1
EXHIBIT 10.26
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
is made and dated as of February 21, 1995 (the "SECOND AMENDMENT") among MAC
FRUGAL'S BARGAINS - CLOSE-OUTS INC., a Delaware corporation, WEST COAST
LIQUIDATORS, INC., a California corporation, PNS STORES, INC., a California
corporation (individually a "BORROWER" and collectively the "BORROWERS"), the
lenders named on the signature pages hereof (the "LENDERS"), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BOFA"), as administrative agent for the
Lenders and the Issuing Banks (in such capacity, the "ADMINISTRATIVE AGENT") and
BANK OF AMERICA ILLINOIS (formerly named Continental Bank, N.A.), as co-agent
(in such capacity, the "CO-AGENT"), and amends that certain Amended and Restated
Credit Agreement dated as of October 5, 1993, among the Borrowers, the Lenders,
the Administrative Agent and the CoAgent, as amended by a First Amendment to
Amended and Restated Credit Agreement dated as of August 10, 1994 (as so
amended, the "CREDIT AGREEMENT").
RECITAL
WHEREAS, the Borrowers have requested that the Lenders, the
Administrative Agent and the Co-Agent amend certain provisions of the Credit
Agreement, and the Lenders, Administrative Agent and the Co-Agent are willing to
do so on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
1. Terms. All terms used herein shall have the same
meanings as in the Credit Agreement unless otherwise defined herein. All
references to the Credit Agreement shall mean the Credit Agreement as hereby
amended.
2. Amendments to Credit Agreement.
2.1 Section 2.1A of the Credit Agreement shall be amended by
deleting "following the date of the First Amendment" in the last paragraph
thereof and inserting "commencing 9/30/94" in lieu thereof.
- 1 -
2
2.2 Clause (ii) of the proviso to Section 6.5 of the Credit
Agreement is amended by deleting "$60,000,000" and inserting "$70,000,000" in
lieu thereof.
3. Representations and Warranties. The Borrowers represent and
warrant to Lenders, Administrative Agent and Co-Agent that, on and as of the
date hereof, and after giving effect to this Second Amendment:
3.1 Authorization. The execution, delivery and performance of
this Second Amendment have been duly authorized by all necessary corporate
action by the Borrowers and this Second Amendment has been duly executed and
delivered by the Borrowers.
3.2 Binding Obligation. This Second Amendment is the legal,
valid and binding obligation of Borrowers, enforceable against the Borrowers in
accordance with its terms.
3.3 No Legal Obstacle to Credit Agreement. The execution,
delivery and performance of this Second Amendment will not (a) contravene the
terms of the Borrowers' certificate of incorporation, by-laws or other
organization document; (b) conflict with or result in any breach or
contravention of the provisions of any contract to which the Borrowers are a
party, or the violation of any law, judgment, decree or governmental order, rule
or regulation applicable to Borrowers, or (c) result in the creation under any
agreement or instrument of any security interest, lien, charge, or encumbrance
upon any of the assets of the Borrowers. No approval or authorization of any
governmental authority is required to permit the execution, delivery or
performance by the Borrowers of this Second Amendment, or the transactions
contemplated hereby.
3.4 Incorporation of Certain Representations. The
representations and warranties of the Borrowers set forth in Section 4 of the
Credit Agreement are true and correct in all respects on and as of the date
hereof as though made on and as of the date hereof, except as to such
representations made as of an earlier specified date.
3.5 Default. No Potential Event of Default or Event of Default
under the Credit Agreement has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of this Second
Amendment shall be subject to the compliance by the Borrowers with their
agreements herein contained, and to the delivery of the following to the
Administrative Agent in form and substance satisfactory to the Administrative
Agent, Co-Agent and the Lenders:
- 2 -
3
4.1 Secretary's Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of each Borrower and dated the date of this
Second Amendment, attaching a certified copy of corporate resolutions
authorizing the execution, delivery and performance of this Second Amendment,
and as to the incumbency and specimen signature of the person or persons
authorized to execute and deliver this Second Amendment and any instrument or
agreement required hereunder on behalf of each Borrower.
