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EXHIBIT 10.7.2
AMENDMENT TO AMENDED AND RESTATED
PRIVATE LABEL REVOLVING CREDIT PLAN AGREEMENT
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This Amendment to Amended and Restated Private Label Revolving
Credit Plan Agreement (the "Amendment") is entered into as of the 24th day of
January, 2000, by and between Xxxxxxx, Inc., as debtor and debtor in possession
("Xxxxxxx") and GE Capital Consumer Card Co., an Ohio corporation ("GE
Capital"), and amends that certain Amended and Restated Private Label Revolving
Credit Plan Agreement dated as of June 17, 1998, by and GE Capital, successor in
interest to Bank One, NA ("Bank One"), and Xxxxxxx (the "Program Agreement").
WHEREAS, on January 19, 2000 (the "Filing Date"), Xxxxxxx
commenced Chapter 11 Case No. 00-30194 (the "Chapter 11 Case") by filing a
voluntary petition for reorganization under Chapter 11 of the United States
Code, 11 U.S.C. sections 101 et seq. (The "Bankruptcy Code") with the United
States Bankruptcy Court for the Southern District of Ohio, Western Division
(the "Bankruptcy Court");
WHEREAS, Xxxxxxx continues to operate its business and manage
its properties as a debtor and debtor in possession pursuant to Section 1107(a)
and 1108 of the Bankruptcy Code;
WHEREAS, Xxxxxxx currently operates stores in Atlanta,
Georgia, Dayton, Ohio, Cincinnati, Ohio, Tampa, Florida and Richmond, Indiana,
and intends to close its stores in Cincinnati, Ohio and Tampa, Florida (the
"Closing Markets") and to continue to operate its stores in Atlanta, Georgia,
Dayton, Ohio and Richmond, Indiana (the "Remaining Markets"); and
WHEREAS, GE Capital and Xxxxxxx desire to amend the Program
Agreement as provided herein, and except as expressly amended by this Amendment,
to continue the Program Agreement in all other respects as set forth therein.
NOW, THEREFOR, the parties hereto hereby agree as follows:
I. DEFINITIONS.
Terms used in this Amendment, unless otherwise defined in the
Amendment, shall have the meanings specified in the Program Agreement.
II. ASSUMPTION OF PROGRAM AGREEMENT AS AMENDED.
Xxxxxxx hereby assumes the Program Agreement as amended by
this Amendment pursuant to Section 365 of the Bankruptcy Code, and GE Capital
hereby consents to such assumption.
III. AMENDMENTS TO PROGRAM AGREEMENT.
The Program Agreement is hereby amended as set forth below:
A. AMENDMENT TO SECTION 1.
Section 1 of the Program Agreement is amended to add the
following definitions in appropriate alphabetical order:
"AMENDMENT" means the Amendment to Amended and Restated Private Label
Revolving Credit
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Card Plan Agreement dated January 24, 2000 between Xxxxxxx and GE
Capital.
"APPROVAL ORDER" shall mean the order of the Bankruptcy Court entered
in the Chapter 11 Case upon the Debtor's Emergency Motion for Order
Pursuant to Bankruptcy Code Sections 105 and 365 Authorizing Debtor to
Assume the Amended and Restated Private Label Revolving Credit Card
Plan Agreement, as amended by the Amendment, substantially in the form
attached to the Amendment as Exhibit A, together with all extensions,
modifications and amendments thereto.
"BANKRUPTCY COURT" is defined in the first recital of the Amendment.
"CHAPTER 11" means the Chapter 11 case filed by the Debtor in federal
bankruptcy court in Dayton, Ohio.
"CLOSING MARKETS" is defined in the third recital of the Amendment.
"CONFIRMATION ORDER" means the order of the Bankruptcy Court entered in
the Chapter 11 Case which (i) confirms a Plan of Reorganization after
appropriate notice and hearing and is final and non-appealable, (ii)
finds or otherwise provides that all of the requirements of Section
1129 of the Bankruptcy Code have been satisfied, and (iii) in the
reasonable judgment of GE Capital, does not adversely affect in any
material manner (a) the validity, enforceability or the continued
effect of the Agreement or the Accounts, (b) the collectibility of the
Accounts, or (c) any of GE Capital's rights and remedies under, and the
prospective economic benefit to GE Capital of, the Agreement.
