-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, mx4YaNTxPRNZqWa3x67Plk+R2zLqskLJ2ji49bp+tO1VSIUvgWYi/KjBiYWZ0W9N R0NEO3AZUu6ScG5W1aDxoA== 0000950172-94-000233.txt : 19941128 0000950172-94-000233.hdr.sgml : 19941128 ACCESSION NUMBER: 0000950172-94-000233 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19941123 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PETRIE STORES CORP CENTRAL INDEX KEY: 0000077808 STANDARD INDUSTRIAL CLASSIFICATION: 5621 IRS NUMBER: 362137966 STATE OF INCORPORATION: NY FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-13232 FILM NUMBER: 94561641 BUSINESS ADDRESS: STREET 1: 70 ENTERPRISE AVE CITY: SECAUCUS STATE: NJ ZIP: 07094 BUSINESS PHONE: 2018663600X1480 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ESTATE OF MILTON PETRIE CENTRAL INDEX KEY: 0000922185 STANDARD INDUSTRIAL CLASSIFICATION: 0000 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O PETRIE STORES CORP STREET 2: 70 ENTERPRISE AVENUE CITY: SECAUCUS STATE: NJ ZIP: 07084 BUSINESS PHONE: 2018662360 MAIL ADDRESS: STREET 1: C/O PETRIE STORE CORP STREET 2: 70 ENTERPRISE AVENUE CITY: SECAUCUS STATE: NJ ZIP: 07084 FORMER COMPANY: FORMER CONFORMED NAME: PETRIE MILTON DATE OF NAME CHANGE: 19940422 SC 13D/A 1 SCHEDULE 13D AMENDMENT NO. 5 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Amendment No. 5 Under the Securities Exchange Act of 1934 PETRIE STORES CORPORATION (Name of Issuer) Common Stock, par value $1.00 per share (Title of Class and Securities) 716434-10-5 (CUSIP Number of Class of Securities) Peter A. Left Vice Chairman, Chief Operating Officer, Chief Financial Officer and Secretary Petrie Stores Corporation 70 Enterprise Avenue Secaucus, New Jersey 07084 201-866-3600 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: Alan C. Myers, Esq. Skadden, Arps, Slate, Meagher & Flom 919 Third Avenue New York, New York 10022 (212) 735-3000 November 3, 1994 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: ___ |___| Check the following box if a fee is being paid with this statement: ___ |___| SCHEDULE 13D CUSIP NO. 716434-10-5 1 NAMES OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Estate of Milton Petrie ###-##-#### 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP. (a) ( ) (b) ( ) 3 SEC USE ONLY 4 SOURCE OF FUNDS* 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York 7 SOLE VOTING POWER 28,111,274 NUMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY -0- EACH REPORTING 9 SOLE DISPOSITIVE POWER PERSON 28,111,274 WITH 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 28,111,274 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* ( ) 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11 60.1% 14 TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! This statement on Schedule 13D amends and supplements the statement on Schedule 13D (the "Statement") filed with the Securities and Exchange Commission by the decedent, Milton Petrie, in connection with the ownership by his Estate of shares of common stock, par value $1.00 per share (the "Common Stock"), of Petrie Stores Corporation, a New York corporation (the "Company"). Unless otherwise defined herein capitalized terms shall have the meanings ascribed to them in the Statement. Item 2. Identity and Background Item 2 is hereby amended and restated to be and read in its entirety as follows: This statement is filed on behalf of the Estate of Milton Petrie (the "Estate"). The business address of the Estate is c/o Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, NY 10002, Attention: Jonathan Koslow, Esq. Pursuant to the Preliminary Letters Testamentary, issued on November 14, 1994, the Estate is administered by eight executors: Joseph H. Flom, Hilda Kirschbaum Gerstein, Jerome A. Manning, Bernard Petrie, Carroll Petrie, Dorothy Fink Stern, Laurence A. Tisch and David Zack. A copy of the Preliminary Letters Testamentary is filed as Exhibit I to this Statement and is incorporated herein by reference. Mr. Flom is an attorney and a partner in Skadden, Arps, Slate, Meagher & Flom, a law firm and counsel to the Company. His principal business address is Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, New York 10022. Ms. Gerstein is the Vice Chairman of the Company. Her principal business address is Petrie Stores Corporation, 70 Enterprise Avenue, Secaucus, New Jersey 07084. Ms. Gerstein owns, in her own capacity, 293,878 shares of Common Stock. Mr. Manning is an attorney and a partner in Stroock, Stroock & Lavan, a law firm. His principal business address is Stroock, Stroock & Lavan, 7 Hanover Square, New York, New York 10004. Mr. Bernard Petrie, the son of Milton