Exhibit 4(a)
FIFTH AMENDMENT AND WAIVER
TO
AMENDED AND RESTATED LOAN AGREEMENT
This FIFTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED LOAN AGREEMENT
(the "FIFTH AMENDMENT") is made as of the 24th day of April, 2007 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
BANK OF AMERICA, N.A., f/k/a Fleet Retail Group, Inc., as agent for the
Lenders, a Delaware corporation, having a place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxx, XX 00000; and
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
RECITALS
--------
A. 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"). All capitalized terms used herein and not otherwise defined
shall have the same meaning herein as in the Loan Agreement.
B. The Borrowers, the Agent, the Parent, the Lenders, and the
Syndication Agent have agreed to amend certain provisions of the Loan Agreement
and to waive certain provisions of the Loan Agreement, all as set forth herein.
NOW THEREFORE, it is hereby agreed as follows:
1. AMENDMENTS TO LOAN AGREEMENT.
(a) The definition of "REAL ESTATE ADVANCE RATE" in SECTION 1.01
is hereby deleted in its entirety, and the following is
inserted in its place:
"REAL ESTATE ADVANCE RATE" shall mean fifty percent
(50%)."
1
(b) SECTION 2.01(a)(ii) shall be deleted in its entirety and the
following shall be substituted therefor:
"(ii) In no event shall the aggregate outstanding amount of
the Credit Extensions made with reference to Eligible Real
Estate at any time exceed twenty-five percent (25%) of the
Borrowing Base at such time;"
2. WAIVER. Borrower has advised the Lenders that it wishes to enter into
one or more sale and/or sale-leaseback transactions with respect to the
Real Estate parcels listed on EXHIBIT A hereto (the "RELEASED REAL
ESTATE"), and has requested that the Lenders agree to release their
security interest in and encumbrances upon the Released Real Estate.
Subject to the terms and conditions in Section 3 of this Fifth
Amendment, the Lenders hereby agree to execute such agreements as shall
be reasonably requested by Borrower in order to cause the release of
their security interests in and encumbrances upon the Released Real
Estate.
3. CONDITIONS TO EFFECTIVENESS. This Fifth Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Agent:
(a) This Fifth 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.
(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 Fifth Amendment shall
have been duly and effectively taken.
(c) 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.
(d) The Borrower shall have paid all costs and expenses of the
Lender, including, without limitation, reasonable attorneys'
fees, in connection with the preparation, negotiation,
execution, and delivery of this Agreement, all mortgage
releases and satisfactions and other documents and instruments
in connection with the transactions contemplated hereby.
4. MISCELLANEOUS. 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 Fifth Amendment,
and any future modifications, amendments, substitutions or renewals
thereof.
(a) This Fifth 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,
2
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.
(b) This Fifth 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 Fifth 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 Fifth Amendment.
[SIGNATURE PAGES FOLLOW]
3
IN WITNESS WHEREOF, the parties hereto have caused this Fifth 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
S/1
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
S/2
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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
----------------------------
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
----------------------------
NATIONAL CITY BANK, DAYTON, as a Lender
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
----------------------------
