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Exhibit 4(a)(ii)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT ("First Amendment")
is made as of the 18th day of August, 2000, by and among XXXX XXXXXX STORES,
INC. ("Xxxx Xxxxxx"), XXXX XXXXXX MERCHANDISING, INC. ("Merchandising"), XXXX
XXXXXX RETAILING, INC. ("Retailing"), XXXX XXXXXX DISTRIBUTING, INC.
("Distributing"), THE X. XXXXXXXX COMPANY ("Xxxxxxxx"), XXXXXXXX PROPERTY CORP.
("Property") and XXXXXXXX WORLDWIDE CORP. ("Worldwide"), each an Indiana
corporation except Property, which is a Delaware corporation (each, a "Borrower"
and collectively, "Borrowers"), jointly and severally, and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association ("Bank").
RECITALS
1. Bank and Borrowers entered into a certain Amended and Restated Secured
Credit Agreement dated as of the 20th day of January, 1994 (the "Secured Credit
Agreement") and Xxxx Xxxxxx has entered into that certain Amended and Restated
Secured Term Loan payable to Bank with an outstanding principal balance of
$1,700,000;
2. The Secured Credit Agreement has been amended by a certain Amended and
Restated Loan and Security Agreement dated as of the 28th day of April, 2000 by
and among Bank and Borrowers (the "Loan and Security Agreement");
3. Borrowers have requested Bank to amend and modify certain of the
provisions of the Loan and Security Agreement and Bank, pursuant to the terms
hereof, is willing to so amend and modify the Loan and Security Agreement.
THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and any extension of credit now made by Bank to
Borrowers, the parties agree as follows:
6. Borrowers and Bank hereby agree that, subject to the satisfaction of
the conditions precedent set forth in Section 4 of this First Amendment, as of
the First Amendment Effective Date, the Loan and Security Agreement is amended
as follows:
1.1 DEFINITIONS AND TERMS. Except as otherwise provided
herein, all capitalized terms used herein without definition shall have the
meanings given them in the Loan and Security Agreement.
1.2 AMENDED AND NEW DEFINITIONS AND TERMS. The definitions of
"General Intangibles," "Prime Rate Margin," "Revolving Loan Borrowing Base,"
"Advance Ratio," and "Revolving Note" are hereby deleted from Section 1.1 to the
Loan and Security Agreement and the following are inserted in their stead. The
following definitions of "First Amendment
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Effective Date" and "Special Advance" are hereby inserted into Section 1.1 to
the Loan and Security Agreement:
"First Amendment Effective Date" means the date on which all
of the conditions precedent listed in Section 4 of that certain First
Amendment to Loan and Security Agreement dated as of August 18, 2000
among Bank and Borrowers are either satisfied or waived by Bank.
"General Intangibles" means all choses in action, causes of
action and all other intangible property of Borrowers of every kind and
nature now owned or hereafter acquired by Borrowers, including, without
limitation, corporate and other business records, deposit accounts,
inventions, designs, patents, patent and trademark registrations and
applications, trademarks, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, leases, franchises, deferred tax
benefits, tax refund claims, prepaid expenses, computer programs,
covenants not to compete, customer lists and mailing lists, contract
rights, indemnification rights, causes of action and any letters of
credit, guarantee claims, security interests or other security held by
or granted to Borrowers.
"Prime Rate Margin" means two percent (2%).
"Revolving Loan Borrowing Base" means, as at any date of
determination thereof, an amount which is the sum of:
A) the product of the amounts of (i) each component of
Eligible Inventory, (ii) outstanding and issued documentary letters of
credit, and (iii) Carryover Inventory, multiplied by the Advance Ratio,
subject to the maximum amount of each such product to be included in
the Revolving Loan Borrowing Base, as follows:
COMPONENT OF INVENTORY MAXIMUM AMOUNT
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Eligible Inventory on premises. None.
Eligible Inventory in transit. None.
Eligible Inventory in transit not
supported by a letter of credit. None.
