby Letters of Credit, such fees being payable
quarterly in arrears on each Quarterly Payment Date following the date of
issuance of each such Letter of Credit and on the Five Year Revolving Loan
Commitment Termination Date. The Borrower further agrees to pay to the
applicable Issuer quarterly in arrears on each Quarterly Payment Date following
the date of issuance of each standby Letter of Credit and on the Five Year
Revolving Loan Commitment Termination Date, a fronting fee in an amount equal to
0.25% per annum multiplied by the Average Stated Amount for all outstanding
standby Letters of Credit (such fee, the "Fronting Fee"), together with the
Issuer's customary administrative, amendment, drawing, transfer and other fees
incurred with respect to such Letters of Credit.
SUBPART 2.4. Amendment to Article X. Article X of the Existing Credit
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Agreement is hereby amended in accordance with Subpart 2.4.1.
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SUBPART 2.4.1. Section 10.9 of the Existing Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"SECTION 10.9. Governing Law; Entire Agreement. EACH LOAN DOCUMENT
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(OTHER THAN THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK). EACH STANDBY LETTER OF CREDIT SHALL
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BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED
IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE
INTERNATIONAL STANDBY PRACTICES (ISP98--INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NUMBER 590 (THE "ISP RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE
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ISP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH IMPORT LETTER OF
CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (UCP500--INTERNATIONAL
CHAMBER OF COMMERCE PUBLICATION NUMBER 500 (THE "UCP RULES")) AND, AS TO MATTERS
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NOT GOVERNED BY THE UCP RULES, THE INTERNAL LAWS OF THE STATE OF NEW YORK. The
Loan Documents constitute the entire understanding among the parties hereto with
respect to the subject matter thereof and supersede any prior agreements,
written or oral, with respect thereto."
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effectiveness. This Amendment and the amendments contained
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herein shall become effective on the date (the "First Amendment Effective Date")
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when each of the conditions set forth in this Part shall have been fulfilled to
the satisfaction of the Administrative Agent.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent
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shall have received counterparts of this Amendment, duly executed and delivered
on behalf of each Borrower, the Administrative Agent, the Required Lenders, each
364 Day Revolving Loan Lender and each Five Year Revolving Loan Lender.
SUBPART 3.1.2. Extension Fee. The Administrative Agent shall have
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received, for the account of each 364 Day Revolving Loan Lender approving this
Amendment, an extension fee in an amount equal to .05% of each such Lender's
Percentage of the aggregate 364 Day Revolving Loan Commitment Amount.
SUBPART 3.1.3. Opinion of Counsel. The Administrative Agent shall have
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received an opinion, dated the date of this Amendment and addressed to the
Administrative Agent and all Lenders, from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special
counsel to the Obligors, in form and substance satisfactory to the
Administrative Agent.
SUBPART 3.1.4. Resolutions. The Administrative Agent shall have
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received resolutions of the Board of Directors of the Borrower duly ratifying
the execution, delivery and performance of this Amendment, duly certified by an
Authorized Officer as being in full force and effect without amendment or
modification, all in form and substance reasonably satisfactory to the
Administrative Agent.
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SUBPART 3.1.5. Legal Details, etc. All documents executed or submitted
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pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
PART IV
MISCELLANEOUS; REPRESENTATIONS AND COVENANT
SUBPART 4.1. Continuing Effectiveness, etc. As amended hereby, the
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Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. After the First Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the "Credit
Agreement" shall refer to the Existing Credit Agreement, after giving effect to
this Amendment, and this Amendment shall be a Loan Document for all purposes.
The Borrower hereby confirms its obligations under Section 10.3 of the Credit
Agreement to pay all fees and expenses of the Administrative Agent in connection
with this Amendment and other ongoing administration of the Credit Agreement
since the last invoice it received, including reasonable fees and other charges
of Shearman & Sterling in connection therewith.
SUBPART 4.2. Counterparts. This Amendment may be executed in any number
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of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
SUBPART 4.3. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE
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UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 4.4. Successors and Assigns. This Amendment shall be binding
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upon the Borrower, the Lenders and the Agents and their respective successors
and assigns, and shall inure to their successors and assigns.
