Exhibit 10.1
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of June 26, 2023 by and among
BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, a Florida corporation (the “Lead Borrower”),
the Borrowers party hereto (together with the Lead Borrower, the “Borrowers”),
the Facility Guarantors party hereto (the “Facility Guarantors”, and together with the Borrowers, individually, a “Loan Party”, and collectively, the “Loan Parties”),
the Lenders party hereto, and
BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent;
in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
W I T N E S S E T H:
WHEREAS, the Loan Parties, the Lenders, the Administrative Agent and the Collateral Agent, among others, have entered into a certain Second Amended and Restated Credit Agreement dated as of September 2, 2011 (as amended, supplemented or otherwise modified from time to time prior to the effectiveness of this Amendment, the “Credit Agreement”); and
WHEREAS, the Lead Borrower has requested, among other things, an increase in the Letter of Credit Sublimit in an amount equal to $100,000,000, such that the Letter of Credit Sublimit after giving effect to this Amendment will be $250,000,000; and
WHEREAS, the Loan Parties, the Required Lenders, the Issuing Banks, the Administrative Agent and the Collateral Agent have agreed to amend the Credit Agreement as set forth herein.
NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:
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“Fifth Amendment” means that certain Fifth Amendment to Second Amended and Restated Credit Agreement dated as of June 26, 2023 by and among the Loan Parties party thereto, the Issuing Banks and the Agents.
“Fifth Amendment Effective Date” shall have the meaning set forth in the Fifth Amendment.
“Letter of Credit Sublimit” means, from and after the Fifth Amendment Effective Date, $250,000,000, as such amount may be increased or reduced in accordance with the provisions of this Agreement. From and after (i) April 1, 2024 until (but excluding) July 1, 2024, the Letter of Credit Sublimit will be automatically reduced to $237,500,000, (ii) July 1, 2024 until (but excluding) October 1, 2024, the Letter of Credit Sublimit will be automatically reduced to $225,000,000, (iii) October 1, 2024 until (but excluding) January 1, 2025, the Letter of Credit Sublimit will be automatically reduced to $212,500,000, and (iv) January 1, 2025 the Letter of Credit Sublimit will be automatically reduced to $200,000,000; provided that the dates in clauses (i) through (iii) above (but not, for the avoidance of doubt, clause (iv)) may be extended as agreed between the Administrative Agent and the Lead Borrower; provided further that in connection with any such extension of any of the dates in clauses (i) through (iii) above, the Administrative Agent shall provide prompt notice to the Lenders thereof. Without limiting the foregoing, any Issuing Bank may enter into an agreement with the Administrative Agent and the Lead Borrower regarding an individual sublimit with respect to Letters of Credit issued by such Issuing Bank.
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Without limiting the generality of the provisions of the last paragraph of Section 8.05 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender and Issuing Bank that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender or an Issuing Bank unless the Administrative Agent shall have received written notice from such Lender or Issuing Bank prior to the proposed Fifth Amendment Effective Date specifying its objection thereto.
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This Amendment and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on each of the Loan Parties to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of each of the Loan Parties enforceable against such in accordance with the terms thereof to the same extent as if a
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manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent and each of the Credit Parties of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Credit Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of the such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent has agreed to accept such Electronic Signature, the Administrative Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party without further verification and (b) upon the request of the Administrative Agent or any Credit Party, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
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[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the parties hereto as of the date first above written.
BURLINGTON COAT FACTORY WAREHOUSE CORPORATION,
as Lead Borrower
By: /s/ David Glick
Name: David Glick
Title: Group Senior Vice President of Investor Relations and Treasurer
THE ENTITIES LISTED ON SCHEDULE I HERETO, as Borrowers
By: /s/ David Glick
Name: David Glick
Title: Group Senior Vice President of Investor Relations and Treasurer
THE ENTITIES LISTED ON SCHEDULE II HERETO,
as Facility Guarantors
By: /s/ David Glick
Name: David Glick
Title: Group Senior Vice President of Investor Relations and Treasurer
[Burlington – Signature Page to Fifth Amendment]
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BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, a Lender and as an Issuing Bank
By: /s/ Nicholas Balta
Name: Nicholas Balta
Title: Vice President
[Burlington – Signature Page to Fifth Amendment]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender and an Issuing Bank
By: /s/ Jai Alexander
Name: Jai Alexander
Title: Director
[Burlington – Signature Page to Fifth Amendment]
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Truist Bank, as a Lender
By: /s/ Terry B. Snider
Name: Terry B. Snider
Title: Vice President
[Burlington – Signature Page to Fifth Amendment]
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U.S. BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ William Patton
Name: William Patton
Title: Senior Vice President
[Burlington – Signature Page to Fifth Amendment]
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JPMORGAN CHASE BANK, N.A., as a Lender and an Issuing Bank
By: /s/ James A. Knight
Name: James A. Knight
Title: Executive Director
[Burlington – Signature Page to Fifth Amendment]
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PNC BANK, NATIONAL ASSOCIATION, as a Lender and an Issuing Bank
By: /s/ Sari Garrick
Name: Sari Garrick
Title: Senior Vice President
[Burlington – Signature Page to Fifth Amendment]
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SCHEDULE I
Borrowers
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SCHEDULE II
Facility Guarantors
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