THIRD AMENDMENT
TO
LONG TERM CREDIT AGREEMENT
THIS AMENDMENT (the "Amendment") dated as of December 23, 1996 (the
"Third Amendment Effective Date"), is made and entered into among XXXXXXXXXX
XXXX & CO., INCORPORATED (the "Company") and the banks listed on the signature
pages hereof (herein, together with their respective successors and assigns,
collectively called the "Banks" and individually called a "Bank").
WHEREAS the Banks are parties to that certain Long Term Credit
Agreement dated as of September 15, 1994, as amended as of March 19, 1996 and
September 6, 1996 (the "Long Term Credit Agreement"), among Xxxxxxxxxx Xxxx &
Co., Incorporated, various banks named therein, The First National Bank of
Chicago, as Documentary Agent, The Bank of Nova Scotia, as Administrative Agent,
The Bank of New York, as Negotiated Loan Agent, and Bank of America National
Trust and Savings Association, as Advisory Agent; and
WHEREAS the Company and the Banks desire to amend the Long Term Credit
Agreement in certain respects;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS
1.1 SECTION 1.1 of the Long Term Credit Agreement is hereby amended by
adding the following definitions thereto (or in the case of the definition of
Termination Date, amending such definition to read in its entirety, as set forth
below):
"APPLICABLE MARGIN" means as to any Type of Loan, for any period set
forth below, a rate per annum, as follows:
EURODOLLAR BASE RATE LOAN
PERIOD LOAN SWING LOAN
------ ---------- ---------------
December 23, 1996
through March 31, 1997 1.50% 0.25%
April 1, 1997
through June 30, 1997 2.00% 0.75%
EURODOLLAR BASE RATE LOAN
PERIOD LOAN SWING LOAN
------ ---------- ---------------
After June 30, 1997 2.50% 1.25%
"EBITDAR" means, for any fiscal period, on a consolidated basis for
the Company and its Subsidiaries, net income, PLUS interest expense, PLUS
provision for taxes on income, PLUS depreciation and amortization expense,
PLUS rent expense, MINUS interest income, in each case, for such fiscal
period.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any fiscal period, the
consolidated capital expenditures of the Company and its Subsidiaries for
such period, as the same are (or would in accordance with GAAP be) set
forth in the consolidated statement of changes in cash flow of the Company
and its Subsidiaries for such period.
"CREDIT AGREEMENT PERCENTAGE" means a percentage corresponding to the
fraction, the numerator of which is equal to the aggregate principal of
Loans then outstanding under this Agreement, and the denominator of which
is equal to the aggregate principal amount of loans then outstanding under
this Agreement and under the Short Term Credit Agreement.
"DISPOSITION" means the sale, assignment, transfer, contribution,
conveyance, issuance or other disposition of, or granting of options,
warrants or other similar rights with respect to, any asset of the Company
or any Subsidiary, EXCLUDING, HOWEVER,(i) the sale or transfer of inventory
in the ordinary course of business,(ii) the sale or transfer of obsolete
fixtures and equipment in the ordinary course of business,(iii) the sale or
transfer of receivables pursuant to the Retail Credit Program Agreement and
other receivables agreements similar to the receivables agreements
currently in effect,(iv) the liquidation of cash equivalents in the
ordinary course of business,(v) the sale or transfer by Signature of
investment portfolio assets in the ordinary course of business,(vi) any
sale or transfer by the Company or any Subsidiary to the Company or any
other Subsidiary, (vii) the sale or transfer by Signature of fixtures,
equipment and certain hardware and software acquired after January 1, 1996
for telemarketing/customer service centers, provided that the aggregate
sale price thereof does not exceed $10,000,000, and (viii) any sale or
transfer or related series of sales or transfers in which the aggregate Net
Proceeds shall be less than $50,000.