Outstanding and issued documentary
letters of credit. None.
Carryover Inventory. $5,000,000.
plus (B) the product of Non-Apparel Inventory multiplied by thirty percent
(30%);
plus (C) seventy percent (70%) of the fair market value of the Mortgaged
Property, which is the amount of Four Million Four Hundred Eighty
Thousand Dollars ($4,480,000), as cumulatively reduced on the first day
of each month commencing June, 2000 in the amount of Eighteen Thousand
Six Hundred Sixty-Seven Dollars ($18,667) (the "Mortgaged Property
Cap");
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plus (D) the Special Advance available as described in Paragraph 2.1(b) of
this Agreement.
For purposes hereof, "Advance Ratio" shall mean up to
seventy-five percent (75%).
"Revolving Note" means that certain First Amended and Restated
Revolving Note dated August 18, 2000 in the maximum aggregate principal
amount of FORTY-FIVE MILLION DOLLARS ($45,000,000), as the same may be
amended, modified or restated from time to time, and together with any
renewals thereof or exchanges or substitutes therefor.
1.3 LOANS: BANK'S COMMITMENTS. Section 2.1 of the Loan and Security
Agreement is hereby deleted and the following is inserted in its stead:
"2.1 Loan Commitments.
(a) Revolving Credit Commitment. On the terms and subject to
the conditions set forth in this Agreement, Bank agrees to make
revolving credit and Letters of Credit available to Borrowers from time
to time prior to the Termination Date with respect to Revolving Loans
and Letters of Credit in such aggregate amounts as Representative may
from time to time request but in no event exceeding the maximum
principal amount available of FORTY-FIVE MILLION DOLLARS ($45,000,000)
in the aggregate (the "Revolving Credit Commitment"); provided,
however, that in no event shall the Revolving Credit Commitment at any
one time exceed the Revolving Loan Borrowing Base. The Revolving Credit
Commitment shall include the Special Advance (as defined below) and
shall be available to Borrowers by means of Revolving Loans and Letters
of Credit. Revolving Loans and Letters of Credit may be repaid and used
again during the period from the date hereof to and including the
Termination Date, at which time the Revolving Credit Commitment shall
expire. Notwithstanding the foregoing, Bank may, from time to time, in
its sole discretion, establish reserves in determining the Revolving
Loan Borrowing Base ("Reserves"), and increase or decrease such
Reserves from time to time, if and to the extent that, such Reserves
are necessary to protect Bank against the aggregate amount of exposure
assumed by Bank in connection with certain interest rate protection
products entered into from time to time between Bank and any Borrower.
(b) Special Advance. Subject to all of the terms and
conditions of this Agreement, Bank agrees to include as part of the
Revolving Credit Commitment, a special advance to Borrowers on the
First Amendment Effective Date in the principal amount of FOUR MILLION
DOLLARS ($4,000,000) (the "Special Advance"), which shall bear interest
in accordance with Section 4.1, shall be secured by all of the
Collateral as provided for herein, and shall be due and payable in a
single lump sum on the earlier of
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(i) the sale or other disposition of substantially all of the assets of
Xxxxxxxx, Property or Worldwide at public or private sale for cash or
credit or (ii) October 15, 2000 (the "Special Advance Termination
Date"); provided, however, that in the event Borrowers provide the Bank
with a fully-executed definitive purchase agreement for Xxxxxxxx,
Property and Worldwide, the Bank may consider extending the Special
Advance Termination Date in its sole discretion. The proceeds of the
Special Advance shall be used solely for purposes for which the
proceeds of the Revolving Loans are authorized to be used. Upon the
Special Advance Termination Date, the Special Advance shall terminate
and shall no longer be included in the Revolving Loan Borrowing Base."
