Exhibit 10(A)
[EXECUTION COPY]
THIRD AMENDMENT
TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as of
April 30, 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 Wachovia Bank, National Association (formerly, 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, and that Second Amendment to Credit Agreement, dated as
of February 25, 2002 (as so amended, the "CREDIT AGREEMENT"), and desire to
amend a term 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 - Modification to Borrowing Base
Definition.
The definition of "BORROWING BASE" set forth at Section 1.1
[Certain Definitions] of the Credit Agreement is hereby amended at Clause (b) of
such definition to change "seventy percent (70%)" to "eighty percent (80%)".
No other change is made to the Credit Agreement.
3. 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 execution and delivery by the Loan Parties of this
Amendment have been duly authorized by all necessary corporate or company, as
the case may be, proceedings on the part of each Loan Party; on the date of
Borrower's execution hereof, there are no set-offs, claims, defenses,
counterclaims, causes of action, or deductions of any nature against any of the
Obligations; and
B. After giving effect to the amendment made herein: (i) no
Event of Default under and as defined in the Credit Agreement has occurred and
is continuing, and (ii) the representations and
warranties of each of Borrower and the other 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 on such date,
except to the extent that any such representation or warranty expressly relates
solely to a previous date..
4. Effectiveness of Amendment. This Amendment shall become effective as of
the date hereof upon receipt by the Administrative Agent from each of Borrower,
the Loan Parties, and the Required Banks of 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.. Upon the
effectiveness hereof, the Credit Agreement shall be amended hereby in accordance
with the terms hereof, and this Amendment and the Credit Agreement shall
hereafter be one agreement and any reference to the Credit Agreement in any
document, instrument, or agreement shall hereafter mean and include the Credit
Agreement as amended hereby. In the event of irreconcilable inconsistency
between the terms or provisions hereof and the terms or provisions of the Credit
Agreement, the terms and provisions hereof shall control. Except as specifically
amended by the provisions hereof, the Credit Agreement and all other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed by the parties hereto. Each Bank, by its execution hereof, hereby
consents to this Amendment pursuant to the Credit Agreement.
5. Joinder of Guarantors. Each of the Guarantors hereby joins in this
Amendment to evidence its consent hereto, and each Guarantor hereby reaffirms
its obligations set forth in the Credit Agreement, as hereby amended, and in
each Guaranty Agreement and each other Loan Document given by it in connection
therewith.
6. 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.
7. 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.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 19 TO THIRD 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/Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President, CFO
-------------------------------------
[SIGNATURE PAGE 2 OF 19 TO THIRD AMENDMENT]
GUARANTORS:
BIG LOTS, INC., an Ohio corporation (formerly
CONSOLIDATED STORES CORPORATION, a
Delaware corporation)
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
MAC FRUGAL'S BARGAINS - CLOSE-OUTS, INC.,
a Delaware corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
TRO, INC., an Illinois corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
CAPITAL RETAIL SYSTEMS, INC., an Ohio
corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
PNS STORES, INC., a California corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
[SIGNATURE PAGE 3 OF 19 TO THIRD AMENDMENT]
WEST COAST LIQUIDATORS, INC., a California
corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
X.X. XXXX COMPANY, an Ohio corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
CSC DISTRIBUTION, INC., an Alabama
corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
CLOSEOUT DISTRIBUTION, INC., a Pennsylvania
corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
INDUSTRIAL PRODUCTS OF NEW ENGLAND,
INC., a Maine corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
[SIGNATURE PAGE 4 OF 19 TO THIRD AMENDMENT]
TOOL AND SUPPLY COMPANY OF NEW
ENGLAND, INC., a Delaware corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
MIDWESTERN HOME PRODUCTS, INC., a
Delaware corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
MIDWESTERN HOME PRODUCTS COMPANY,
LTD., an Ohio corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
CONSOLIDATED PROPERTY HOLDINGS, INC., a
Nevada corporation
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
GREAT BASIN LLC, a Delaware limited liability
company
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
[SIGNATURE PAGE 5 OF 19 TO THIRD AMENDMENT]
SONORAN LLC, a Delaware limited liability
company
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
SAHARA LLC, a Delaware limited liability
company
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
XXXXXX XX, LLC (formerly DDC, LLC), a
Delaware limited liability company
By: /s/Xxxxxxx Xxxxxx
-----------------------------------------
Title: Sr. V.P., CFO
--------------------------------------
[SIGNATURE PAGE 6 OF 19 TO THIRD AMENDMENT]
ADMINISTRATIVE AGENT:
NATIONAL CITY BANK, individually and as
Administrative Agent, Lead Arranger and
Managing Agent
By: /s/ Xxxxx X Xxxxxxx
-----------------------------------------
Name: Xxxxx X Xxxxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
[SIGNATURE PAGE 7 OF 19 TO THIRD AMENDMENT]
SYNDICATION AGENT:
FLEET NATIONAL BANK, individually and as
Syndication Agent and a Managing Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Director
--------------------------------------
[SIGNATURE PAGE 8 OF 19 TO THIRD AMENDMENT]
OTHER AGENTS:
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly, FIRST UNION NATIONAL BANK),
individually and as Documentation Agent and a
Managing Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 9 OF 19 TO THIRD AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as a Documentation Agent and
a Managing Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 10 OF 19 TO THIRD AMENDMENT]
BANK OF AMERICA, N.A., individually and as a
Managing Agent
By: /s/ Xxx Xxxxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 11 OF 19 TO THIRD AMENDMENT]
THE BANK OF NEW YORK, individually and as a
Managing Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 12 OF 19 TO THIRD AMENDMENT]
U.S. BANK NATIONAL ASSOCIATION (formerly
FIRSTAR BANK, N.A.), individually and as a
Managing Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 13 OF 19 TO THIRD AMENDMENT]
OTHER BANKS:
GUARANTY BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 14 OF 19 TO THIRD AMENDMENT]
HIBERNIA NATIONAL BANK
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
---------------------------------------
Title: Portfolio Manager
--------------------------------------
[SIGNATURE PAGE 15 OF 19 TO THIRD AMENDMENT]
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------------
Title: Loan Officer
--------------------------------------
[SIGNATURE PAGE 16 OF 19 TO THIRD AMENDMENT]
THE FIFTH THIRD BANK, CENTRAL OHIO
By: /s/ Xxx Xxxxxx
----------------------------------------
Name: Xxx Xxxxxx
---------------------------------------
Title: Assistant Vice President
--------------------------------------
[SIGNATURE PAGE 17 OF 19 TO THIRD AMENDMENT]
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 18 OF 19 TO THIRD AMENDMENT]
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
[SIGNATURE PAGE 19 OF 19 TO THIRD AMENDMENT]
SOUTHTRUST BANK
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxx
---------------------------------------
Title: Group Vice President
--------------------------------------