Petrie, is an attorney. His principal business address is Law Offices of Bernard Petrie, 633 Battery Street, San Francisco, California 94111. Mr. Bernard Petrie owns, in his own capacity, 34,800 shares of Common Stock. Mrs. Petrie, the wife of Milton Petrie at the time of his death, is a private investor and philanthropist. Her principal business address is 834 Fifth Avenue, New York, New York 10021. Mrs. Petrie owns, in her own capacity, 6,380 shares of Common Stock. Ms. Stern, formerly the Company's Executive Vice President, is a consultant to the Company. Her principal business address is 303 East 57th Street, New York, New York 10022. Ms. Stern owns, in her own capacity, 182,091 shares of Common Stock. Mr. Tisch is Chairman of the Board of Directors and Co-Chief Executive Officer of Loews Corporation, and Chairman of the Board, President and Chief Executive Officer of CBS Inc. His principal business address is CBS Network, 51 West 52nd Street, 35th Floor, New York, New York 10019. Mr. Tisch owns, in his own capacity, 1,000 shares of Common Stock. Mr. Zack is an accountant and a former partner in David Berdon & Co., an accounting firm. His principal business address is David Berdon & Co., 415 Madison Avenue, New York, New York 10017-1178. During the past five years, none of Mr. Flom, Ms. Gerstein, Mr. Manning, Mr. Bernard Petrie, Mrs. Petrie, Ms. Stern, Mr. Tisch and Mr. Zack has been convicted in a criminal proceeding, or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which proceeding he or she has been subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws. Mr. Flom, Ms. Gerstein, Mr. Manning, Mr. Bernard Petrie, Mrs. Petrie, Ms. Stern, Mr. Tisch and Mr. Zack are citizens of the United States. Item 3. Source and Amount of Funds or Other Consideration. Item 3 is hereby amended and supplemented by adding the following: The shares of Common Stock of the Company which are the subject of this Schedule 13D devolved to the Estate, without consideration, as a result of the death of Milton Petrie on November 6, 1994. Item 4. Purpose of Transaction. Item 4 is hereby amended and restated to be and read in its entirety as follows: On April 20, 1994, Milton Petrie, by act of his attorneys-in-fact, entered into a Voting Agreement and Proxy (the "Toys Voting Agreement") with Toys "R" Us, Inc., a Delaware corporation ("Toys"), pursuant to which Mr. Petrie agreed to vote the Common Stock held by him in favor of the transactions (collectively, the "Transaction") contemplated by the Acquisition Agreement, dated as of April 20, 1994 and amended as of May 10, 1994 (the "Acquisition Agreement"), between the Company and Toys. Mr. Petrie also granted to Toys an irrevocable proxy to vote his Common Stock in favor of the Transaction. The Toys Voting Agreement contains restrictions on, among other things, Mr. Petrie's ability to dispose of or pledge his Common Stock. Pursuant to the Acquisition Agreement, the Company agreed to exchange with Toys all of the shares of common stock, par value $.10 per share (the "Toys Common Stock"), of Toys held by the Company and certain subsidiaries of the Company (currently, approximately 39.9 million shares) and cash (presently, estimated to be approximately $180 million) for a number of shares of Toys Common Stock equal to (i) the number of shares of Toys Common Stock held by the Company, less approximately 3.3 million shares of Toys Common Stock, plus (ii) such amount of cash divided by the market value of a share of Toys Common Stock (the "Exchange"). The closing of the Exchange is conditioned upon, among other things; (i) the approval thereof by the holders of two-thirds of the outstanding Common Stock; (ii) the consummation of the disposition of the Company's retail operations; and (iii) the reasonable determination by Toys that it will not become responsible for any liabilities of the Company as a consequence of the consummation of the Transaction. The Exchange may be terminated if it is not consummated by January 28, 1995. After the closing of the Exchange and the disposition of the Company's retail operations, the Company will liquidate and distribute to its shareholders the shares of Toys Common Stock received in the Exchange, except an amount to be held in a liquidating trust established to provide for the Company's contingent liabilities as of the time of the liquidation and dissolution of the Company. On August 23, 1994, Milton Petrie, by act of his attorneys-in-fact, entered into a Voting Agreement and Proxy (the "WP Voting Agreement") with WP Investors, Inc., a Delaware corporation ("WP Investors"), pursuant to which Mr. Petrie agreed