1.4 LOANS: NOTES EVIDENCING LOANS. Section 3.1 of the Loan and Security
Agreement is hereby deleted and the following is inserted in its stead:
"3.1 Revolving Note. The Revolving Loans made by Bank under
the Revolving Credit Commitment shall be evidenced by the Revolving
Note substantially in the form set forth in Exhibit B, with appropriate
insertions, dated the date hereof, payable to the order of Bank. The
unpaid principal amount of each Revolving Loan shall bear interest and
be due and payable as provided in this Agreement and the Revolving
Note. Payments to be made by Borrowers under the Revolving Note shall
be made at the time, in the amounts and upon the terms set forth herein
and therein."
1.5 LOANS: AMOUNTS; INTEREST CHANGE IN CIRCUMSTANCES, ETC.. Section
4.1(a) of the Loan and Security Agreement is hereby deleted and the following is
inserted in its stead:
"(a) Subject to the LIBOR Loan restriction set forth in
Paragraph 4.10 below, the unpaid principal amount of each Revolving
Loan that is a Prime Rate Loan shall bear interest from the date of
such Loan until maturity (whether by acceleration or otherwise) at a
rate per annum which shall at all times be the Prime Rate in effect
from time to time plus the Prime Rate Margin, in each case with such
interest payable in accordance with Paragraph 4.1(c) below.
(b) Subject to the LIBOR Loan restriction set forth in
Paragraph 4.10 below, each LIBOR Loan shall be in a minimum amount of
$500,000 or such greater amount which is an integral multiple of
$100,000 and shall bear interest on the unpaid principal amount thereof
from the date of such LIBOR Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the
LIBOR Margin plus the Adjusted LIBOR Rate, with such interest payable
in accordance with Paragraph 4.1(d) below. More than one LIBOR Loan may
be incurred on any Business Day; provided, that at no time shall there
be outstanding more than five (5) LIBOR Loans hereunder."
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1.6 LIBOR LOAN RESTRICTION. Section 4 of the Loan and Security
Agreement is hereby amended by adding the following new Section 4.10:
"4.10 LIBOR Loan Restriction. Borrowers hereby agree that,
from the First Amendment Effective Date through the Maturity Date (the
"LIBOR Loan Restriction Period"), Borrowers shall not be permitted to
receive any LIBOR Loans, and, accordingly, all Revolving Loans and
Letters of Credit made under the Revolving Credit Commitment during the
LIBOR Loan Restriction Period shall be issued as Prime Rate Loans. Upon
Bank's review of Borrowers' draft annual Financial Statements, Bank
shall re-evaluate Borrower's pricing and may thereafter, at Bank's sole
discretion, reinstitute LIBOR Loans."
1.7 LETTER OF CREDIT FEES. Section 5.12 of the Loan and Security
Agreement is hereby deleted and the following is inserted in its stead:
"5.12 Letter of Credit Fees.
(a) For each commercial Letter of Credit, Borrowers
shall pay to Bank monthly fees equal to two percent (2%) per annum of
the face amount of all outstanding documentary Letters of Credit during
such period (the "L/C Draw Fee"), and (ii) an initial issuance fee and
an amendment fee, as applicable, in accordance with Bank's
then-existing fee structure in the minimum amount of One Hundred Fifty
Dollars ($150). The L/C Draw Fee and the initial issuance fee shall be
fully earned on the date such commercial Letter of Credit is issued and
payable on the last day of each month for such calendar month in which
the Letter of Credit is outstanding.
(b) For each standby Letter of Credit, Borrowers
shall pay Bank a fee for each such Letter of Credit equal to (i) the
average daily face amount of such standby Letter of Credit multiplied
by two percent (2%) per annum, such fee to be calculated on the basis
of a 360 day year and charged for the actual number of days during the
period from and including the date of issuance of such Letter of Credit
to and excluding the date of expiration and termination, and payable on
the last day of each calendar month for such month in which the Letter
of Credit is issued and (ii) an initial issuance fee and an amendment
fee, as applicable, in accordance with the Bank's then existing fee
structure in the minimum amount of One Hundred Fifty Dollars ($150).