"NET PROCEEDS" means the aggregate amount of cash and readily
marketable cash equivalents, and all other proceeds (excluding rental
income) received by the Company or any
Subsidiary in connection with any Disposition (including, when received by
the Company or any Subsidiary, any principal installments with respect to
installment sales contracts or purchase money indebtedness of purchasers or
other similar deferred consideration), LESS the amount (as estimated by the
Company in good faith) of:
(i) all reasonable costs of the Company or such Subsidiary
(excluding any rental expense) associated with such Disposition,
(ii) all amounts paid by the Company or such Subsidiary in
retiring or satisfying any Lien on such asset which is required to be
retired or satisfied in connection with such Disposition,
(iii) in the case of a Disposition of assets of Signature, all
indebtedness of Signature which is required to be repaid in connection
with such Disposition,
(iv) any and all taxes (including Federal and state income or
gross receipts taxes) arising from or related to such Disposition,
(v) solely with respect to Dispositions of real property (and the
related fixtures and equipment) on which retail stores or distribution
centers are located, any amounts which the Company expends (or
reasonably estimates it will expend in a written notice promptly
delivered to the Administrative Agent and each Bank) for the purchase
and/or construction and fixturing of a replacement or substitute
facility in the geographic area in which such real property is
situated, PROVIDED that the agreement or letter of intent pursuant to
which such replacement or substitute facility is to be acquired is
entered into prior to or within 3 Business Days after the Disposition
of such real property and that such agreement or such letter of intent
is not subsequently cancelled prior to the acquisition or substantial
completion of such replacement or substitute facility, and
(vi) proceeds (other than cash or cash equivalent proceeds) with
respect to properties (and the related fixtures and equipment) listed
on SCHEDULE IX.
"SIGNATURE" means collectively Signature Financial/Marketing, Inc.
and/or its Subsidiaries.
"SIGNATURE CREDIT AGREEMENT" means the Credit Agreement dated as of
September 27, 1996, as amended and restated as of October 21, 1996, among
Signature Financial/Marketing, Inc.,
various Banks, The Bank of New York as Documentation Agent, and The Bank of
Nova Scotia, as Administrative Agent, as the same may be further amended or
modified from time to time.
"TERMINATION DATE" means, with respect to each Bank, the earlier to
occur of (i) February 15, 1998, or (ii) such other date on which the
Aggregate Commitments shall terminate pursuant to SECTION 5 or 13.2 or be
reduced to zero pursuant to SECTION 2.6 and, if in any case such day is not
a Business Day, the next succeeding Business Day. Notwithstanding any
provision herein to the contrary, after the Third Amendment Effective Date,
the Company shall not be entitled to request an extension of the
Termination Date pursuant to SECTION 2.7.
"THIRD AMENDMENT EFFECTIVE DATE" means December 23, 1996.
1.2 SECTION 2 of the Long Term Credit Agreement is hereby amended by
adding the following SECTION 2.8 thereto:
2.8. MANDATORY PREPAYMENTS. After the Third Amendment Effective
Date, following receipt by the Company or any Subsidiary of any Net
Proceeds from any Disposition, the Company shall make a mandatory
prepayment of the Loans, such prepayment to be equal to the Credit
Agreement Percentage of 80% of such Net Proceeds (the "Net Proceeds Share")
or the aggregate unpaid principal amount of all Loans then outstanding,
whichever is less; PROVIDED, HOWEVER, that up to $20,000,000 of Net
Proceeds received after the Third Amendment Effective Date by the Company
or its Subsidiaries from all Dispositions shall not be subject to this
SECTION 2.8. Each prepayment pursuant to this SECTION 2.8 shall be made
within 3 Business Days of the date upon which the amount of the Net
Proceeds which have not theretofore been applied by the Company to
prepayments under this Agreement or the Short Term Credit Agreement shall
equal or exceed $1,000,000. Concurrently with any prepayment required
under this SECTION 2.8 the Aggregate Commitment shall automatically be
reduced by the amount of such Net Proceeds Share (such reduction to be
prorata among the Banks according to their respective Commitments).
1.3 SECTION 4 of the Long Term Credit Agreement is hereby amended by
adding the following SECTION 4.6 thereto:
4.6. SUSPENSION PERIOD FOR NEGOTIATED LOANS. Notwithstanding any
provision of this Agreement to the contrary, commencing on and after the
Third Amendment Effective Date until the Termination Date, the Company
shall not request and no Bank shall make Negotiated Loans.