4.2 Other Evidence. Such other evidence with respect to each
Borrower or any other person as the Administrative Agent or any Lender may
reasonably request in connection with this Second Amendment and the compliance
with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Credit Agreement and the Loan
Documents. Except as hereby expressly amended, the Credit Agreement and each
other Loan Document shall each remain in full force and effect, and are hereby
ratified and confirmed in all respects on and as of the date hereof.
5.2 Waivers. This Second Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of any
other term or condition, right, power or privilege under the Credit Agreement or
under any agreement, contract, indenture, document or instrument mentioned
therein; nor does it preclude or prejudice any rights of the Administrative
Agent, Co-Agent or the Lenders thereunder, or any exercise thereof or the
exercise of any other right, power or privilege, nor shall it require the
Requisite Lenders to agree to an amendment, waiver or consent for a similar
transaction or on a future occasion, nor shall any future waiver of any right,
power, privilege or default hereunder, or under any agreement, contract,
indenture, document or instrument mentioned in the Credit Agreement, constitute
a waiver of any other default of the same or of any other term or provision.
5.3 Counterparts. This Second Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Second Amendment shall
not become effective until the Borrowers, the Lenders, Administrative Agent and
the Co-Agent shall have signed a copy hereof and the same shall have been
delivered to the Administrative Agent.
- 3 -
4
5.4 Jurisdiction. This Second Amendment shall be governed by
and construed under the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
MAC FRUGAL'S BARGAINS - CLOSE-OUTS
INC.
By: /s/ PHILIP L. CARTER
---------------------------------
Name: Philip L. Carter
Title: Executive Vice President,
Chief Financial Officer
WEST COAST LIQUIDATORS, INC.
By: /s/ PHILIP L. CARTER
---------------------------------
Name: Philip L. Carter
Title: Executive Vice President,
Chief Financial Officer
PNS STORES, INC.
By: /s/ PHILIP L. CARTER
---------------------------------
Name: Philip L. Carter
Title: Executive Vice President,
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ KAY S. WARREN
--------------------------------
Kay S. Warren
Vice President
(Signatures continue)
- 4 -
5
BANK OF AMERICA ILLINOIS (formerly
named Continental Bank, N.A.), as
Co-Agent
By: /s/ KAY S. WARREN
------------------------------
Kay S. Warren
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ YVONNE C. DENNIS
------------------------------
Vice President
By: /s/ SABUR MOINI
------------------------------
Sabur Moini
Assistant Vice President
BANK OF AMERICA ILLINOIS (formerly
named Continental Bank, N.A.)
By: /s/ YVONNE C. DENNIS
------------------------------
Vice President
By: /s/ SABUR MOINI
------------------------------
Sabur Moini
Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ TED A. DUNN
------------------------------
Title: Assistant Vice President
----------------------------
(Signatures continued)
- 5 -
6
THE BANK OF CALIFORNIA, N.A.
By: SCOTT LANE
---------------------------
Title: Vice President
------------------------
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD. LOS ANGELES AGENCY
By: CURT M. BIREN
---------------------------
Title: Vice President
------------------------
UNITED STATES NATIONAL BANK OF
OREGON
By: /s/ JANET JORDAN
---------------------------
Title: Vice President
------------------------
BANQUE PARIBAS
By: JOHN N. CATE
---------------------------
Title: GVP
------------------------
By: RAYMOND T. BAXTER
---------------------------
Title: GVP
------------------------
MELLON BANK, N.A.
By: /s/ A. K. MARSH
---------------------------
Title: Vice President
------------------------
UNION BANK
By: /s/ ANN M. YASUDA
---------------------------
Title: Vice President
------------------------
- 6 -