"CREDIT CARD" means any Plan Card or other private label card issued by
GE Capital or Bank One, NA, its predecessor, under or in connection
with this Agreement.
"DEBTOR" means Xxxxxxx, as debtor and debtor in possession in the
Chapter 11 Case.
"FILING DATE" is defined in the first recital of the Amendment.
"PLAN OF REORGANIZATION" means a plan of reorganization in the Chapter
11 Case satisfactory in form and substance to GE Capital.
"REORGANIZED DEBTOR" means Xxxxxxx on and after the effective date of
a Plan of Reorganization.
"REMAINING MARKETS" is defined in the third recital of the Amendment.
"XXXXXXX" means Xxxxxxx, Inc., as Debtor and/or Reorganized Debtor, as
applicable.
B. AMENDMENTS TO SECTIONS 32 AND 33.
The following shall be added as new Sections 32 and 33 to the
Agreement, and Sections 32 through 35 are hereby renumbered as Sections 34
through 37:
1. NEW SECTION 32
32. CLOSING MARKETS. Notwithstanding anything to the contrary in this
Agreement,
a. effective as of the Filing Date, Xxxxxxx
shall have no right to receive any further distributions of Plan
Interest Proceeds that are attributable to the Closing Markets
Accounts that would otherwise be due to Xxxxxxx under the Agreement;
b. effective as of the Filing Date, GE
Capital shall have the right
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to utilize the Cardholders associated with any of the Closing Markets
in Tampa only for any purpose it desires in compliance with state and
federal law, including, without limitation, the right to sell customer
lists associated with Closing Markets in Tampa only, provide
substitute or replacement cards to the Cardholders associated with the
Closing Markets in Tampa only, and mail to the Cardholders associated
with the Closing Markets in Tampa only any material for the marketing
of GE Capital Services or other products or services offered by GE
Capital.
c. as soon as practicable after the Filing
Date and in no event after February 15, 2000, Xxxxxxx shall not permit
the use of any Credit Card in any store in any of the Closing Markets.
2. NEW SECTION 33.
33. REMAINING MARKETS. Notwithstanding anything to the contrary in
this Agreement,
a. effective as of February 1, 2000,
Xxxxxxx shall not permit any Cardholder to finance any down payment
using a Credit Card.
b. effective as of February 1, 2000, each
store in the Remaining Markets shall be limited to the "same as cash"
promotions as advertised after the Filing Date; PROVIDED, that such
"same as cash" promotions shall not exceed fifteen (15) months; and
PROVIDED, FURTHER, that the ongoing point of sale closure tool on Home
Theater packages is hereby canceled. The term "same as cash" as used
herein requires minimum monthly payments by the Cardholder, except as
otherwise agreed to in writing by GE Capital in its discretion.
c. By the date six (6) months after the Filing Date
and thereafter, one hundred percent (100%) of the products sold to
Cardholders paying for such products by use of any Credit Card, shall
be delivered by Xxxxxxx to such Cardholder within seven (7) calendar
days from the date the sale is charged to such Credit Card.
C. AMENDMENT TO SECTION 5 OF ADDENDUM C.
The first sentence in Section 5A of Addendum C to the Program
Agreement is amended by adding after the words "the total face amount" the words
"net of any deductions permitted to be taken by Bank under the Agreement".
D. AMENDMENT TO SECTION 21.
Section 21 is hereby amended by adding the following as
additional events of default under the Program Agreement ("Additional Events of
Default"):
1. The Bankruptcy Court shall enter an order
authorizing the appointment of an interim or permanent trustee in any
of the Chapter 11 Cases or the appointment of an examiner in any of the
Chapter 11 Cases with expanded powers to operate or manage the
financial affairs, business, or reorganization of any of the Debtor.
2. The Chapter 11 Case shall be dismissed or
converted from one under Chapter 11 to one under Chapter 7 of the
Bankruptcy Code.
3. The Approval Order shall not become a final and
non-appealable order by February 21, 2000.
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4. The Approval Order shall be modified without GE
Capital's prior written consent.
5. The Confirmation Order shall have been entered
without GE Capital's consent.