1.4 SECTION 6.1 of the Long Term Credit Agreement is hereby amended so
that SECTION 6.1 through SECTION 6.1(b) shall read in its entirety as follows:
6.1 INTEREST RATES. The Company hereby promises to pay interest on
the unpaid principal amount of each Loan for the period commencing on the
Funding Date of such Loan until such Loan is paid in full, as follows:
(a) if such Loan is a Base Rate Loan or a Swing Loan, at a rate
per annum equal to the Base Rate from time to time in effect, plus on
and after the Third Amendment Effective Date, the Applicable Margin;
(b) if such Loan is a Eurodollar Loan, at a rate per annum during
each Interest Period equal to the Eurodollar Rate applicable to such
Interest Period, plus (i) prior to the Third Amendment Effective Date,
0.375% plus any Eurodollar Margin Increment, and (ii) on and after the
Third Amendment Effective Date, the Applicable Margin;
1.5 SECTION 6.2 of the Long Term Credit Agreement is deleted as of the
Third Amendment Effective Date (it being understood, however, that the
provisions of such section shall survive as to any additional interest accruing
prior to the Third Amendment Effective Date).
1.6 SECTION 6.3 of the Long Term Credit Agreement is amended to read
in its entirety as follows:
6.3 INTEREST PAYMENT DATES. Accrued interest on each Loan shall be
payable on the last day of the Interest Period therefor and on each
Conversion date related to such Loan; PROVIDED, HOWEVER, that accrued
interest on each Eurodollar Loan which has an Interest Period of 6 months
shall be payable on the 90th day of such Interest Period or, if such day is
not a Business Day, on the next succeeding Business Day. After maturity of
any Loan, accrued interest on such Loan shall be payable on demand.
1.7 SUPPLEMENTAL COMMITMENT FEE. SECTION 6 of the Long Term Credit
Agreement is amended by adding the following SECTION 6.10 thereto:
6.10 SUPPLEMENTAL COMMITMENT FEE. The Company agrees to pay to the
Administrative Agent for the account of each Bank (PRO RATA in accordance
with the average daily amount of the Unused Commitment of such Bank),
within fifteen days of the last day of December 1996, and thereafter within
fifteen days of the last day of each calendar quarter of each year until
the Termination Date for such Bank, and on the Termination
Date for such Bank, a commitment fee which, when added to the fees payable
under SECTIONS 6.5 and 6.6 in respect of the corresponding period for which
the commitment fee under this SECTION 6.10 is computed, shall equal a
commitment fee computed at the rate of 0.375% per annum on the average
daily amount of the Aggregate Commitment minus the aggregate principal
amount of all Loans then outstanding during the quarterly or other period
preceding the date of such payment. Such commitment fee shall commence
accruing on the Third Amendment Effective Date and shall be payable in
arrears. Commitment fees shall be payable regardless of the occurrence of
an Event of Default or an Unmatured Event of Default.
1.8 SECTION 11.1(b) of the Long Term Credit Agreement is amended to
read in its entirety as follows:
(b) INTERIM REPORTS.