SUBPART 4.5. Representations and Warranties. In order to induce the
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Lenders to execute and deliver this Amendment, the Borrower represents and
warrant to the Agents, the Lenders and the Issuers that, after giving effect to
the terms of this Amendment, the following statements are true and correct: (a)
the representations and warranties set forth in Article VI of the Existing
Credit Agreement and in the other Loan Documents are true and correct on the
Amendment Effective Date as if made on the Amendment Effective Date and after
giving effect to the First Amendment (unless stated to relate solely to an
earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date); and (b) no Default
has occurred and been continuing.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective authorized officers as of the day and
year first above written.
▇▇▇▇-▇▇▇▇▇ STORES, INC.
By: /S/ ▇.▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President
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LENDERS:
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FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Senior Vice President
Addison CDO, Limited (Acct 1279)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
[AMSOUTH BANK, as a Lender]
By: /S/ ▇▇▇▇▇▇▇ del ▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇ del Rocco
Antares Capital Corporation
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
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Athena CDO, Limited (Acct 1277)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
CAPTIVA III Finance Ltd. (Acct. 275),
as advised by Pacific Investment Management
Company LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
CAPTIVA III Finance Ltd. (Acct. 1275),
as advised by Pacific Investment Management
Company LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
Chevy Chase Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CIBC Inc.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Director
CIBC World Markets Corp., as Agent
LENDER: COBANK, ACB
By: /S/ S. ▇▇▇▇▇▇▇ ▇▇▇▇
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S. ▇▇▇▇▇▇▇ ▇▇▇▇
Vice President
COMMERCEBANK N.A. *
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
*As lender in the five year revolving loans
and the term loan
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COMPASS BANK
By: /S/ K. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
K. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH
By: /S/ ▇▇▇▇▇▇ ▇▇▇
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Title: ▇▇▇▇▇▇ ▇▇▇
SENIOR VICE PRESIDENT
DELANO Company (Acct 274)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio Manager for
DENALI CAPITAL CLO I, LTD.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Credit Officer
EAST WEST BANK
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ *
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Title: Senior Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇
*With respect to Five Year Revolving Loan and
Term Loan only
FIRSTAR BANK, N.A.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
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Flagship CLO-2001-1
By: Flagship Capital Management, Inc.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Fleet National Bank *
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Director
* approval is for the amendments to the
five-year facility. We have not approved
the extension of the 364-Day facility
[LENDER] GMAC BUSINESS CREDIT , LLC
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Assistant Vice President
▇▇▇▇▇ ▇▇▇▇▇▇
GMAC Commercial Credit LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇ TRUST & SAVINGS BANK
By: /S/ ▇▇▇▇▇ Place
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Title: ▇ ▇
▇▇▇▇▇ Place
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral Manager
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as trustee of the
Antares Funding Trust created under the Trust
Agreement dated as of November 30, 1999
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trust Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇▇▇▇▇, VICE PRESIDENT
Nova CDO 2001, Ltd.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
RIVIERA FUNDING LLC
By: /S/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Asst. Vice President
ROYALTON COMPANY (Acct 280)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
SEQUILS-MAGNUM, LTD. (#1280)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Executive Vice President
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STANWICH LOAN FUNDING LLC
By: /S/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Asst. Vice President
SunTrust Bank
By: /S/ ▇ ▇ ▇▇▇▇▇▇▇▇
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C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
[LENDER]
By: /S/ ▇▇▇▇ ▇▇▇▇ Long
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Title:
A.V.P
Yung ▇▇▇▇ ▇▇▇▇
Taipei Bank, New York Agency
TEXTRON FINANCIAL CORPORATION
By: /S/ Nato Hayashrok
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Title: Director
Nato Hayashrok
[LENDER] TORONTO DONINICAN (NEW YORK), INC.
By: /S/ ▇ ▇▇▇▇▇▇
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Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VICE PRESIDENT
Transamerica Business Capital Corporation
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President