to vote the Common Stock held by him, or execute a consent with respect to such Common Stock, in favor of the transactions contemplated by the Stock Purchase Agreement, dated as of August 23, 1994, between the Company and WP (the "Stock Purchase Agreement"). Milton Petrie, by act of his attorneys-in-fact, also granted to WP Investors an irrevocable proxy to vote his Common Stock in favor of the transactions contemplated by the Stock Purchase Agreement. The WP Voting Agreement contains restrictions on, among other things, Mr. Petrie's ability to dispose of or pledge his Common Stock. Pursuant to the Stock Purchase Agreement, as amended as of November 3, 1994, WP and one or more of its non-affiliated designees (collectively, the "Buyer") will purchase the shares of common stock (the "Stock Purchase") in a Delaware subsidiary of the Company ("Retail Holding Company"), to which all of the retail operations of the Company will have been transferred prior to the closing date of the Stock Purchase. The purchase price will be $190 million in cash (the "Purchase Price"). The closing of the Stock Purchase is conditioned upon, among other things, (i) the Buyer having available to it for draw the financing contemplated by a commitment letter, dated as of November 3, 1994 (the "Commitment Letter"), by and among Buyer, WP Investors, Warburg Pincus Investors, L.P., Chemical Bank, The Chase Manhattan Bank, N.A., Chemical Securities, Inc. and Chase Securities, Inc., and all conditions to the obligations of the lenders thereunder having been satisfied or waived, substantially on the terms contemplated thereby; provided, however, that Buyer shall not be entitled to rely on this condition as grounds for not consummating the Stock Purchase if Buyer shall not have satisfied its covenants with respect to the Commitment Letter; (ii) the Buyer being reasonably satisfied that the Company shall have made or shall make adequate provision for its remaining liabilities and obligations, including the amount to be held in escrow and trust in connection with the Company's liquidation; (iii) Retail Holding Company and its subsidiaries, or a subsidiary of Buyer which agrees to be bound by the terms of the Stock Purchase Agreement, as applicable, having and immediately following the closing of the Stock Purchase continuing to have, on a consolidated basis, a minimum net worth of not less than $150,000,000 as determined in accordance with GAAP, but excluding goodwill; and (iv) the approval of the Stock Purchase by the holders of two-thirds of the Company's outstanding Common Stock. As part of the Stock Purchase, Buyer will assume a substantial portion of the Company's liabilities and the Company will retain certain contingent liabilities. The Stock Purchase may be terminated if it is not consummated by January 31, 1995. In connection with the execution of Amendment No. 1 to the Stock Purchase Agreement, dated as of November 3, 1994 ("Amendment No. 1"), between the Company and WP Investors, Milton Petrie, by act of his attorneys-in- fact, and WP Investors, executed a Confirmation Agreement, dated as of November 3, 1994 ("Confirmation Agreement"), to provide, among others, that all references to the Stock Purchase Agreement in the WP Voting Agreement shall be deemed to refer to the Stock Purchase Agreement as amended by Amendment No. 1 and that, except as provided in the Confirmation Agreement, following the execution of the Confirmation Agreement, the WP Voting Agreement shall remain unchanged and in full force and effect. On November 6, 1994, Milton Petrie died and, as a result, his Common Stock devolved, without consideration, to the Estate. Both the Toys Voting Agreement and the WP Voting Agreement provide that the irrevocable proxies granted thereby shall survive the death of Mr. Petrie, and accordingly remain in full force and effect. Except as set forth in this Item 4, the Toys Voting Agreement, the WP Voting Agreement and the Confirmation Agreement, the Estate does not have any plans or proposals which relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D. The Estate reserves the right to acquire or dispose of shares of Common Stock, or to formulate other purposes, plans or proposals regarding the Company to the extent deemed advisable in light of general investment policies, market conditions and other factors. A copy of the Toys Voting Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. A copy of the Toys Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. A copy of the WP Voting Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. A copy of the Stock