(i) Within 10 days after each fiscal month, a flash report containing
(x) the total retail sales of the Company and its Subsidiaries (other than
Signature) for the fiscal month then ended and for the corresponding fiscal
month of the previous Fiscal Year, (y) the aggregate reinvestment by the
Company of borrowings under its loan agreements and uncommitted lines in
cash equivalents as of the end of such month, and (z) the aggregate
principal amount of loans as of the end of such month which are then
outstanding under the Company's revolving loan agreements (including this
Agreement), any uncommitted lines of the Company, and any loan agreement of
Signature, together with a breakdown thereof,
(ii) Within 30 days after each fiscal month (or in the case of the
last fiscal month in a Fiscal Year, within 60 days after such fiscal
month), (A) a copy of the unaudited internally prepared (x) consolidated
financial statements of the Company and its Subsidiaries (but accounting
for Signature on the equity method) consisting of at least a balance sheet
as at the close of such fiscal month, statements of earnings for such
fiscal month and for the period from the beginning of such Fiscal Year to
the close of such fiscal month, and a statement of cash flows for the
period from the beginning of such Fiscal Year to the close of such fiscal
month, and (y) consolidated financial statements of Signature, consisting
of at least a balance sheet of Signature as at the close of such fiscal
month and statements of earnings of Signature for such fiscal month and for
the period from the beginning of such Fiscal Year to the close of such
fiscal month, and (B) a report setting forth the cumulative amount of all
Net Proceeds received after the Third Amendment Effective Date, together
with the aggregate amount of prepayments and Commitment reductions related
thereto, and
(iii) within 60 days after each Fiscal Quarter (except the last Fiscal
Quarter in a Fiscal Year), a copy of the unaudited consolidated financial
statements of the Company and its Subsidiaries prepared in accordance with
GAAP (subject to normal year end audit adjustments) consisting of at least
a balance sheet as at the close of such Fiscal Quarter, statements of
earnings for such Fiscal Quarter and for the period from the beginning of
such Fiscal Year to the close of such Fiscal Quarter, and a statement of
cash flows from the beginning of such Fiscal Year to the close of such
Fiscal Quarter.
1.9 SECTION 11.3 of the Long Term Credit Agreement is hereby amended
by adding thereto a second paragraph as follows:
Notwithstanding the foregoing, the provisions of the first paragraph
of this SECTION 11.3 shall not apply to the end of the Fiscal Year ending
December 28, 1996 or the Fiscal Quarters ending March 29, 1997 or June 28,
1997; it being understood (and the Company hereby agrees) that (i) as of
the end of the Fiscal Year ending December 28, 1996, and of its Fiscal
Quarters ending March 29, 1997 and June 28, 1997, it will not permit the
Consolidated Shareholder's Equity to be less than $450,000,000; and (ii)
after June 28, 1997 the provisions of the first paragraph of this
SECTION 11.3 shall reapply to the end of each Fiscal Year or Fiscal
Quarter, as the case may be, which ends thereafter (i.e., the required
Consolidated Shareholder's Equity for the Fiscal Quarter ending
September 27, 1997 shall be based on the Ratio of Earnings to Fixed Charges
for the Fiscal Quarter ending June 28, 1997).
1.10 SECTION 11.4 of the Long Term Credit Agreement is hereby amended
to read in its entirety as follows:
11.4 RATIO OF DEBT TO TOTAL CAPITALIZATION. Not permit the Debt of
the Company and its Restricted Subsidiaries at the end of any Fiscal
Quarter to exceed the percentage of Total Capitalization applicable to such
Fiscal Quarter as follows:
Percentage of Total
Fiscal Quarter End Capitalization
------------------ -------------------
December 28, 1996 70%
March 29, 1997 75%
June 28, 1997 75%
September 27, 1997 60%
January 3, 1998 50%
1.11 SECTION 11.18 of the Long Term Credit Agreement is hereby amended
by adding the following proviso at the end of the section:
; provided, however, in the case of the Fiscal Quarters ending
March 29, 1997 and June 28, 1997, "75%" shall replace "60%" in clause (a)
above; and in the case of the Fiscal Quarter ending December 28, 1996,
"70%" shall replace "50%" in clause (b) above.
1.12 SECTION 11.20 of the Long Term Credit Agreement is hereby amended
to read in its entirety as follows:
11.20 EBITDAR; FIXED CHARGE RATIO. (a) EBITDAR. As of the end of any
Fiscal Quarter set forth below, not permit EBITDAR of the Company and its
Subsidiaries for the 4 consecutive Fiscal Quarters then ending to be less
than the amount applicable to the end of such Fiscal Quarter as follows:
4-Fiscal Quarters Ended EBITDAR
----------------------- --------
December 28, 1996 $190,000,000
March 29, 1997 $220,000,000
June 28, 1997 $190,000,000
(b) RATIO OF EARNINGS TO FIXED CHARGES. Not permit, for the Fiscal
Quarters ending September 27, 1997 and January 3, 1998, the Ratio of
Earnings to Fixed Charges determined as of the last day of each Fiscal
Quarter to be less than 1.10:1.
