Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
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This Amendment No. 1 to Credit Agreement (this "Amendment") is entered into
as of August 13, 2002 by and among BJ's Wholesale Club, Inc., a Delaware
corporation (the "Borrower"), Bank One, NA, a national banking association
having its principal office in Chicago, Illinois, as LC Issuer, as Swing Line
Lender and as Agent (the "Agent"), and the other financial institutions
signatory hereto (the "Lenders").
RECITALS
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A. The Borrower, the Agent and the Lenders are party to that certain
$200,000,000 Credit Agreement dated as of June 12, 2002 (the "Credit
Agreement"). Unless otherwise specified herein, capitalized terms used in this
Amendment shall have the meanings ascribed to them by the Credit Agreement.
B. The Borrower, the Agent and the Lenders wish to amend the Credit
Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as
defined below), the Credit Agreement shall be amended as follows:
Section 6.19.3 is amended by deleting the reference contained
therein to the dollar amount of "$565,000,000" and replacing it with a
reference to the dollar amount of "$515,000,000".
2. Representations and Warranties of the Borrower. The Borrower
represents and warrants that:
(a) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate
action and that this Amendment and the Credit Agreement, as amended
hereby, are legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective
terms, except as the enforcement thereof may be subject to (i) the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
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(b) Each of the representations and warranties contained in the
Credit Agreement is true and correct in all material respects on and
as of the date hereof as if made on the date hereof; and
(c) No Default or Unmatured Default has occurred and is
continuing.
3. Effective Date. Section 1 of this Amendment shall become effective
upon:
(a) the execution and delivery hereof by the Borrower, the Agent
and the Required Lenders (without respect to whether it has been
executed and delivered by all the Lenders); and
(b) the Borrower having delivered to the Agent all of the
following documents:
(i) A Reaffirmation of Guaranty in the form of Exhibit A
hereto executed by each of the Guarantors;
(ii) A certificate, executed by the Secretary or Assistant
Secretary of the Borrower, certifying (A) an attached copy of
resolutions of its Board of Directors authorizing or ratifying
the execution, delivery and performance by the Borrower of this
Amendment and (B) that there has been no amendments, supplements
or modifications to any of the Articles of Incorporation, Bylaws
or certificate of incumbency of the Borrower previously delivered
to the Lenders on June 12, 2002, or attached copies of such
amendments, supplements or modifications; and
(iii) Such other documents as the Agent may reasonably
request.
The date upon which such events have occurred is the "Effective Date".
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Agent or any Lender under the Credit Agreement or any Loan Document,
nor constitute a waiver of any provision of the Credit Agreement or
any Loan Document. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of similar import shall mean and be a
reference to the Credit Agreement as amended hereby.
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5. Costs and Expenses. The Borrower hereby affirms its obligations
under Section 9.6 of the Credit Agreement to reimburse the Agent for all
reasonable costs, internal charges and out-of-pocket expenses paid or
incurred by the Agent in connection with the preparation, negotiation,
execution and delivery of this Amendment, including but not limited to
attorneys' fees and time charges of attorneys for the Agent with respect
thereto.
6. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS, (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION
105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original
but all such counterparts shall constitute one and the same instrument.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties executed this Amendment as of the date and
year first above written.
BJ'S WHOLESALE CLUB, INC.
By: /s/ Frank Forward
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Name: Frank Forward
Title: Executive Vice President
Address: One Mercer Road
P.O. Box 9600
Natick, Massachusetts 01760
Attn: Frank Forward
Executive Vice President and
Chief Financial Officer
Telephone: (508) 651-6500
Telecopy: (508) 651-6623
with a copy to:
Address: One Mercer Road
P.O. Box 9600
Natick, Massachusetts 01760
Attn: General Counsel
Telephone: (508) 651-6670
Telecopy: (508) 651-6551
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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BANK ONE, NA,
Individually, as LC Issuer, as Swing Line
Lender and as Agent
By: /s/ Vincent R. Henchek
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Print Name: Vincent R. Henchek
Title: Director
Address: 1 Bank One Plaza
Chicago, Illinois 60670
Attn: John Runger
Telephone: (312) 732-7101
Telecopy: (312) 336-4380
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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FLEET NATIONAL BANK
By: /s/ Suzanne Chomiezewski
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Print Name: Suzanne Chomiezewski
Title: Vice President
Address: 100 Federal Street
MADE 10009A
Boston, MA 02110
Attn: Suzanne Chomiezewski
Telephone: (617) 434-3325
Telecopy: (617) 434-6685
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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CITIZENS BANK OF MASSACHUSETTS
By: /s/ Stephen F. Foley
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Print Name: Stephen F. Foley
Title: Vice President
Address: 28 State Street
Boston, MA 02109
Attn: Stephen F. Foley
Telephone: (617) 994-7029
Telecopy: (617) 263-0439
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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SUNTRUST BANK
By: /s/ Karen C. Copeland
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Print Name: Karen C. Copeland
Title: Vice President
Address: 711 Fifth Avenue 16th floor
New York, New York 10022
Attn: Kelly Gillespie
Telephone: (212) 583-2607
Telecopy: (212) 371-9386
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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WACHOVIA BANK, N.A.
By: /s/ Beth Rue
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Print Name: Beth Rue
Title: Vice President
Address: 1 South Penn Square
Philadelphia, PA 19107
Attn: PA 4830
Telephone: (267) 321-6619
Telecopy: (267) 321-6700
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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THE BANK OF NEW YORK
By: /s/ David C. Judge
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Print Name: David C. Judge
Title: Senior Vice President
Address:
Telephone: ( )
Telecopy: ( )
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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FIFTH THIRD BANK
By: /s/ Christine L. Wagner
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Print Name: Christine L. Wagner
Title: Assistant Vice President
Address: 38 Fountain Square, MD
109054
Cincinnati, OH 45202
Attn: Christine Wagner
Telephone: (513) 534-7348
Telecopy: (513) 534-5947
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Thomas L. Bayer
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Print Name: Thomas L. Bayer
Title: Vice President
Address: One U.S. Bank Plaza
St. Louis, MO 63101
Attn:
Telephone: (314) 418-3993
Telecopy: (314) 418-3859
Signature page to Amendment No. 1
to Credit Agreement for BJ's Wholesale Club, Inc.
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