Purchase Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. A copy of the Confirmation Agreement is filed as Exhibit J to this Statement and is incorporated herein by reference. A copy of Amendment No. 1 is filed as Exhibit K to this Statement and is incorporated herein by reference. Item 5. Interest and Securities of the Issuer. Item 5 is hereby amended and restated to be and read in its entirety as follows: (a)-(b) The Estate beneficially owns, and has the sole power to vote and dispose of, 28,111,274 shares of the Common Stock, constituting 60.1% of the 46,838,776 shares of Common Stock that were issued and outstanding as of October 31, 1994. Such amounts do not include any Common Stock owned by the executors of the Estate in their individual capacity. Each of the executors disclaims beneficial ownership of the Common Stock held by the Estate. The executors of the Estate share equally the power to dispose of, and vote, the Common Stock held by the Estate. (c) Other than the devolvement of the Common Stock to the Estate following the death of Milton Petrie on November 6, 1994, neither Mr. Petrie nor the Estate has effected any transaction in the Common Stock during the past 60 days. (d)-(e) Inapplicable. Item 6. Contracts, Agreements, Underwritings or Relationships with Respect to Securities of the Issuer. Item 6 is hereby amended and restated to be and read in its entirety as follows: On April 20, 1994, Milton Petrie entered into the Toys Voting Agreement. The Toys Voting Agreement was executed on behalf of Mr. Petrie by his attorneys-in- fact, pursuant to a power of attorney ("Power of Attorney") granted on March 15, 1983 to each of Bernard Petrie, Joseph H. Flom, Jerome A. Manning and Albert Ratner (the "Attorneys-In-Fact"). A copy of the Toys Voting Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. The Power of Attorney was previously filed as an exhibit to this Statement and is incorporated herein by reference. On August 23, 1994, Milton Petrie entered into the WP Voting Agreement. The WP Voting Agreement was executed on behalf of Mr. Petrie by the Attorneys-In- Fact. A copy of the WP Voting Agreement was previously filed as an exhibit to this Statement and is incorporated herein by reference. On November 3, 1994, Milton Petrie, by act of the Attorneys-In-Fact, executed the Confirmation Agreement. A copy of the Confirmation Agreement is filed as Exhibit J to this Statement and is incorporated herein by reference. Pursuant to Milton Petrie's will, the executors of the Estate share equally the power to dispose of, and vote, the Common Stock held by the Estate. There is no understanding among the executors with respect to the voting of the Common Stock held by them in their individual capacities. Item 7. Material to be Filed as Exhibits. Item 7 is hereby amended and supplemented by adding the following exhibits: Exhibit I Preliminary Letters Testamentary, issued on November 14, 1994. Exhibit J Confirmation Agreement, dated as of November 3, 1994, between Milton Petrie and WP Investors, Inc. Exhibit K Amendment No. 1 to Stock Purchase Agreement, dated as of November 3, 1994, between Petrie Stores Corporation and WP Investors, Inc. SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this Statement is true, complete and correct. Dated: November 22, 1994 ESTATE OF MILTON PETRIE By: /s/ JOSEPH H. FLOM Joseph H. Flom Executor By: * Hilda Kirschbaum Gerstein Executor By: * Jerome A. Manning Executor By: * Bernard Petrie Executor By: * Carroll Petrie Executor By: * Dorothy Fink Stern Executor By: * Laurence A. Tisch Executor By: * David Zack Executor * By: /s/ JOSEPH H. FLOM Joseph H. Flom Attorney-in-fact Date: November 22, 1994 EXHIBIT INDEX Exhibit Page I Preliminary Letters Testamentary, issued on November 14, 1994. J Confirmation Agreement, dated as of November 3, 1994, between Milton Petrie and WP Investors, Inc. K Amendment No. 1 to Stock Purchase Agreement, dated as of November 3, 1994, between Petrie Stores Corporation and WP Investors, Inc. EX-99 2 EXHIBIT I - PRELIMINARY LETTERS TESTAMENTARY The power and authority of the executor under these preliminary letters testamentary are limited in accordance with SCPA 1412 TY--680868 Form CR12397 The People of the State of New York, 4686/94 To all to whom these presents shall come or may concern, PRELIMINARY LETTERS TESTAMENTARY SEND GREETING: Know Ye, that we, having inspected the records of our Surrogate's Court in and for the County of New York, do find that on the 14th day of November in the year one thousand nine hundred and 94 by said Court Letters Testamentary on the estate of MILTON PETRIE late of the County of New York, deceased, were