For purposes of (a) and (b) above, the "average daily face
amount" of a Letter of Credit shall be the sum of the amounts available
to be drawn under such Letter of Credit on each day from the date the
Letter of Credit is established until the date it expires, divided by
the number of days from the date the Letter of Credit is established
until the date it expires."
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1.8 UNUSED PORTION FEE. Section 5 of the Loan and Security Agreement is
hereby amended by adding the following new Section 5.13:
"5.13 Letter of Credit: Unused Portion Fee. To compensate Bank
for the cost of reserving funds to be made available to Borrowers under
the Loan and Security Agreement, Borrowers shall pay Bank, on the last
day of each calendar month for such month an unused revolving line fee
(the "Unused Portion Fee") equal to the sum of the daily amounts by
which the amount of the Revolving Credit Commitment exceeds the actual
principal amount of all Revolving Loans and Letters of Credit issued
hereunder. The Unused Portion Fee is calculated for each applicable day
of such month in an amount equal to the excess of the amount of the
Revolving Credit Commitment over the sum of (a) the outstanding
principal amount of all Revolving Loans on such day and (b) the
aggregate dollar amount of Letters of Credit issued and outstanding on
such day, multiplied by one quarter percent (0.25%) and divided by
three hundred sixty (360). All fees and charges imposed on Borrowers
pursuant to the Loan and Security Agreement including, without
limitation, the Unused Portion Fee, accrued through the Maturity Date
shall be nonrefundable to Borrowers, notwithstanding any early
termination by Borrowers of the Loan and Security Agreement."
1.9 REAL PROPERTY COLLATERAL. Section 7.2 of the Loan and Security
Agreement is hereby deleted and the following is inserted in its stead:
"7.2 Real Property Collateral. The term "Collateral" shall
also include any and all Facilities, including, but not limited to, the
Mortgaged Property owned by Xxxx Xxxxxx pursuant to the terms of the
Mortgage executed by Xxxx Xxxxxx in favor of Bank."
1.10 INSPECTION OF COLLATERAL AND VISITATION RIGHTS. Section 7.4 of the
Loan and Security Agreement is hereby deleted and the following is inserted in
its stead:
"7.4 Inspection of Collateral and Visitation Rights. Bank
shall have the right to inspect the Collateral and all related records
(and the premises upon which it is located), perform field audits and
inventory valuations, visit and inspect the properties and assets of
each Borrower and verify the amount and condition of or any other
matter relating to the Collateral. All reasonable costs, fees and
expenses incurred by Bank or for which Bank has become obligated, in
connection with such inspection and/or verification (including, but not
limited to, out of pocket costs of seven hundred fifty dollars ($750)
per man-day), shall constitute part of Borrowers' Liabilities, payable
by Borrowers to Bank on demand."
1.11 REPORTING REQUIREMENTS. Section 11.2(d)(iii) of the Loan and
Security Agreement is hereby deleted and the following is inserted in its stead:
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"(iii) as soon as available and in any event within
twenty (20) days after the end of each month hereafter, an internally
prepared consolidated and consolidating balance sheet of Borrowers as
at the end of such month and the related consolidated and consolidating
statements of net earnings and stockholders' equity and consolidated
and consolidating statements of cash flows of Borrowers for such month
and for the portion of the fiscal year ended at the end of such month,
setting forth in each case in comparative form the figures for the
corresponding month and the corresponding portion of the previous
fiscal year, all in reasonable detail and certified (subject to normal
year-end adjustments) as to fairness of presentation, in accordance
with GAAP, by an Authorized Officer of Representative;"
1.12 REPORTING REQUIREMENTS. Section 11.2(d) is hereby amended by
adding the following new subsections (xiii) and (xiv):
"(xiii) as soon as available and in any event within
twenty (20) days after the end of each month hereafter, an internally
prepared report of same store sales comparisons (x) to the same month
in the prior year and (y) on a year-to-date basis; and"
"(xiv) as soon as available and in any event within
twenty (20) days after the execution of this First Amendment,
internally prepared consolidated and consolidating forecasted monthly
balance sheets and profit and loss statements through January 31, 2001,
and, within thirty (30) days after the execution of the First
Amendment, internally prepared consolidated and consolidating
forecasted monthly balance sheets and profit and loss statements
through the Maturity Date."