1.13 SECTION 11 of the Long Term Credit Agreement is hereby amended by
adding the following SECTION 11.21 thereto:
11.21. CAPITAL EXPENDITURES. Not permit Consolidated Capital
Expenditures in any Fiscal Quarter ending on or after December 23, 1996, to
exceed $30,000,000.
1.14 SECTION 11 of the Long Term Credit Agreement is amended by
adding the following SECTION 11.22 thereto:
11.22. LECHMERE GUARANTY. Cause the Liabilities to be guaranteed by
Lechmere, Inc. ("Guarantor") pursuant to a guaranty substantially in the
form of EXHIBIT N ("Guaranty").
1.15 SECTION 11 of the Long Term Credit Agreement is amended by
adding the following SECTION 11.23 thereto:
11.23 LIMITATION ON SIGNATURE DEBT. Not permit Signature to incur
or permit to exist any Indebtedness for Borrowed Money, except (i)
Indebtedness for Borrowed Money which in the aggregate (including
Indebtedness for Borrowed Money under the Signature Credit Agreement) does
not exceed $200,000,000, and (ii) Indebtedness for Borrowed Money of
Signature to the Company or its other Subsidiaries.
1.16 EVENTS OF DEFAULT. SECTION 13.1(e) of the Long Term Credit
Agreement is amended to read in its entirety as follows:
(e) SPECIFIED NON-COMPLIANCE WITH THIS AGREEMENT. Failure by the
Company to comply with or to perform its obligations under SECTIONS 11.3,
11.4, 11.5, 11.6, 11.17, 11.18, 11.20, or 11.21 of this Agreement.
1.17 SECTION 13.1 of the Long Term Credit Agreement is further
amended by adding thereto SECTION 13.1(l) as follows:
(l) GUARANTOR DEFAULTS. Guarantor fails in any material respect to
perform or observe any term, covenant or agreement in its Guaranty; or the
Guaranty of Guarantor is for any reason partially (including with respect
to future advances) or wholly revoked or invalidated, or otherwise ceases
to be in full force and effect, or Guarantor or any other Person contests
in any manner the validity or enforceability thereof or denies that it has
any further liability or obligation thereunder.
1.18 SCHEDULE VIII to the Long Term Credit Agreement is hereby amended
as set forth in SCHEDULE VIII hereto.
1.19 EXHIBIT I to the Long Term Credit Agreement shall be revised in
form and substance acceptable to the Administrative Agent and the Documentary
Agent so as to reflect the foregoing amendments.
1.20 The Long Term Credit Agreement is further amended by adding
SCHEDULE IX and EXHIBIT N in the form attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to the Agents and the Banks
as of the Third Amendment Effective Date:
2.1 NO DEFAULT. No Event of Default or Unmatured Event of Default
has occurred and is continuing which will not be cured by this Amendment
becoming effective. No Event of Default or Unmatured Event of Default will
exist after giving effect to this Amendment.
2.2 DUE EXECUTION. The execution, delivery and performance of this
Amendment, (i) are within the Company's corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) do not require any
governmental approval which has not been previously obtained (and each such
governmental
approval that has been previously obtained remains effective), (iv) do not and
will not contravene or conflict with any provision of law, or of any judgment,
decree or order, or of the Company's charter or by-laws, and (v) do not and will
not contravene or conflict with, or cause any Lien to arise under, any provision
of any agreement binding upon the Company, any Subsidiary or any of their
respective properties.
2.3 VALIDITY. The Long Term Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
2.4 LONG TERM CREDIT AGREEMENT. All representations and warranties
of the Company contained in SECTIONS 10.1, 10.2, 10.3, 10.4(a), 10.7, 10.10,
10.11, 10.12, 10.15 and 10.18 of the Long Term Credit Agreement are true and
correct as of the date hereof with the same effect as though made on the date
hereof.
