Exhibit 4(a)
FIRST AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT AND CONSENT UNDER
AMENDED AND RESTATED PARENT GUARANTY
This First Amendment to Amended and Restated Loan Agreement and Consent
Under Amended and Restated Parent Guaranty (the "First Amendment and Consent")
is made as of the 5th day of August, 2005 by and among
XXX RADIO AND TELEVISION, INC., an Ohio corporation ("Xxx Radio"), as
lead borrower (in such capacity, "Lead Borrower"), for itself and the
other Borrowers being
XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation ("Xxxxx"),
XXX ALABAMA, INC., an Ohio corporation ("Xxx Alabama"),
XXX KANSAS, INC., a Kansas corporation ("Xxx Kansas"),
XXXXXXXXX.XXX, INC., an Ohio corporation ("Xxx Internet"), and
STEREO TOWN, INC., a Georgia corporation ("Stereo Town"); and
XXX STORES CORPORATION, a Delaware corporation (the "Parent"); and
the LENDERS party hereto; and
FLEET RETAIL GROUP, LLC (f/k/a Fleet Retail Group, Inc.), as agent for
the Lenders, a Delaware corporation, having a place of business at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS, the Lead Borrower, the other Borrowers, the Agent, the
Lenders, and the Syndication Agent have entered into an Amended and Restated
Loan Agreement dated as of September 14, 2004 (as amended and in effect, the
"Loan Agreement"); and
WHEREAS, the Parent has executed and delivered to the Agent and the
Lenders an Amended and Restated Parent Guaranty dated as of September 14, 2004
(the "Parent Guaranty"),
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pursuant to which the Parent guaranteed the payment and performance of all
Obligations (as therein defined); and
WHEREAS, the Borrowers, the Agent, the Parent, the Lenders, and the
Syndication Agent have agreed to amend certain provisions of the Loan Agreement
and to consent to certain transactions which are otherwise prohibited under the
Parent Guaranty, all as set forth herein.
NOW THEREFORE, it is hereby agreed as follows:
1. Amendments to Loan Agreement.
a. Definitions: All capitalized terms used herein and not otherwise
defined shall have the same meaning herein as in the Loan
Agreement.
b. Amendments to Article 9. The provisions of Article 9 of the Loan
Agreement are hereby amended as follows:
(A) The provisions of Section 9.05 of the Loan Agreement are
hereby amended by deleting the word "and" at the end of
Section 9.05(d), by deleting the period at the end of
Section 9.05(e) and substituting "; and" in its stead, and
adding the following new clause (f) to Section 9.05:
(f) Loans or dividends to the Parent for the purpose of the
Parent's purchasing investments in readily marketable,
direct obligations of the Government of the United
States of America or direct obligations of any federal
agency which obligations represent the full faith and
credit of the United States of America or senior debt
obligations of the Federal Home Loan Bank System, for a
purchase price (excluding accrued interest on such
obligations not then due and payable by the obligor) not
to exceed $100,000,000, which are callable at par on or
before May 31, 2007; provided that the aggregate
principal amount of all such investments held by the
Parent at any one time shall not exceed $100,000,000,
and further provided that such loans and dividends shall
not exceed 10% of the aggregate purchase price of each
such investment.
(B) The provisions of Section 9.06 of the Loan Agreement are
hereby amended by deleting the word "and" at the end of
Section 9.06(h), by deleting the period at the end of
Section 9.06(i) and substituting "; and" in its stead, and
adding the following new clause (j) to Section 9.06:
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(j) loans by the Borrowers to the Parent permitted by
Section 9.05(f).
