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Amended And Restated Revolving Credit Agreement

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Sectors: Retail
Governing Law: Ohio, View Ohio State Laws
Effective Date: February 01, 2003
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EXHIBIT 10.1


AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of February 1, 2003, between BURLINGTON COAT FACTORY WAREHOUSE CORPORATION , a Delaware corporation, and BURLINGTON COAT FACTORY WAREHOUSE OF NEW JERSEY, INC., a New Jersey corporation, (collectively referred to herein as the "Borrower") and NATIONAL CITY BANK (the "Bank").

WHEREAS, Bank and Borrower previously executed a certain Revolving Credit and Term Loan Agreement dated as of February 1, 2001 ("Original Agreement"); and

WHEREAS, Bank and Borrower have agreed to amend and restate the terms of the Original Agreement to eliminate the Term Loan option, to extend the Commitment Termination Date to February 1, 2007, to modify the name of the Original Agreement to "Amended and Restated Revolving Credit Agreement", and to make such other changes as set forth herein, but to otherwise, preserve, ratify and reaffirm the terms of the Original Agreement.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower jointly and severally agrees with Bank as follows:

Article I--DEFINITIONS AND ACCOUNTING TERMS

Section 1.01. Defined Terms.

As used in this Agreement, the following terms have the following meanings (terms defined in the singular to have the same meaning when used in the plural and vice versa):


"Agreement" means the Original Agreement as defined in the first recital hereof, as amended by this Amended and Restated Revolving Credit Agreement, as such Agreement may hereafter be amended, supplemented, or modified from time to time.

"Business Day" means any day (other than any Saturday, Sunday or legal holiday) on which Bank's banking office is open to the public for carrying on substantially all of its banking functions;. and, if the applicable day relates to a LIBOR Loan, LIBOR Interest Period, or notice with respect to a LIBOR Loan, a day on which dealings in Dollar deposits are also carried on in the London interbank market and banks are open for business in London.

"Capitalization" means the amount equal to Net Worth plus Long-Term Liabilities.

"Capital Lease" means all leases which have been or should be capitalized on the books of the lessee in accordance with GAAP.

"Code" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations and published interpretations thereof.

"Commitment" means the Bank's obligation to make Loans to the Borrower pursuant to Section 2.01 in the amount referred to therein and subject to reduction as set forth in Section 2.02.

"Commitment Termination Date" means February 1, 2007, or such other later date on which the Commitment is to terminate as a result of this date being extended pursuant to Section 2.01 hereof.

"Commonly Controlled Entity" means an entity, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 414(b) or 414(c) of the Code.

"Confidential Information" means all information received by Bank from Borrower and its Subsidiaries in connection with this Agreement, but shall not include: (1) information publicly available by means other than wrongful disclosure or lawfully obtained from third parties without any confidentiality obligations; (2) information which is required by law or by a government agency to be disclosed by a Person, provided that such Person immediately notifies the other Person of the requirements for such disclosure and reasonably cooperates in the other Person's attempts to obtain a protective order with regard to such information; or (3) information provided to the Person with the intention that it be published, disseminated, released or distributed by such Person to the public.

"Consolidated" refers to the consolidation of the accounts of Borrower and Subsidiaries in accordance with GAAP, including principles of consolidation, applied in a manner consistent with the application of such principles in the preparation of the audited financial statements required under Section 5.08(2) hereof.

"Cost of Funds" means, with respect to a Fixed Rate Loan, the rate per annum (rounded upwards, if necessary, to the next higher 1/16 of 1%) determined by Bank by dividing (a) the rate per annum as determined by Bank, in its sole discretion, three (3) Business Days prior to the first day of the Interest Period for that Fixed Rate Loan, and then quoted by Bank to Borrower as Bank's so-called "cost of funds" for loans in an amount similar to that Fixed Rate Loan which rate shall be the same "cost of funds" quoted to other customers of Bank for obligations of similar amount, maturity, loan structure to the Loans evidenced by this Agreement; by (b) the difference of one (1) less the Cost of Funds Reserve Percentage;

"Cost of Funds Reserve Percentage" means the percentage (expressed as a decimal) which Bank determines to be the maximum (but in any case less than 1.00) reserve requirement (including, without limitation, any emergency, marginal, special, or supplemental reserve requirement) prescribed for domestic nonpersonal time deposits (or any other category of liabilities by reference to which the interest rate applicable to Long Term Cost of Funds Units is determined) under Regulation D (as amended from time to time) of the Board of Governors of the Federal Reserve System or under any successor regulation which Bank determines to be applicable, with each change in such maximum reserve requirement automatically, immediately, and without notice changing the interest rate thereafter applicable hereunder, it being agreed that Long Term Cost of Funds Units shall be deemed to be subject to such reserve requirements without the benefit of any credit for proration, exceptions, or offsets;

"Current Assets" means all assets of Borrower on a Consolidated basis that, in accordance with GAAP, would be classified as current assets of Borrower on a Consolidated basis.

