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Exhibit 10.1
FIFTH AMENDMENT
This FIFTH AMENDMENT (this "AMENDMENT"), dated as of November 2, 2000,
among BRADLEES STORES, INC., a Massachusetts corporation (the "BORROWER"),
BRADLEES, INC., a Massachusetts corporation ("BI"), and each of the other
guarantors listed in Schedule 3.04 to the Credit Agreement (as defined below)
(together with BI, each a "GUARANTOR" and collectively, the "GUARANTORS"), and
the Lenders party to the Credit Agreement referred to below.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower, BI, the Guarantors, the financial institutions
party to the Credit Agreement as lenders (the "LENDERS"), BankBoston, N.A. (now
known as Fleet National Bank), as issuer of Letters of Credit, as administrative
agent (the "ADMINISTRATIVE AGENT"), and as agent for the Tranche B Lenders,
BankBoston Retail Finance, Inc. (now known as Fleet Retail Finance, Inc.), as
collateral agent (the "COLLATERAL AGENT"), the CIT Group/Business Credit, Inc.
and Congress Financial Corporation (New England), each as co-agents, and Back
Bay Capital Funding, LLC, as agent for the Tranche C Lenders (the "TRANCHE C
AGENT"), are parties to that certain Revolving Credit and Guaranty Agreement,
dated as of February 2, 1999, as amended by that certain First Amendment to
Credit Agreement, dated as of March 24, 1999, by that certain Second Amendment
to Credit Agreement, dated as of September 22, 1999, by that certain Third
Amendment to Credit Agreement, dated as of May 19, 2000, and by that certain
Fourth Amendment and Waiver, dated as of June 29, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT";
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Credit Agreement as amended hereby);
WHEREAS, the Borrower has informed the Lenders that it wishes to amend
Section 6.18 of the Credit Agreement to adjust the period during which the
minimum availability requirement set forth therein is measured; and
WHEREAS, subject to all of the terms and conditions set forth below
(including, without limitation, in Sections 2 and 3 hereof), the Required
Lenders and the Required Tranche C Lenders are willing to agree to such an
amendment as more particularly described below;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Section 6.18 of the Credit Agreement
is hereby amended by deleting the words "month of December in any" and replacing
them with the words "period from December 15 in any calendar year to January 15
in the immediately following".
2. AMENDMENT FEE. In partial consideration of the amendment contained
in Section 1 hereof, the Borrower agrees to pay to each Lender in immediately
available funds a
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nonrefundable amendment fee (collectively, the "AMENDMENT FEE") equal to (i) in
the case of each Tranche A Lender, 0.10% of such Tranche A Lender's Tranche A
Commitment, (ii) in the case of each Tranche B Lender, 0.15% of such Tranche B
Lender's Tranche B Commitment, and (iii) in the case of each Tranche C Lender,
0.15% of each Tranche C Lender's Tranche C Commitment.
3. CONDITIONS PRECEDENT. The amendment contained in Section 1 above is
subject to, and contingent upon, the prior satisfaction of each of the following
conditions:
(a) DULY EXECUTED COUNTERPARTS. The Administrative Agent and the
Tranche C Agent shall have received duly executed counterparts hereof
signed by the Credit Parties, the Required Lenders and the Required Tranche
C Lenders.
(b) AMENDMENT FEE. The Borrower shall have paid to the Administrative
Agent, in immediately available funds for the account of the Lenders, the
full amount of the Amendment Fee.
(c) PAYMENT OF EXPENSES. The Borrower shall have paid to the
Administrative Agent and the Tranche C Agent, in immediately available
funds, the full amount of all outstanding expenses (including, without
limitation, legal fees) reimbursable under this Amendment, the Credit
Agreement and the other Loan Documents for which invoices have been
submitted therefor.
(d) NO DEFAULT OR SUPER-DEFAULT. Both before and after giving effect to
this Amendment, no Event of Default or Event of Super-Default shall have
occurred and be continuing.
(e) ABSENCE OF DEFAULT UNDER MATERIAL AGREEMENTS. The Borrower and the
other Credit Parties shall not be in default under any material contract or
agreement to which any of them is a party both before and after giving
effect to this Amendment.
(f) REPRESENTATIONS AND WARRANTIES. All representations and warranties
of the Credit Parties contained herein shall be true and correct in all
material respects as of the date of this Amendment.
4. REPRESENTATIONS AND WARRANTIES. The Credit Parties hereby represent
and warrant to the Lenders as follows:
(a) As of the date hereof, the representations and warranties contained
in the Credit Agreement and the other Loan Documents are true and correct
in all material respects after giving effect to this Amendment as though
made on and as of such date, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case
such representations and warranties shall have been true and correct on and
as of such earlier date);
(b) after giving effect to this Amendment, no event has occurred and is
continuing which constitutes an Event of Default or an Event of
Super-Default;
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(c) each of the Credit Parties has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Amendment,
the transactions contemplated hereby and the Credit Agreement as amended
hereby, and has taken or caused to be taken all necessary actions to
authorize the execution, delivery and performance of this Amendment and the
performance of the transactions contemplated hereby;
(d) except for those that have been obtained, no consent of any other
Person and no action of or filing with any Governmental Authority is
required to authorize, or is otherwise required in connection with, the
execution, delivery and performance of this Amendment and the performance
of the transactions contemplated hereby;
(e) this Amendment has been duly executed and delivered on behalf of
each of the Credit Parties and constitutes the legal, valid and binding
obligation of each Credit Party party, enforceable in accordance with its
terms;
(f) the Credit Agreement, as amended hereby, and the other Loan
Documents, constitute the legal, valid and binding obligation of each
Credit Party thereto, enforceable in accordance with their respective
terms; and
(g) the execution, delivery and performance of this Amendment will not
violate any law, statute or regulation, or any order or decree of any
Governmental Authority, or conflict with, or result in the breach of, or
constitute a default under, any material contract by which any Credit Party
is bound or the articles of incorporation or bylaws of any Credit Party.
