AMENDMENT NO. 8 TO AMENDED AND RESTATED LOAN AGREEMENT
AMENDMENT AGREEMENT, dated as of January 30, 2004, to the Amended and
Restated Loan Agreement, dated as of July 31, 1995 (as the same has been or may
be further amended, supplemented, modified or restated in accordance with its
terms, the "Loan Agreement") among XXX RADIO AND TELEVISION, INC., an Ohio
corporation ("Xxx Radio"), XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation
("Xxxxx"), STEREO TOWN, INC., a Georgia corporation ("Stereo Town"), XXX KANSAS,
INC., a Kansas corporation ("Xxx Kansas"), XXX ALABAMA, INC., an Ohio
corporation ("Xxx Alabama"), XXXXXXXXX.XXX, INC., an Ohio corporation ("Xxx
Internet" and together with Xxx Radio, Xxxxx, Stereo Town, Xxx Kansas and Xxx
Alabama, each a "Borrower" and collectively, the "Borrowers"), those financial
institutions named as lenders on Schedule 2.01 thereto (the "Lenders") and FLEET
CAPITAL CORPORATION (as successor to Fleet Bank, N.A., as successor to NatWest
Bank N.A.), in its capacity as agent (the "Agent") for itself and the Lenders.
Capitalized terms used herein and not otherwise defined shall have the meanings
attributed to them in the Loan Agreement.
I. AMENDMENT TO LOAN AGREEMENT
1. Section 1.01 of the Loan Agreement is hereby amended by adding the
following defined term in the correct alphabetical order:
"PV Synfules Letter of Credit" shall mean the Letter of Credit to be
issued by Fleet Capital Corporation on or prior to January 31, 2004 in
favor of PV Synfules, LLC in an original face amount not to exceed
$9,000,000.
2. Section 2.15 of the Loan Agreement is hereby amended by (a) adding
the parenthetical "(excluding the undrawn amount of the PV Synfules Letter of
Credit)" after "Letters of Credit" appearing in the first proviso of the first
sentence thereof and (b) adding the parenthetical "(other than the PV Synfules
Letter of Credit)" after "Letters of Credit" appearing in the last sentence
thereof.
II. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective upon the execution and
delivery of counterparts hereof by the Borrowers, the Parent, the other
Guarantors, the Agent and the Required Lenders and the fulfillment of the
following conditions:
1. No unwaived event has occurred and is continuing which constitutes
a Default or an Event of Default.
2. All representations and warranties made by the Borrowers, the
Parent and the other Guarantors in this Amendment Agreement shall be true and
correct.
3. All required corporate actions in connection with the execution and
delivery of this Amendment Agreement shall have been taken, and each shall be
satisfactory in
form and substance to the Agent, and the Agent shall have received all
information and copies of all documents, including, without limitation, records
of requisite corporate action that the Agent may reasonably request, to be
certified by the appropriate corporate person or governmental authorities.
III. MISCELLANEOUS
1. By its signature below, each of the Borrowers reaffirms and
restates the representations and warranties set forth in Article VII of the Loan
Agreement, and all such representations and warranties are true and correct on
the date hereof with the same force and effect as if made on such date (except
to the extent that they relate expressly to an earlier date). The Parent
reaffirms and restates the representations and warranties set forth in Section
14 of the Parent Guaranty, and all such representations and warranties are true
and correct on the date hereof with the same force and effect as if made on such
date (except to the extent that they relate expressly to an earlier date). In
addition, each of the Borrowers, the Parent and the other Guarantors represents
and warrants (which representations and warranties shall survive the execution
and delivery hereof) to the Agent and the Lenders that:
(a) it has the power and authority to execute, deliver and carry out
the terms and provisions of this Amendment Agreement and the transactions
contemplated hereby, and has taken or caused to be taken all necessary actions
to authorize the execution, delivery and performance of this Amendment Agreement
and the transactions contemplated hereby;
(b) no consent of any other Person (including, without limitation,
shareholders or creditors of the Borrowers, the Parent or any of the other
Guarantors) and no action of, or filing with any governmental or public body or
authority is required to authorize, or is otherwise required in connection with
the execution, delivery and performance of this Amendment Agreement, or
consummation of the transactions contemplated hereby;
(c) this Amendment Agreement has been duly executed and delivered by
or on behalf of the Borrowers, the Parent and the other Guarantors and
constitutes a legal, valid and binding obligation of each of the Borrowers, the
Parent and the other Guarantors enforceable in accordance with its terms,
subject as to enforceability to bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally and the exercise of judicial discretion in accordance with general
principles of equity;
(d) the execution, delivery and performance of this Amendment
Agreement will not violate any law, statute or regulation, or any order or
decree of any court or governmental instrumentality, or conflict with, or result
in the breach of, or constitute a default under any contractual obligation of
any Borrower, the Parent or any of the other Guarantors; and
(e) as of the date hereof (after giving effect to the consummation of
the transactions contemplated under this Amendment Agreement) there exists no
Default or Event of Default.
By its signature below, each of the Borrowers, the Parent and the other
Guarantors agree that it shall constitute an Event of Default if any
representation or warranty made above should be false or misleading in any
material respect.
2. Each of the Loan Agreement and the other Loan Documents is hereby
ratified and confirmed in all respects and, except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Loan Agreement and the other Loan Documents shall remain unamended, unwaived and
in effect in accordance with their respective terms. The amendments set forth
herein shall be limited precisely as provided for herein and shall not be deemed
to be amendments or consents to, or waivers of modifications of, any term or
provision of the Loan Documents or any other document or instrument referred to
herein or therein or of any transaction or further or future action on the part
of any Borrower, the Parent or any of the other Guarantors requiring the consent
of the Agent or any Lender, except to the extent specifically provided for
herein.
3. Each of the Borrowers, the Parent and the other Guarantors confirms
in favor of the Agent and each Lender that it agrees that it has no defense,
offset, claim, counterclaim or recoupment with respect to any of its obligations
or liabilities under the Loan Agreement or any other Loan Document and that,
except as herein provided, all terms of the Loan Agreement and the other Loan
Documents shall continue in full force and effect.
4. This Amendment Agreement may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
5. Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart.
6. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
Agreement as of the day and year first above written.
"Borrowers"
XXX RADIO AND TELEVISION, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX KANSAS, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
xxxxxxxxx.xxx, Inc.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Parent"
XXX STORES CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Guarantors"
XXX RADIO AND TELEVISION, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX KANSAS, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
xxxxxxxxx.xxx, Inc.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX STORES CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
AVA ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX INVESTMENT, LLC
By: Xxxxx & Xxxxx Appliances, Inc., its
Managing Member
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX INVESTMENT I, LLC
By: AVA Acquisition Corp., its
Managing Member
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Lenders"
FLEET CAPITAL CORPORATION, Individually
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: VP Loan Officer
BANK ONE, N.A.
(successor to Bank One, Dayton, N.A.)
By:
------------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By: /s/ R. XXXXXXX XXXXXXXX
------------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK (as successor by
merger to National City Bank, Dayton)
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
THE PROVIDENT BANK
By: /s/ XXXXXX X. BRUNSWICK
------------------------------------
Name: Xxxxxx X. Brunswick
Title: Senior Vice President
U.S. BANK
(successor to Firstar Bank, N.A.)
By:
------------------------------------
Name:
Title:
"Agent"
FLEET CAPITAL CORPORATION, As Agent
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: VP Loan Officer