"Current Liabilities" means all liabilities of Borrower on a Consolidated basis that, in accordance with GAAP, would be classified as current liabilities of Borrower on a Consolidated basis, whether or not the same would be characterized as a short term obligation for accounting purposes.

"Current Portion of Long Term Liabilities" means that portion of Long Term Liabilities which is payable within the next twelve (12) months of the date in question.

"Debt" means all liabilities of Borrower on a Consolidated basis.

"Default" means any of the events specified in Section 8.01, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

"Dollars" and the sign "$" mean lawful money of the United States of America.

"EBITDA" means, with respect to any period, the Consolidated net income for that period, plus Consolidated interest expense for that period, plus Consolidated federal, state, and local income taxes, if any, for that period, plus Consolidated depreciation and amortization charges for that period.

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations and published interpretations thereof.

"Event of Default" means any of the events specified in Section 8.01, provided that any requirement for the giving notice, the lapse of time, or both, or any other condition, has been satisfied.

"Fixed Rate Loan" means any Loan when and to the extent that the interest rate thereof is determined by reference to Cost of Funds.

"Funded Debt" means any Debt for the payment of borrowed money (including Loans made hereunder), the installment purchase price of property, or sums due pursuant to Capital Leases.

"GAAP" means generally accepted accounting principles in the United States.

"Interest Period" means (1) with respect to any LIBOR Loan, the period commencing on the date such loan is made and ending, as the Borrower may select, pursuant to Section 2.04, on the numerically corresponding day in the first, second, third, or sixth calendar month thereafter, except that each such Interest Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month; and (2) with respect to any Fixed Rate Loan, the period commencing on the date such Loan is made and ending, on the date selected by Borrower, being at least one (1) day thereafter, provided , that (i) each such Interest Period shall be subject to Bank's assent thereto and (ii) if any such Interest Period would otherwise end on a day that is not a Business Day, it shal l end instead on the next succeeding Business Day, provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(a) No Interest Period for a Revolving Loan may extend beyond the Commitment Termination Date.

(b) If an Interest Period would end on a day that is not a Business Day, such Interest Period shall be extended to the next Business Day unless, in the case of a LIBOR Loan, such Business Day would fall in the next calendar month, in which event such Interest Period shall end on the immediately preceding Business Day.

"Lending Office" means the Bank's office at 155 East Broad Street, Columbus, Ohio 43215 or such other office of the Bank (or of an affiliate of the Bank) as the Bank may from time to time specify to the Borrower as the office at which its Loans are to be made and maintained.

"Letters of Credit" shall have the meaning assigned to such term in Section 2.01.

"LIBOR" means the rate per annum (rounded upwards, if necessary, to the next higher 1/16 of 1%) determined by Bank by dividing (a) the rate per annum determined by Bank to equal the average rate per annum at which deposits (denominated in United States dollars) in an amount similar to that LIBOR Loan and with a maturity similar to the Interest Period for that LIBOR Loan are offered to Bank at 11:00 A.M. London time (or as soon thereafter as practicable) two (2) Eurodollar Business Days prior to the first day of that Interest Period by banking institutions in any Eurodollar market selected by Bank by (b) the difference of one (1) less the LIBOR Reserve Percentage.

"LIBOR Loan" means any Loan when and to the extent that the interest rate therefor is determined by reference to LIBOR.

"LIBOR Reserve Percentage" means the percentage (expressed as a decimal) which Bank determines to be the maximum (but in any case less than 1.00) reserve requirement (including, without limitation, any emergency, marginal, special, or supplemental reserve requirement) prescribed for so-called "Eurocurrency liabilities" (or any other category of liabilities by reference to which the interest rate applicable to LIBOR Loans is determined) under Regulation D (as amended from time to time) of the Board of Governors of the Federal Reserve System or under any successor regulation which Bank determines to be applicable, with each change in such maximum reserve requirement automatically, immediately, and without notice changing the interest rate thereafter applicable to each LIBOR Loan, it being agreed that LIBOR Loans shall be deemed Eurocurrency liabilities subject to such reserve requirements without the benefit of any credit for proration, exceptions, or offsets.