granted unto CARROLL PETRIE, BERNARD PETRIE, JOSEPH H. FLOM, LAURENCE A. TISCH, HILDA KIRSCHBAUM GERSTEIN, DOROTHY FINK STERN, JEROME A. MANNING AND DAVID ZACK the Executors named in the last Will and Testament of said deceased, and that it does not appear by said Records that said Letters have been revoked. In Testimony Whereof, we have caused the Seal of the Surrogate's Court of the County of New York to be hereunto affixed. Witness, Honorable RENEE R. ROTH Surrogate of our said County, in the City of New York, the 14th day of November in the year of our Lord one thousand nine hundred and 94 [SEAL] /s/ Robert M. Reaves Clerk of the Surrogate's Court EX-99 3 EXHIBIT J - CONFIRMATION LETTER As of November 3, 1994 CONFIRMATION Reference is made to the Voting Agreement and Proxy, dated as of August 23, 1994, between WP Investors, Inc., a Delaware corporation (the "Buyer"), and Milton Petrie, the record and beneficial owner of 28,111,274 shares of common stock of Petrie Stores Corporation, a New York corporation (the "Seller"), as consented to and agreed by Toys "R" Us, Inc. ("Toys") (the "Voting Agreement") and to the Amendment to the Purchase Agreement (as such term is defined in the Voting Agreement) (the "Amendment") which the Buyer and the Seller are entering into concurrently herewith. In consideration of the premises and the agreements set forth herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby agree as follows: 1) that the "Transaction" as defined in the Voting Agreement shall include the transactions contemplated by the Purchase Agreement, as amended by the Amendment, 2) that all references to the Purchase Agreement in the Voting Agreement shall hereafter be deemed references to the Purchase Agreement as amended by the Amendment, and 3) that, except as otherwise provided herein, the Voting Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. WP INVESTORS, INC. By: /s/ Errol M. Cook Name: Errol M. Cook Title: Vice President MILTON PETRIE By: /s/ Bernard Petrie Bernard Petrie, as Attorney-in-Fact By: /s/ Joseph H. Flom Joseph H. Flom, as Attorney-in-Fact By: /s/ Jerome A. Manning Jerome A. Manning, as Attorney-in-Fact By: /s/ Albert Ratner Albert Ratner, as Attorney-in-Fact Consented and Agreed: TOYS "R" US, INC. By: /s/ Louis Lipschitz Name: Louis Lipschitz Title: Senior V.P. Finance and CFO EX-99 4 EXHIBIT K - AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT AMENDMENT NO. 1 TO THE STOCK PURCHASE AGREEMENT This AMENDMENT NO. 1 (the "Amendment") to the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated as of August 23, 1994, by and between Petrie Stores Corporation, a New York corporation ("Seller") and WP Investors, Inc., a Delaware corporation ("Buyer") is being entered into as of November 3, 1994. Whereas, Seller and Buyer desire to amend the Stock Purchase Agreement to provide that Seller shall provide for the payment by Seller and/or the Liquidating Trust of certain tax liabilities arising out of or related to, certain past sales or other dispositions by Seller or its subsidiaries of shares of Toys Common Stock; and Whereas, Seller and Buyer desire to amend the Stock Purchase Agreement to waive certain conditions to each party's respective obligations to consummate the Stock Purchase. Now, Therefore, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows: Section 1. Definitions; References. Unless otherwise specifically defined herein, each term used herein shall have the meaning assigned to such term in the Stock Purchase Agreement. Each reference to "hereof", "herein", "hereunder", "hereby" and "this Agreement" shall from and after the date hereof refer to the Stock Purchase Agreement as amended by this Amendment. Section 2. Amendment to Introduction. The Introduction to the Stock Purchase Agreement is amended to be and read in its entirety as follows: "STOCK PURCHASE AGREEMENT, dated as of August 23, 1994, and amended as of November 3, 1994 (this "Agreement"), by and between Petrie Stores Corporation, a New York corporation ("Seller") and WP Investors, Inc., a Delaware corporation ("Buyer")." Section 3. Amendment to Time and Place of Closing. Section 2.1 of the Stock Purchase Agreement is amended to delete the reference therein to October 31, 1994 and to insert in its place December 9,1994. Section 4. Amendment to Covenants of the Parties. A. Section 5.9 of the Stock Purchase Agreement is amended to be and read in its entirety as follows: "Financing. (a) Any financing procured by the Buyer to purchase the Shares pursuant to this Agreement and to consummate the transactions contemplated hereby shall include an equity