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Exhibit 10.2
FOURTH AMENDMENT (the "Fourth Amendment"), dated as of September 19,
1997, of a certain Credit Agreement dated as of October 26, 1994 (the
"Agreement"), as amended by a First Amendment dated October 1, 1995 and the
Second Amendment dated February 24, 1997 and the Third Amendment dated September
11, 1997, among BED BATH & BEYOND, INC. (the "Company"), BED-N-BATH STORES, INC.
("BNBS"), BBBL, INC. ("BBBL") AND BBBY MANAGEMENT CORPORATION ("BBBY"; BNBS,
BBBL AND BBBY being together the "Guarantors" and individually each a
"Guarantor", and the Guarantors together with the Company being the "Credit
Parties") and THE CHASE MANHATTAN BANK ("Chase" as a "Bank" and as agent for the
Banks (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Credit Parties, the Banks and the Agent are parties to the
Agreement; and
WHEREAS, the Credit Parties have requested certain modifications to the
Agreement, and Chase is agreeable to such request;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto hereby agree as follows:
Section 9.9 is hereby amended in its entirety so that such Section, as
so amended, shall read as follows: "Limitation on Dividends. Declare or
pay any dividend (other than dividends payable solely in common stock
of the Company) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of any Credit Party or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations
of any Company or any Subsidiary (all of the foregoing is here and
after referred to as a "Dividend") except that the Company may declare
or pay cash Dividend(s) on its common stock only out of each year's
earnings, provided that after giving effect to any such declaration or
payment, as the case may be, no Default or Event of Default shall have
occurred and be continuing and that the cumulative amount of such
Dividends declared in any fiscal year shall not exceed 50% of
Consolidated Net Income for such fiscal year; provided further that any
credit party (other than the Company) may declare or pay a Dividend to
the Company."
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Representations and Warranties. To induce Chase to enter into this Fourth
Amendment, each of the Credit Parties hereby represents and warrants that:
(a) Such Credit Party has the power, authority and legal right
to make and deliver this Fourth Amendment and to perform its
obligations under the Agreement, as amended by this Fourth Amendment,
without any notice, consent, approval or authorization not already
obtained, and such Credit Party has taken all necessary action to
authorize the same.
(b) The making and delivery of this Fourth Amendment and the
performance of the Agreement, as amended by this Fourth Amendment, do
not violate any provision of law or any regulation or of the charter or
by-laws of such Credit Party or result in the breach of or constitute a
default under or require any consent under any indenture or other
agreement or instrument to which such Credit Party is a party or by
which such Credit Party or any of its property may be bound or
affected. The Agreement, as amended by this Fourth Amendment,
constitute a legal, valid and binding obligation of such Credit Party,
enforceable against it in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally.
(c) The representations and warranties contained in Section 6
of the Agreement are true and correct on and as of the date of this
Fourth Amendment and after giving effect thereto.
(d) No Default or Event of Default has occurred and is
continuing under the Agreement as of the date of this Fourth Amendment
and after giving effect thereto.
4. Effective Date. This Fourth Amendment shall become effective
as of September 19, 1997 when Chase shall have received counterparts of
this Fourth Amendment, duly executed by the respective parties thereto.
5. Counterparts. This Fourth Amendment may be signed in any
number of counterparts, each of which shall be an original and all of which
taken together shall constitute a single instrument with the same effect as if
the signatures thereto and hereto were upon the same instrument.
6. Full Force and Effect. Except as expressly modified by this
Fourth Amendment, all of the terms and provisions of the Agreement shall
continue in full force and effect, and all parties hereto shall be entitled to
the benefits thereof.
7. Governing Law. This Fourth Amendment shall be governed by and
construed in accordance with the internal laws (and not the law of conflicts) of
the State of New Jersey.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date set forth above.
BED BATH & BEYOND, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Chairman and Co-Chief
Executive Officer
BED-N-BATH STORES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Title: President
BBBL, INC.
By: /s/ Xxxxxx Xxxxx
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Title: President
BBBY MANAGEMENT CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Title: President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Vice-President
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