6. There shall be a default under any debtor in
possession financing order or cash collateral order in the Chapter 11
Case, or the same shall be terminated without a replacement.
7. Xxxxxxx shall breach any of the agreements set
forth in the Amendment and the same, if capable of being cured, shall
not be cured to GE Capital's satisfaction within five (5) days of
written notice by GE Capital to Xxxxxxx.
E. AMENDMENT TO SECTION 21.
Section 21 is hereby further amended by adding the following
at the end of the Additional Events of Default:
Notwithstanding anything to the contrary in this Agreement, GE Capital
shall have the right to terminate this Agreement upon the occurrence of
any Additional Event of Default, which termination shall be effective
upon ten days' written notification by GE Capital to Xxxxxxx of the
occurrence of such Additional Event of Default.
IV. RELIEF FROM THE AUTOMATIC STAY.
Xxxxxxx acknowledges that (i) it has no interest in the
Accounts generated under the Program Agreement, and (ii) the automatic stay of
Section 362 of the Bankruptcy Code shall be modified or vacated, pursuant to and
effective upon entry of the Approval Order, to permit GE Capital to exercise any
of its rights under the Program Agreement, as amended (including taking
chargebacks and deducting amounts due to Xxxxxxx as provided hereunder) and its
remedies under the Program Agreement, as amended without further application or
motion to, or order from, the Bankruptcy Court.
V. CONSENT TO JURISDICTION.
Xxxxxxx hereby consents to personal jurisdiction, waives any
objection as to jurisdiction or venue, and agrees not to assert any defense
based on lack of jurisdiction or venue, in the Bankruptcy Court. Service of
process on any party in any action arising out of or relating to this Agreement
shall be effective if mailed to such party at the address listed in Section 34
of the Program Agreement; provided, that the address for Bank One shall be
replaced with the address for GE Capital. Nothing herein shall preclude other
legal action in any other jurisdiction.
VI. BINDING EFFECT.
This Agreement shall be binding upon, and inure to the benefit
of, the successors and permitted assigns of the parties hereto. The Program
Agreement, as amended shall be binding upon each Company, the estate of each
Debtor, and any trustee or successor in interest of each Debtor in its Chapter
11 Case or any subsequent case commenced under Chapter 7 of the Bankruptcy Code.
VII. CONDITIONS PRECEDENT.
Notwithstanding anything to the contrary herein, this
Amendment shall not be effective unless and until GE Capital shall have received
each of the below listed items in form and substance satisfactory to GE Capital
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or waived delivery thereof:
1. Evidence that the Bankruptcy Court has entered the
Approval Order;
2. Evidence that the Bankruptcy Court has entered an interim
order, or if there is no interim order or the interim order is no longer
effective, a final order, with respect to debtor in possession financing in form
and substance satisfactory to GE Capital and no appeal, certiorari petition,
reargument, rehearing or other review of such interim order or final order is
pending or if an appeal has been filed, no stay of such order pending appeal has
been granted.
VIII. GENERAL PROVISIONS.
A. FULL FORCE.
Except as amended herein, the Program Agreement remains in
full force and effect. Upon the effectiveness of the Amendment, on and after the
date hereof each reference in the Program Agreement to the Program Agreement,
"hereunder", "hereof", "herein" or words of like import shall mean and be a
reference to the Program Agreement as amended hereby.
B. GOVERNING LAW.
The Amendment shall be governed and construed in accordance
with the laws of the state of Ohio and any applicable laws of the United States
of America.
C. COUNTERPARTS.
The Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument.
D. NO WAIVER.
Except as specifically set forth in this Amendment, the
execution, delivery and effectiveness of this Amendment shall not (a) limit,
impair, constitute a waiver by, or otherwise affect any right, power or remedy
of GE Capital under the Program Agreement, including any setoff or recoupment
rights, (b) constitute a waiver of any provision in the Program Agreement, or
(c) alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Program Agreement, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect.
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IN WITNESS WHEREOF, the parties below have executed this
Amendment as of the day and year stated above.
GE CAPITAL CONSUMER CARD CO.
By: /s/ Xxx X. Xxxxxx
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Title: Duly Authorized Signatory
Executive Vice President
XXXXXXX, INC., as debtor and debtor in possession
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
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