contribution by E.M. Warburg, Pincus & Co., Inc. and/or one or more of its affiliates in the amount of not less than $100 million; provided, however, that such equity contribution may be reduced to the extent not necessary for the Buyer to perform the covenant set forth in Section 5.6. (b) Buyer hereby expressly acknowledges that Seller, in agreeing to Buyer's conditions to consummation of the Stock Purchase as set forth in Section 7.3(d) hereof, has relied upon the existence and terms of that certain commitment letter and the Summary of Terms and Conditions, a copy of which has been provided to Seller (collectively, the "Commitment Letter"), dated as of November 3, 1994, by and among Buyer, WP Investors, Inc., Warburg Pincus Investors, L.P., Chemical Bank and The Chase Manhattan Bank, N.A. (collectively, the "Managing Agents"), and Chemical Securities Inc. and Chase Securities, Inc. (collectively, the "Arrangers"). For the benefit of Buyer and Seller, Buyer hereby covenants and agrees that prior to the Closing Buyer will comply fully with all of the terms, provisions and conditions set forth in the Commitment Letter, the Facility (as defined in the Commitment Letter), the definitive documentation for the Facility described therein or any transaction contemplated thereby (collectively, the "Financing") and any related fee letters. For the benefit of Seller, Buyer hereby further covenants and agrees that Buyer will not amend, modify or waive any term or provision of the Commitment Letter or waive any of its rights thereunder, in any event so as to make it less likely that the condition set forth in Section 7.3(d) hereof will be satisfied." B. Section 5.17 of the Stock Purchase Agreement is amended to be and read in its entirety as follows: "On or prior to the Closing Date, Seller shall provide in a manner reasonably satisfactory to Buyer for the payment by Seller and the Liquidating Trust to Buyer, the Company and its subsidiaries of the Excluded Liabilities (to the extent not previously paid) in a manner adequate to provide for the collection of the Excluded Liabilities, taking into account the assets and other liabilities of the Liquidating Trust (which in the case of the Excluded Liabilities arising pursuant to Section 5.14 and Section 6.1(b)(y)(ii)(B) shall include the provision for the payment thereof by means of an irrevocable letter of credit, a holdback of a portion of the Purchase Price, a first priority, perfected lien in collateral with adequate assurances as to value or comparable security or other comparable arrangements reasonably acceptable to Buyer; provided, however, that (i) such provision in the case of liabilities arising pursuant to Section 5.14 shall provide for the payment thereof in full, (ii) such provision shall neither limit the liability of Seller and the Liquidating Trust not otherwise limited by this Agreement nor shall such provision enlarge any liability of Seller and the Liquidating Trust otherwise limited by this Agreement or otherwise, and (iii) such provision shall be $67.5 million)." Section 5. Amendment to Tax Matters. A. Section 6.1(b) of the Stock Purchase Agreement is amended to be and read in its entirety as follows: "Seller and the Liquidating Trust shall, and hereby do, indemnify and hold Buyer, the Company and the Company's subsidiaries harmless against (x) the failure to be true in any material respect of any representations and statements of fact included in the Ruling Request, to the extent that they relate to the Seller or its subsidiaries, and (y) (i) Taxes of Seller or its subsidiaries or any reduction in losses, deductions, credits or similar items of tax benefit but excluding any reduction in the tax basis of assets ("Tax Benefits") of the Company or any of its subsidiaries arising from the transfer, as contemplated by Section 3.16 hereof, to the Company and its subsidiaries of assets and liabilities of Seller and certain of its subsidiaries and the stock of other subsidiaries of Seller and (ii) any Taxes of Seller or its subsidiaries or any reduction in Tax Benefits of the Company or its subsidiaries arising out of or relating to (A) the Toys Shares or the Toys Transaction, (B) the federal examination of the disposition during March and July of 1988 by Seller or certain of its subsidiaries of shares of Toys Common Stock in connection with the conversion or redemption of certain debentures, and (C) the sale or other disposition by Seller of any Toys Common Stock or stock or assets of the Seller or its subsidiaries subsequent to the Closing not acquired or owned subsequent to the Closing by Buyer, Company or Company's