2.5 NEGOTIATED LOANS; RATABILITY OF LOANS, ETC. As of the date of
this Amendment, all Loans of all Banks are ratable (by principal and by Group)
according to the amount of each Bank's Commitment; and no Negotiated Loans are
outstanding.
ARTICLE III
GENERAL
-------------
3.1 EXPENSES. The Company agrees to pay all fees and expenses of
XxXxxxxxx, Will & Xxxxx as counsel to the Documentary Agent, the Administrative
Agent and the Negotiated Loan Agent in connection with the preparation,
execution and delivery of this Amendment.
3.2 EFFECTIVENESS. Article I of this Amendment shall become
effective as of the Third Amendment Effective Date, subject to receipt by the
Documentary Agent of the following, each duly executed and dated the Third
Amendment Effective Date or such other date satisfactory to the Documentary
Agent, in form and substance reasonably satisfactory to the Documentary Agent:
(a) AMENDMENT. Counterparts of this Amendment whether on the same or
different counterparts, executed by the Company and the Required Banks (or
in the case of any Bank as to which an executed counterpart shall not have
been so received, telegraphic, telefax, telex or other written confirmation
of execution of a counterpart hereof by such Bank);
(b) AMENDMENT FEE. Evidence of payment from the Company to the
Administrative Agent of a fee payable to the Administrative Agent for the
account of each Bank for which
the Documentary Agent receives by 12:00 noon (New York City time) on
December 23, 1996 an executed counterpart hereof (including by fax), such
fee to be equal to 0.25% of the amount of such Bank's Commitment and to be
distributed by the Administrative Agent to each such Bank upon the
effectiveness of this Amendment;
(c) GUARANTY. The Guaranty executed by the Guarantor;
(d) RESOLUTIONS. Copies of the resolutions of the board of
directors of each of the Company and the Guarantor authorizing the
transactions contemplated by this Amendment and the Guaranty, certified as
of the Third Amendment Effective Date by the Secretary or an Assistant
Secretary (or in the case of the Guarantor, the Clerk or Assistant Clerk)
of the Company and the Guarantor;
(e) INCUMBENCY. A certificate of the Secretary or Assistant
Secretary (or in the case of the Guarantor, the Clerk or Assistant Clerk)
of each of the Company and the Guarantor certifying the names and true
signatures of the officers of the Company or the Guarantor authorized to
execute, deliver and perform, as applicable, this Amendment and the
Guaranty;
(f) OPINION OF COUNSEL FOR THE COMPANY AND THE GUARANTOR. A letter
from Altheimer & Xxxx, counsel for the Company and the Guarantor, addressed
to the Agents and the Banks substantially in the form attached hereto; and
(g) EXTENSION OF SIGNATURE CREDIT AGREEMENT. Evidence of the
extension to August 29, 1997 of the maturity date of loans under the
Signature Credit Agreement.
(h) AMENDMENT OF OTHER CREDIT AGREEMENT. Evidence of (i) the
extension to August 29, 1997 of the termination date under the Credit
Agreement dated as of October 4, 1996 among the Company, various lenders,
The Bank of New York, as Administrative Agent, and The Bank of Nova Scotia,
as Documentation Agent, and (ii) the amendment of the covenants therein to
conform to the Long Term Credit Agreement as amended hereby.
3.3 DEFINITIONS. Except as otherwise herein specifically defined, all
the capitalized terms contained herein shall have the meaning ascribed to such
terms in the Long Term Credit Agreement.
3.4 REAFFIRMATION. Except as hereinabove expressly provided, all the
terms and provisions of the Long Term Credit Agreement shall remain in full
force and effect and all references therein and in any related documents to the
Long Term Credit Agreement shall henceforth refer to the Long Term Credit
Agreement
as amended by this Amendment. This Amendment shall be deemed incorporated into,
and a part of, the Long Term Credit Agreement.
3.5 SUCCESSORS. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
3.6 GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Illinois.
3.7 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same agreement.
Delivered at Chicago, Illinois as of the day, month and year first
above written.