2. Consent Under Parent Guaranty. Notwithstanding limitations contained in
Paragraph 14(g) of the Parent Guaranty, the Agent and the Required
Lenders hereby consent to the following transactions:
a. The incurrence by the Parent of purchase money Indebtedness in
connection with the acquisition of investments pursuant to clause
(d) hereof in an amount not to exceed 100% of the purchase price
of such investment, and any extensions, renewals or refinancings
thereof.
b. The granting of Liens by the Parent to secure Indebtedness
permitted pursuant to clause (a) hereof, so long as (i) any such
Lien does not extend to or cover any asset of any Loan Party
other than the investment made with the proceeds of such
Indebtedness, and (ii) such Lien secures the obligation to pay
the purchase price of such investment only.
c. The sale or other disposition of investments permitted under
clause (d) hereof for cash and for fair market value and the
repayment of Indebtedness described in clause (a) hereof with the
net proceeds of any such sale or disposition.
d. The making of investments by the Parent in readily marketable,
direct obligations of the Government of the United States of
America or direct obligations of any federal agency which
obligations represent the full faith and credit of the United
States of America or senior debt obligations of the Federal Home
Loan Bank System, for a purchase price not to exceed $100,000,000
(excluding accrued interest on such obligations not then due and
payable by the obligor), which are callable at par on or before
May 31, 2007; provided that the aggregate principal amount of all
investments permitted pursuant to this clause (d) held by the
Parent at any one time shall not exceed $100,000,000.
3. Conditions to Effectiveness. This First Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Agent:
a. This First Amendment shall have been duly executed and delivered
by the Borrowers, the Parent, the Agent and the Required Lenders.
The Agent shall have received a fully executed copy hereof and of
each other document required hereunder.
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b. All action on the part of the Borrowers and the Parent necessary
for the valid execution, delivery and performance by the
Borrowers and the Parent of this First Amendment shall have been
duly and effectively taken.
c. The Borrowers shall have reimbursed the Agent for all fees and
expenses due and payable in connection herewith, including,
without limitation, its reasonable attorneys' fees.
d. No Default or Event of Default shall have occurred and be
continuing.
e. The Borrowers and the Parent shall have provided such additional
instruments, documents, and opinions of counsel to the Agent as
the Agent and its counsel may have reasonably requested.
4. Miscellaneous.
a. Except as provided herein, all terms and conditions of the Loan
Agreement and the other Loan Documents remain in full force and
effect. The Borrowers and the Parent each hereby ratifies,
confirms, and reaffirms all of the representations, warranties
and covenants therein contained. Without limiting the generality
of the foregoing, the Borrowers and the Parent each hereby
acknowledges, confirms and agrees that all Collateral shall
continue to secure the Obligations as modified and amended
pursuant to this First Amendment, and any future modifications,
amendments, substitutions or renewals thereof.
b. This First Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so
executed and delivered, shall be an original, and all of which
together shall constitute one instrument. Delivery of an executed
counterpart of a signature page hereto by telecopy shall be
effective as delivery of a manually executed counterpart hereof.
c. This First Amendment expresses the entire understanding of the
parties with respect to the matters set forth herein and
supersedes all prior discussions or negotiations hereon. Any
determination that any provision of this First Amendment or any
application hereof is invalid, illegal or unenforceable in any
respect and in any instance shall not effect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any
other provisions of this First Amendment.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed and their seals to be hereto affixed as the date first above
written.
XXX RADIO AND TELEVISION, INC., as Lead Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXXXX & XXXXX APPLIANCES, INC., as a Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX ALABAMA, INC., as a Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX KANSAS, INC., as a Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXXXXXXXX.XXX, INC., as a Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
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STEREO TOWN, INC., as a Borrower
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX STORES CORPORATION., as Parent
By: /S/ Xxxxxxx Xxxxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
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FLEET RETAIL GROUP, LLC, as Agent
By: /S/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Vice President
FLEET RETAIL GROUP, LLC, as a Lender
By: /S/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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JPMORGAN CHASE BANK, N.A. (as successor in
interest to BANK ONE, DAYTON, N.A.), as a Lender
By: /S/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
-----------------------
Title: Account Executive
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /S/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
----------------------
Title: Vice President
----------------------
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent
By: /S/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
----------------------
Title: Vice President
----------------------
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NATIONAL CITY BANK, DAYTON, as a Lender
By:
--------------------------------
Name:
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Title:
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