subsidiaries. Buyer and the Company shall, and hereby do, indemnify Seller and the Liquidating Trust harmless against any and all other Taxes imposed on the Seller, the Company, or any subsidiaries of the Company, whether or not such Taxes arose prior or subsequent to the Closing, except Taxes imposed upon Seller or subsidiaries of Seller subsequent to Closing that are attributable to any taxable period after the Closing Date. For purposes of this subsection, (x) the amount of any Tax indemnified pursuant hereto shall be equal to the excess of (A) the liability for Taxes of the entity (or group) liable for such Tax for any taxable period or periods affected by the relevant item, over (B) the liability for Taxes of such entity (or group) for such taxable period or periods calculated without regard to the item with respect to which the indemnification is made, and (y) the taxable period to which any Tax is deemed to be attributable will be determined by treating the period ending on the Closing Date as a separate taxable period for purposes of all Taxes." B. Section 6.1 of the Stock Purchase Agreement is amended to add a new subsection (g) which shall be and read in its entirety as follows: "(g) Seller agrees that if as the result of any audit adjustment made by any taxing authority with respect to any Taxes against which Buyer and the Company have indemnified Seller and the Liquidating Trust, Seller receives a Tax Benefit, then Seller or the Liquidating Trust shall pay to Buyer the amount of such Tax Benefit within 15 days of (i) the filing of a return in which such Tax Benefit is actually utilized to reduce any liability for Taxes, or (ii) the receipt of any refund of Taxes arising out of the application of such Tax Benefit." C. Section 6.2(a) of the Stock Purchase Agreement is amended to be and read in its entirety as follows: "Buyer shall have the right, at its own expense, to control any audit or examination by any Taxing Authority, to initiate any claim for refund or file any amended Tax Return, and to contest, resolve and defend against any assessment, notice of deficiency, or other adjustment or proposed adjustment of Taxes for all taxable periods of the Company and its subsidiaries; provided, however, that Seller (or the Liquidating Trust or any agent or successor thereof) shall have the exclusive right to contest, resolve or defend against any assessment, notice of deficiency, or other proposed adjustment of Taxes with respect to any liability for Tax for which Seller is liable pursuant to subsection 6.1(b) hereof, including the right to pay any such Tax to the relevant taxing authority and thereafter to pursue appropriate administrative or judicial action for a refund. No party shall have the right to agree to any assessment, deficiency, settlement, or other adjustment of Taxes that would adversely affect the interest of another party without such other party's written consent, which consent shall not be unreasonably withheld." Section 6. Amendment to Conditions to Consummation of the Stock Purchase. A. Section 7.2 of the Stock Purchase Agreement is amended as follows: (i) Seller hereby waives the condition set forth in Section 7.2(b), insofar as it relates to the representation and warranty set forth in Section 4.3. (ii) Seller hereby waives the condition set forth in Section 7.2(d). (iii) Seller hereby waives the condition set forth in Section 7.2(e). B. Section 7.3 of the Stock Purchase Agreement is amended as follows: (i) Buyer hereby waives the condition set forth in Section 7.3(a). (ii) Buyer hereby waives the condition set forth in Section 7.3(b), except insofar as it relates to the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.15, 3.16, 3.17 and 3.19. (iii) Section 7.3(d) is amended to be and read as follows: "Buyer shall have available to it for draw the financing contemplated by the Commitment Letter, a copy of which has previously been provided to Seller, and all conditions to the obligations of the lenders thereunder shall have been satisfied or waived, substantially on the terms contemplated thereby; provided, however, that Buyer shall not be entitled to rely on this condition as grounds for not consummating the Stock Purchase if Buyer shall not have complied with Section 5.9(b) of the Stock Purchase Agreement." (iv) Section 7.3(e) is amended to be and read as follows: "Either (i) Seller shall have received the IRS Ruling in a form reasonably satisfactory to Buyer, to the effect that the Toys Transaction will not give rise to the recognition by Seller or its shareholders of a material amount of taxable income (an "Acceptable Ruling"), and