After giving effect to this Amendment, all of the Obligations will continue
to constitute "Lender Indebtedness" under and as defined in the
Subordination Agreement, dated as of February 2, 1999, relating to the
Trade Lien.
5. EFFECT OF AMENDMENT. Except as specifically provided herein,
this Amendment does not in any way affect or impair the terms, conditions and
other provisions of the Credit Agreement or the other Loan Documents, and all
such terms, conditions and other provisions of such documents shall remain in
full force and effect. The amendment contained herein is limited to the specific
provisions and circumstances described and shall not be deemed to (i) be a
waiver or amendment of any other term or condition of the Credit Agreement or
any other Loan Document or (ii) prejudice any rights not specifically addressed
herein which the Administrative Agent, the Collateral Agent, the Tranche C
Agent, any Lender or any other Secured Party may now have or may have in the
future under the Credit Agreement or any other Loan Document.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall be deemed to constitute one and the same instrument. Delivery of
an executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
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7 .SEVERABILITY. Any provision of this Amendment that is prohibited
or unenforceable in any jurisdiction for any reason shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. If this Amendment
is deemed invalid or unenforceable with respect to any Credit Party which is a
party hereto, this Amendment shall remain valid and enforceable with respect to
all other Credit Parties party hereto.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
9. HEADINGS. Section headings are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
10. EXPENSES. Whether or not the transactions hereby contemplated
shall be consummated, the Borrower and the other Credit Parties jointly and
severally agree to pay in immediately available funds all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Tranche B Agent and the Tranche C Agent (including but not limited to
the reasonable fees and disbursements of Latham & Watkins, special counsel for
the Administrative Agent, the Collateral Agent and the Tranche B Agent, and
Riemer & Braunstein LLP, special counsel to the Tranche C Agent) in connection
with the preparation, negotiation, execution, delivery and administration of
this Amendment. The fees and expenses payable hereunder are in addition to those
payable by the Borrower and the other Credit Parties under any other Loan
Document.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and the year first above written.
BRADLEES STORES, INC.,
as Borrower
By: /s/ David L. Schmitt
----------------------------
Name: David L. Schmitt
Title: Senior Vice President
GUARANTORS:
BRADLEES, INC.,
as a Guarantor
By: /s/ David L. Schmitt
------------------------
Name: David L. Schmitt
Title: Senior Vice President
NEW HORIZONS OF YONKERS, INC.,
as a Guarantor
By: /s/ David L. Schmitt
------------------------
Name: David L. Schmitt
Title: Senior Vice President
LENDERS:
FLEET NATIONAL BANK,
as a Lender
By: /s/ James J. Ward
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Name: James J. Ward
Title: Director
LASALLE BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Catherine D. Saccany
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Name: Catherine D. Saccany
Title: Vice President
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FOOTHILL INCOME TRUST II, L.P.
as a Lender by FIT II GP, LLC its General Partner
By: /s/ R. Michael Bohannon
------------------------
Name: R. Michael Bohannon
Title: Managing Member
FOOTHILL CAPITAL CORPORATION,
as a Lender
By: /s/ Stacy Yucht
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Name: Stacy Yucht
Title: Vice President
PPM COMMERCIAL FINANCE,
as a Lender
By: /s/ Keith Contole
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Name: Keith Contole
Title: AVP, Underwriting
ORIX BUSINESS CREDIT, INC.
As a Lender
By: /s/ Michael J. Cox
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Name: Michael J. Cox
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Christopher Hill
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Name: Christopher Hill
Title: Vice President
FINOVA CAPITAL CORPORATION,
as a Lender
By: /s/ Richard Sutton
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Name: Richard Sutton
Title: Vice President
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HELLER FINANCIAL, INC.,
as a Lender
By: /s/ Richard J. Holston
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Name: Richard J. Holston
Title: Assistant Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as a Lender
By: /s/ Paul Weybrecht
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Name: Paul Weybrecht
Title: Vice President
CONGRESS FINANCIAL CORPORATION (NEW ENGLAND),
as a Lender
By: /s/ Marc E. Swartz
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Name: Marc E. Swartz
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
as a Lender
By: /s/ Charles Chiodo
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Name: Charles Chiodo
Title: Authorized Signatory
BACK BAY CAPITAL FUNDING, LLC,
as a Lender
By: /s/ Michael L. Pizette
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Name: Michael L. Pizette
Title: Managing Director
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RECEIPT ACKNOWLEDGED:
FLEET NATIONAL BANK,
as Administrative Agent, as Tranche B Agent,
as Issuing Bank and as a Lender
By: /s/ James J. Ward
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Name: James J. Ward
Title: Director
FLEET RETAIL FINANCE, INC.,
as Collateral Agent
By: /s/ James J. Ward
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Name: James J. Ward
Title: Director