"Lien" means any mortgage, deed of trust, pledge, security interest, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference, priority, or other security agreement or preferential arrangement, charge, or encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction to evidence any of the foregoing.)

"Loans" means the Revolving Credit Loans.

"Loan Document(s)" means this Agreement, the Note, and all other documents executed in connection therewith.

"Long Term Liabilities" means the liabilities of Borrower on a Consolidated basis other than Current Liabilities and deferred taxes.

"Multiemployer Plan" means a Plan described in Section 4001(a)(3) of ERISA.

"Net Worth" means the amount by which the Consolidated assets of Borrower exceed its Debt.

"Note" means the amended and restated promissory note described in Section 2.08 hereof.

"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

"Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority, or other entity of whatever nature.

"Plan" means any pension plan which is covered by Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is an "employer" as defined in Section 3(5) of ERISA.

"Prime Loan" means any Loan when and to the extent that the interest rate therefor is determined by reference to the Prime Rate.

"Prime Rate" means the rate of interest announced by the Bank from time to time at its Lending office as its prime commercial lending rate, which rate is not intended to be the lowest rate of interest charged by the Bank to its borrowers.

"Prohibited Transaction" means any transaction set forth in Section 406 of ERISA or Section 4975 of the Code.

"Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System as amended or supplemented from time to time.

"Reportable Event" means any of the events set forth in Section 4043 of ERISA.

"Revolving Credit Loans" shall have the meaning assigned to such term in Section 2.01.

"Subsidiary" means those corporations set forth on Schedule 2 hereof which are operating corporations fifty percent (50%) or more of the voting capital stock or other ownership interests of which is owned, directly or indirectly, by Borrower.

"Tangible Net Worth" means the amount by which the Consolidated tangible net assets of Borrower exceed its Debt.


Section 1.02. Accounting Terms; Material.

(a) All accounting terms not specifically defined herein shall be construed in accordance with GAAP consistent with those applied in the preparation of the financial statements referred to in Section 4.04, and all financial data submitted pursuant to this Agreement shall be prepared in accordance with such principles.

(b) The word "material" or any form thereof, when used herein shall, unless the context otherwise requires, mean a significant adverse effect upon the financial condition (or any other item specifically enumerated in any provision hereof) of the Borrower or any of its Subsidiaries on a Consolidated basis.

Article II--AMOUNT AND TERMS OF THE LOANS

Section 2.01. The Commitment; Extension of Commitment Termination Date.

(a) The Bank agrees, on the terms and conditions hereinafter set forth, to make loans (the "Revolving Credit Loans") to and issue Letters of Credit ("Letters of Credit") for the Borrower pursuant to the Letter of Credit subfacility from time to time during the period from the date of this Agreement up to but not including the Commitment Termination Date in an aggregate amount of Loans outstanding and face amount of Letters of Credit not to exceed at any time ONE HUNDRED MILLION AND 00/100 DOLLARS ($100,000,000.00), as such amount may be reduced pursuant to Section 2.02 (the "Commitment"). Each Revolving Credit Loan which shall not utilize the Commitment in full shall be in an amount not less One Million and 00/100 Dollars ($1,000,000.00). Within the limits of the Commitment, the Borrower may borrow, repay pursuant to Section 2.09, and reborrow under this Section 2.01. On such terms and conditions, the Loans may be outstanding as Prime Loans, LIBOR Loans, or Fixed R ate Loans.

(b) The term of the Commitment shall be for a period commencing February 1, 2003 and expiring four (4) years later on February 1, 2007. On February 1, 2004, and on each February 1 of each year thereafter, the then current term of the Commitment shall automatically be extended for a period of one (1) additional year, unless Bank notifies Borrower, not later than thirty days prior to such annual anniversary date of February 1, that Bank desires the Commitment to terminate at the end of the then current term. The Commitment shall also terminate on the effective date of a notice given pursuant to Section 2.02 reducing the Commitment by the full amount thereof. This Agreement shall terminate on the later of the Commitment Termination Date and the date of repayment in full of all of the Loans.

Section 2.02. Reduction of Commitment.

The Borrower shall have the right, upon at least five (5) Business Days' notice to the Bank, to terminate in whole or reduce in part the unused portion of the Commitment, provided that each partial reduction shall be in the amount of not less than One Million and 00/100 Dollars ($1,000,000.00). The Commitment, once reduced or terminated, may not be reinstated.

Section 2.03. Intentionally Omitted.

Section 2.04. Notice and Manner of Borrowing.