the representations made by Seller and Toys in the request for such private letter ruling (and any supplements or amendments thereto) shall be true and correct in all material respects or (ii) in the event that the IRS Ruling has not been received by the Closing Date, Seller shall have covenanted pursuant to an agreement reasonably satisfactory to Buyer that it will not consummate the Toys Transaction or any other transaction involving the direct or indirect disposition of all or any portion of the Toys Shares (whether or not intended to be a tax-free reorganization with respect to Seller) within the taxable year of Seller in which the Closing occurs except with the consent of Buyer, or pursuant to an Acceptable Ruling; and" (v) Section 7.3(f) is amended to delete the text following the semicolon therein and to insert a period in place of such semicolon. Section 7. Amendment to Termination and Abandonment. A. Section 8.1(b) of the Stock Purchase Agreement is amended by deleting all text that follows "by Seller or Buyer at any time after January 31, 1995" and nothing shall be added in lieu thereof. B. Section 8.1(c) of the Stock Purchase Agreement is amended by deleting the entire text of Section 8.1(c) and nothing shall be added in lieu thereof. Section 8. Amendment to Entire Agreement; Assignment; Alternate Structure. Section 9.4 of the Stock Purchase Agreement is amended by adding the following at the end thereof: "Subject to the foregoing, as of the Closing, Buyer and any Designees may assign all of their respective rights and obligations under this Agreement to a newly formed entity ("Holding Company") owned by Buyer and other persons or entities in such manner and proportions that neither E.M. Warburg, Pincus & Co., Inc. nor any of its affiliates shall be treated as a single employer, within the meaning of Section 4001(b)(1) of ERISA, with Holding Company. Thereafter, all references in this Agreement to Buyer and the Designees, other than such references in Section 5.11 or this Section 9.4 shall be deemed to refer to Holding Company." Section 9. Amendment to Expenses. Section 9.10 of the Stock Purchase Agreement is amended to be and read in its entirety as follows: "Whether or not this Agreement and the transactions contemplated hereby are consummated, all costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses. Notwithstanding the foregoing, if this Agreement is terminated pursuant to Section 8.1 following the occurrence of one of the following: (i) a material breach by Seller; (ii) the failure to be satisfied of any of the conditions which are set forth in Sections 7.3(b), (c) or (e)(ii); or (iii) the failure to be satisfied of the condition set forth in Section 7.2(f) by December 14, 1994, then, so long as Buyer is not in material breach of its obligations hereunder, Seller shall, promptly following such termination, reimburse Buyer for its reasonable, documented out-of-pocket expenses, paid, incurred or assumed, by or on behalf of Buyer or its affiliates (including, without limitation, fees and expenses of its advisors, financing sources, counsel and accountants) in connection with or relating to the transactions contemplated hereby, provided, however, that Buyer has not been previously reimbursed for such expenses and that the amount payable under this Section 9.10 shall not exceed $5.625 million. Section 10. No Further Amendment. Except as otherwise provided herein, the Stock Purchase Agreement shall remain unchanged and in full force and effect. Section 11. Effect of Amendment. From and after the execution of this Amendment by the parties hereto, any references to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby. Section 12. Governing Law. This Amendment shall be governed by, enforced under and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule thereof. Section 13. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Section 14. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and shall in no way be construed to define, limit, describe, explain, modify, amplify, or add to the interpretation, construction or meaning of any provision of, or scope or intent of, this Amendment or the Stock Purchase Agreement nor in any way affect this Amendment or the Stock Purchase Agreement. In Witness Whereof, each of the undersigned has caused this Amendment to be signed by its duly authorized officer as of the date first above written. Petrie Stores Corporation By: /s/ Allan Laufgraben Name: Allan Laufgraben Title: CEO--President WP Investors, Inc. By: /s/ Errol M. Cook Name: Errol M. Cook Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----