XXXXXXXXXX XXXX & CO., INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
ACCEPTED AND APPROVED:
THE FIRST NATIONAL BANK OF CHICAGO,
in its individual capacity and in its
capacity as Documentary Agent
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
THE BANK OF NEW YORK, in its
individual capacity and in its capacity
as Negotiated Loan Agent
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
THE BANK OF NOVA SCOTIA, in its
individual capacity and in its
capacity as Administrative Agent
By: /s/ X.X. Xxxxxxx
-----------------------------
Name: X.X. Xxxxxxx
Title: Senior Manager Finance & Administration
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, in its
individual capacity and in its
capacity as Advisory Agent
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
CIBC INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxxx
Title: Director, CIBC Wood Gundy Securities Corp., AS AGENT
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx SVP
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Deputy General Manager
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Xxxx Xxx Xxxxx
-------------------------------
Name: Xxxx Xxx Xxxxx
Title: Vice President and Group Head
BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By: /s/ Seiichiro Ino
-------------------------------
Name: Seiichiro Ino
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Deputy General Manager
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
THE SAKURA BANK, LTD.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Senior Manager
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant General Manager
SWISS BANK CORPORATION, CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Director Banking Finance Support, N.A.
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Reading
-----------------------------------------------
Name: Xxxxx X. Xxxxxx Xxxxxx Reading
Title: Executive Director Executive Director
Restructuring Credit Risk Management, N.A.
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Asst. Vice President
UNION BANK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title:
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Division Executive
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
THE XXXXXX TRUST AND BANKING CO., LTD.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Deputy General Manager
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
INSTITUTO BANCARIO SAN PAOLO DI TORINO, S.P.A.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Deputy General Manager
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: First Vice President
KREDIETBANK N.V.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
UNION BANK OF SWITZERLAND - NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
BANCA DI ROMA, S.P.A.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and Deputy Manager
COMERICA BANK
By: /s/ Xxxxx X. Light
-------------------------------
Name: Xxxxx X. Light
BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
SCHEDULE VIII
FINDER'S LIST
Schedule VIII to the Long Term Credit Agreement is hereby amended to
add the following thereto:
"APPLICABLE MARGIN" - used in SECTION 6.1.
"CONSOLIDATED CAPITAL EXPENDITURES" - used in SECTION 11.21.
"CREDIT AGREEMENT PERCENTAGE" - used in SECTION 2.8.
"DISPOSITION" - used in the definition of Net Proceeds and SECTION
2.8.
"EBITDAR" - used in SECTION 11.20.
"GUARANTOR" - used in SECTIONS 11.22 and 13.1(l).
"GUARANTY" - used in SECTIONS 11.22 and 13.1(l).
"NET PROCEEDS" - used in SECTION 2.8.
"SIGNATURE" - used in the definition of Net Proceeds and
SECTIONS 11.1(b) and 11.23.
"SIGNATURE CREDIT AGREEMENT" - used in SECTION 11.23.
"THIRD AMENDMENT EFFECTIVE DATE" - used in SECTIONS 2.8, 4.6, 6.1,
6.9, and 6.10.
SCHEDULE IX
(List of Locations referred to in clause (vi) of
definition of "Net Proceeds")
1. Former catalog house and warehouse situated at Monroe and Washington
streets Baltimore, MD.
2. Former administration center situated at Shadeland and Widget Lane, Walnut
Creek, CA.
3. Former Xxxxxxxxx Xxxx retail store at 000-00 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx,
XX.
4. Distribution Center situated at Schnelling and Xxxxx, St. Xxxx, MN.
5. Retail store situated at Lafayette Square in Indianapolis, IN.
6. Retail store situated at Washington Square in Indianapolis, IN.
7. Retail store situated at Castleton Square in Indianapolis, IN.
8. Retail store situated at Greenwood Mall, Greenwood, IN.
If any one or more of the above listed properties is owned by a Subsidiary of
the Company and comprises substantially all the assets of such Subsidiary, the
disposition of the stock of such Subsidiary shall be treated as the Disposition
of the properties owned by such Subsidiary for the purpose of applying clause
(vi) of the definition of "Net Proceeds" contained in Section 1.1 of this
Agreement.