The Borrower shall give the Bank written or oral notice (effective upon receipt) of any Revolving Credit Loans under this Agreement on the Business Day for each such Loan, specifying: (1) the date of such Loan; (2) the amount of such Loan; (3) the type of Loan; and (4) in the case of a LIBOR or Fixed Rate Loan, the duration of the Interest Period applicable thereto. Provided that an appropriate notice is received prior to 12:00 noon on the requisite Business Day and upon fulfillment of the applicable conditions set forth in Article III, the Bank will make such Revolving Credit Loan available to the Borrower in immediately available funds by crediting the amount thereof to the Borrower's account with the Bank not later than 4:00 p.m. (Columbus, Ohio time) on the date of such Revolving Credit Loan.


All notices given under this Section 2.04 shall be irrevocable once given.

Section 2.05. Conversion and Renewals.

The Borrower may elect from time to time to convert all or a part of one type of Loan into another type of Loan or to renew all or part of a Loan by giving the Bank written or oral notice (effective upon receipt) on the day of the conversion or renewal of a Loan, specifying: (1) the renewal or conversion date; (2) the amount of the Loan to be converted or renewed; (3) in the case of conversions, the type of Loan to be converted into; and (4) in the case of renewals of or a conversion into LIBOR or Fixed Rate Loans, the duration of the Interest Period applicable thereto. provided that LIBOR and Fixed Rate Loans can be converted only on the last day of the Interest Period for such Loan. All notices given under this Section 2.05 shall be irrevocable and shall be given not later than 1:00 p.m. (Columbus, Ohio time) on the day which is not less than the number of Business Days specified above for such notice. If the Borrower shall fail to give the Bank the notice as specified above for the renewal or conversion of a LIBOR or Fixed Rate Loan prior to the end of the Interest Period with respect thereto, such LIBOR or Fixed Rate Loan shall automatically be converted into a Prime Loan on the last day of the Interest Period for such Loan.

Section 2.06. Interest.

The Borrower shall pay interest to the Bank on the outstanding and unpaid principal amount of the Revolving Credit Loans made under this Agreement at a rate per annum as follows:

(1) For a Prime Loan at a rate equal to the Prime Rate;

(2) For a LIBOR Loan at a rate equal to the LIBOR Interest Rate plus one half of one percent (.50%); and

(3) For a Fixed Rate Loan at a rate equal to the Cost of Funds Rate plus one half of one percent (.50%).

Any change in the interest rate based on Prime Rate resulting from a change in the Prime Rate shall be effective as of the opening of business on the day on which such change in the Prime Rate becomes effective.


Interest on each Loan shall be calculated on the basis of a year of 360 days for the actual number of days elapsed.


Interest on the Loans shall be paid in immediately available funds at the Lending Office as follows:


(1) For each Prime Loan, on the first day of each month commencing the first such day after such Loan and at maturity for such Loan;

(2) For each LIBOR Loan, on the last day of the Interest Period with respect thereto and, in the case of an Interest Period greater than three months, at three month intervals after the first day of such Interest Period; and

(3) For each Fixed Rate Loan, on the last day of the Interest Period with respect thereto and, in case of an Interest Period greater than 90 days, at 90-day intervals after the first day of such Interest Period.

Section 2.07. Commitment Fee.

The Borrower agrees to pay to the Bank a commitment fee on the average daily unused portion of the Commitment from the date of this Agreement until the Commitment Termination Date at the rate of two tenths of one percent (.20%) per annum, payable on the last day of each quarter during the term of the Commitment, commencing March 31, 2003, and on the Commitment Termination Date.

Section 2.08. The Note; Repayment.

All Loans made by the Bank under this Agreement shall be evidenced by, and repaid with interest in accordance with, a single amended and restated promissory Note of the Borrower in substantially the form of Exhibit A, duly completed, dated the date of this Agreement, and payable to the Bank for the account of the applicable Lending Office, such Note to represent the obligation of the Borrower to repay the Revolving Credit Loans. The Bank is hereby authorized by the Borrower to endorse on its loan records the amount and type of each Loan and each renewal, conversion, and payment of principal amount received by the Bank on account of each Loan, which endorsement shall, in the absence of manifest error, be conclusive as to the outstanding balance of the Loans made by the Bank; provided, however, that the failure to make such notation with respect to any Loan or renewal, conversion, or payment shall not limit or otherwise affect the obligations of the Borrower under this Agreement or the N ote.


All Revolving Credit Loans and all unpaid interest accrued thereon shall be repaid in full on the Commitment Termination Date.


Section 2.09. Prepayments.


