Exhibit 4.04.2
CONSENT
CONSENT NO. 1 (this "Consent"), dated as of January 17, 1997, under the
Credit Agreement, dated as of October 8, 1996 (as amended, supplemented and
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used but not defined herein shall have the respective meanings specified in the
Credit Agreement), among Saks & Company (the "Company"), the several lenders
from time to time party thereto (the "Banks") and The Chase Manhattan Bank, as
administrative agent for the Banks (in such capacity, the "Administrative
Agent").
WHEREAS, the Company has requested the Agent and the Banks to consent to
matters regarding certain provisions of the Credit Agreement; and
WHEREAS, the Agent and the Banks party hereto are willing to agree to such
request on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises and mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Consent. Notwithstanding anything to the contrary in the Credit
Agreement, at any time prior to March 31, 1997, the Company or one or more of
its Subsidiaries shall be permitted to repurchase up to $100,000,000 principal
amount of the Saks Finance REMIC Trust Commercial Mortgage Pass-Through Class C
Certificates (the "Certificates") and in connection therewith pay any premiums
or other transaction costs related to such repurchase and amend the documents
relating to the Real Estate Financing to permit such repurchase; provided,
however, that at the time of such repurchase no Default or Event of Default
shall have occurred and be continuing. No Certificates held by the Company or
its Subsidiaries as a result of such repurchase shall be deemed to constitute
Indebtedness for any purpose under the Credit Agreement.
2. Representations and Warranties. To induce the Banks to enter into this
Consent, the Company hereby represents and warrants to the Banks as of the date
hereof that the representations and warranties made by the Company in the Credit
Agreement are true and correct in all material respects on and as of the date
hereof, before and after giving effect to this Consent, as if made on and as of
the date hereof unless expressly stated to relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
3. Counterparts. This Consent may be executed by the parties hereto in any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
4. Continuing Effect of Credit Agreement. Except for the consents and
modifications expressly set forth herein, the Credit Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its terms.
CONSENT NO. 1 TO THE SAKS & COMPANY CREDIT AGREEMENT
5. Effectiveness. This Consent shall become effective upon the execution
hereof by the Company, the Agent and Required Banks and receipt of same by the
Agent.
6. Governing Law. THIS CONSENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed and delivered in New York, New York by their proper and duly authorized
officers as of the date first above written.
SAKS & COMPANY
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By:
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Name:
Title:
CREDIT SUISSE, as a Bank
By:
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Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Bank
By:
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Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH, as
a Bank
By:
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Name:
Title:
CONSENT NO. 1 TO THE SAKS & COMPANY CREDIT AGREEMENT
2
ARAB BANKING CORPORATION, as a Bank
By:
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Name:
Title:
BANKERS TRUST COMPANY, as a Bank
By:
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Name:
Title:
MELLON BANK, as a Bank
By:
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Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Bank
By:
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Name:
Title:
THE BANK OF TOKYO -- MITSUBISHI
TRUST COMPANY, as a Bank
By:
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Name:
Title:
SOCIETE GENERALE, as a Bank
By:
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Name:
Title:
THE SUMITOMO TRUST AND BANKING
CO., LTD., NEW YORK BRANCH, as a Bank
By:
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Name:
Title:
CONSENT NO. 1 TO THE SAKS & COMPANY CREDIT AGREEMENT
3
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Bank
By:
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Name:
Title:
FIRST HAWAIIAN BANK, as a Bank
By:
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Name:
Title:
FLEET BANK, NATIONAL ASSOCIATION,
as a Bank
By:
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Name:
Title:
ALLIED IRISH BANKS, P.L.C., CAYMAN
ISLANDS BRANCH, as a Bank
By:
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Name:
Title:
NIPPON CREDIT BANK, as a Bank
By:
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Name:
Title:
POSTIPANKKI LTD., as a Bank
By:
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Name:
Title:
WELLS FARGO BANK, N.A., as a Bank
By:
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Name:
Title:
CONSENT NO. 1 TO THE SAKS & COMPANY CREDIT AGREEMENT
4
FIRST UNION NATIONAL BANK, as a Bank
By:
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Name:
Title:
SWISS BANK CORPORATION, NEW YORK
BRANCH, as a Bank
By:
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Name:
Title:
BANK OF SCOTLAND, as a Bank
By:
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Name:
Title:
CORESTATES BANK, as a Bank
By:
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Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Bank
By:
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Name:
Title:
GIROCREDIT BANK, AG der SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH, as a
Bank
By:
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Name:
Title:
CONSENT NO. 1 TO THE SAKS & COMPANY CREDIT AGREEMENT
5
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned corporations hereby:
(a) acknowledges and consents to the execution, delivery and performance
of (i) Consent No. 1, dated as of January 17, 1997, under the Credit Agreement,
dated as of October 8, 1996 (as amended, supplemented and otherwise modified
from time to time, the "Credit Agreement"), among Saks & Company (the
"Company"), the several lenders from time to time party thereto (the "Banks")
and The Chase Manhattan Bank, as administrative agent for the Banks (in such
capacity, the "Administrative Agent") and (ii) the transactions contemplated
thereby; and
(b) agrees that such execution, delivery and performance shall not in any
way affect such corporation's obligations under any Credit Document (as defined
in the Credit Agreement) to which such corporation is a party or, in the case of
the Company, the Trademark Security Agreement, dated as of July 2, 1990, as
amended, supplemented or otherwise modified, which obligations on the date
hereof remain absolute and unconditional and are not subject to any defense,
set-off or counterclaim (other than resulting from the gross negligence or
willful misconduct of the Administrative Agent or any Bank).
Dated: January __, 1997
SAKS & COMPANY
By:
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Name:
Title:
SAKS HOLDINGS, INC.
By:
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Name:
Title:
CAFE SFA-MINNEAPOLIS, INC.
THE RESTAURANT AT SAKS FIFTH
AVENUE CORPORATION
SAKS FIFTH AVENUE FOOD
CORPORATION
By:
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Name:
Title:
SAKS FIFTH AVENUE, INC.
SAKS FIFTH AVENUE, ATLANTA, INC.
SAKS, CHICAGO, INC.
SAKS FIFTH AVENUE- LOUISIANA, INC.
SAKS FIFTH AVENUE OF MISSOURI, INC.
SAKS FIFTH AVENUE OF OHIO, INC.
SAKS FIFTH AVENUE-STAMFORD, INC.
SAKS FIFTH AVENUE OF TEXAS, INC.
SAKS SPECIALTY STORES, INC.
SFA DATA PROCESSING, INC.
SFA FOLIO COLLECTIONS, INC.
SFA REAL ESTATE CO.
By:
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Name:
Title:
AGREED TO AND ACCEPTED
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
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Name:
Title:
2