Prior to and including the Commitment Termination Date, Borrower shall have the right to prepay the principal of this Note in whole or in part, provided , that (a) each such prepayment shall be in the principal sum of at least one million and 00/100 dollars ($1,000,000.00), and (b) concurrently with the prepayment of the entire unpaid principal balance of this Note, Borrower shall prepay the accrued interest on the principal being prepaid.


Each prepayment of the principal of the Loans may be made without premium or penalty, provided , that if any LIBOR Loan or Fixed Rate Loan is paid (whether by way of a prepayment or a payment following any acceleration of the due date thereof) in whole or in part before the last day of the Interest Period for that Loan, then, and in each such case, Borrower shall, concurrently with the payment, pay to Bank (i) the accrued interest on the principal being prepaid and (ii) all expenses incurred by Bank (including Bank's reasonable determination of its expenses in redeploying funds, which expenses include rate differences) which arise by reason of a prepayment of any such loan.


Section 2.10. Method of Payment.

The Borrower shall make each payment under this Agreement and under the Note not later than 2:00 p.m. (Columbus, Ohio time) on the date when due in lawful money of the United States to the Bank at its Lending Office for the account of the applicable Lending Office in immediately available funds. The Borrower hereby authorizes the Bank, if and to the extent payment is not made when due under this Agreement or under the Note, to charge from time to time against any account of the Borrower with the Bank any amount so due. Whenever any payment to be made under this Agreement or under the note shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and the commitment fee, as the case may be, except, in the case of a LIBOR Loan, if the result of such extension would be to extend such payment into another calendar month, such payment shall be made on the immediately preceding Business Day.

Section 2.11. Use of Proceeds.

The proceeds of the Loans hereunder shall be used by the Borrower for (a) working capital purposes, , (b) for temporary financing of capital projects in anticipation of term financing for such projects, (c) for general corporate purposes, and (d) for any other lawful business purpose except as otherwise restricted herein. The Borrower will not, directly or indirectly, use any part of such proceeds for the purpose of purchasing or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or to extend credit to any Person for the purpose of purchasing or carrying any such margin stock, or for any purpose which violates, or in inconsistent with, Regulation X of such Board of Governors.

Section 2.12. Illegality.

Notwithstanding any other provision in this Agreement, if the Bank reasonably and in good faith determines that any applicable law, rule, or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by the Bank (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank, or comparable agency shall make it unlawful or impossible for the Bank (or its Lending Office) to (1) maintain its Commitment, then upon notice to the Borrower by the Bank the Commitment of the Bank shall terminate, provided, however, if the Commitment may be rendered legally permissible by an amendment to this Agreement, the Bank shall first offer to Borrower, at Borrower's option, the opportunity to continue the Commitment by adoption of such amendment, or if conditions ch ange so as to render the maintenance of the Commitment lawful, the Commitment shall, in such event, be reinstated; or (2) maintain or fund its LIBOR Loans, then upon notice to the Borrower by the Bank the outstanding principal amount of the LIBOR Loans, together with interest accrued thereon, and any other amounts payable to the Bank under this Agreement shall be repaid (a) immediately upon demand of the Bank if such change or compliance with such request, in the judgment of the Bank, requires immediate repayment; or (b) at the expiration of the last Interest Period to expire before the effective date of any such change or request, provided, however, if the LIBOR Loan may be rendered legally permissible by an amendment to this Agreement, the Bank shall first offer to Borrower, at Borrower's option, (i) the opportunity to continue the LIBOR Loan by adoption of such amendment, or if conditions change so as to render the maintenance of the LIBOR Loan lawful, the LIBOR Loan shall, in such event, be reinstated o r (ii) convert to a Fixed Rate Loan or to a Prime Rate Loan.

Section 2.13. Disaster.

Notwithstanding anything to the contrary herein, if the Bank determines (which determination shall be conclusive) that:

(1) Quotations of interest rates for the relevant deposits referred to in the definition of LIBOR Interest Rate, are not being provided in the relevant amounts or for the relative maturities for purposes of determining the rate of interest on a LIBOR or Cost of Funds Loan as provided in this Agreement; or

(2) The relevant rates of interest referred to in the definition of LIBOR Interest Rate, upon the basis of which the rate of interest for any such type of loan is to be determined do not accurately cover the cost to the Bank of making or maintaining such type of Loans;

then the Bank shall forthwith give notice thereof to the Borrower, whereupon (a) the obligation of the Bank to make LIBOR Loans, shall be suspended until the Bank notifies the Borrower that the circumstances giving rise to such suspension no longer exist; and (b) the Borrower shall repay in full the then outstanding principal amount of each LIBOR Loan
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