1.13 FINANCIAL COVENANTS. Section 11.2(f) of the Loan and Security
Agreement is hereby deleted and the following is inserted in its stead:
"(f) Financial Covenants. Maintain the following financial
covenants:
(i) Maintain a minimum Tangible Net Worth, at all
times, equal to or greater than $55,000,000;
(ii) Maintain the following minimum sales levels for
each month as indicated, which shall be measured and reported to Bank
within five (5) days after the end of each such month:
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Minimum Sales Level Amount ($ & 000's omitted)
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August 2000 15,000
September 2000 23,100
October 2000 19,500
November 2000 23,000
December 2000 41,750
January 2001 13,000
(iii) Maintain the following minimum aggregate
collection levels for the period commencing from August 1,
2000 through the last day of each month as provided below,
which shall be measured and reported to Bank within five (5)
days after the end of each such month:
Minimum Collections Level Amount ($ & 000's omitted)
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August 2000 15,800
September 2000 47,550
October 2000 68,200
November 2000 92,600
December 2000 136,600
January 2001 150,600
and;
(iv) Maintain the aggregate total amount outstanding
under the Revolving Loans of no more than the following
maximum amounts for each month end as indicated, which shall
be measured and reported to Bank within five (5) days after
the end of each such month:
Maximum Loan Level Amount ($ & 000's omitted)
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August 2000 45,000
September 2000 39,400
October 2000 41,000
November 2000 33,600
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December 2000 7,000(1)
January 2001 20,900
Borrowers and Bank agree that the amounts described in
subparagraphs (iii) and (iv) above will be re-evaluated and may be
adjusted by Bank upon the Special Advance Termination Date."
6. SPECIFIC FINANCIAL COVENANTS AND EVENTS OF DEFAULT. As of the First
Amendment Effective Date, Bank shall be deemed to have waived that certain Event
of Default resulting from (i) the failure of Borrowers to comply with the
specific financial covenants contained in Section 11.2(f)(i) for fiscal period
ending on or prior to June 30, 2000; (ii) any material adverse effect occurring
prior to the First Amendment Effective Date; (iii) any failure to deliver the
documents required to be delivered in Sections 6.1(b)(x) and (xi) of the Loan
and Security Agreement (landlord waiver and collateral assignment of lease);
provided, however, that Borrowers must diligently work to provide such documents
to Bank; or (iv) any failure by Borrowers occurring on or before the First
Amendment Effective Date to deliver to Bank any financial statements as required
by Section 11.2(d) of the Loan and Security Agreement. This waiver shall not
extend to any Events of Default other than the items detailed in clauses (i),
(ii), (iii) and (iv) of the preceding sentence.
6. FEES: CLOSING FEE AND SUCCESS FEE. Borrowers shall pay to Bank (i) a
Closing Fee in the amount of $450,000 earned on the First Amendment Effective
Date, with $150,000 to be paid on each of September 30, 2000, October 31, 2000
and November 30, 2000; and (ii) a Success Fee in the amount of $450,000 earned
on the First Amendment Effective Date and payable on December 29, 2000.
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(1) This figure represents the maximum permitted amount of all outstanding
obligations for the month of December, 2000. However, as of December 31, 2000,
the total outstanding amount on all Loans must be $0.
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6. CONDITIONS PRECEDENT. This First Amendment shall become
effective upon satisfaction of each of the following conditions precedent:
(1) Borrowers shall have executed and delivered to Bank a copy of this
First Amendment and the Revolving Note;
(1) Borrowers shall have delivered to Bank a Certificate of the
Secretary of each Borrower, together with true and correct copies of
the resolutions of the Board of Directors of each Borrower authorizing
or ratifying the execution, delivery and performance of this First
Amendment and the Revolving Note and the names of the officer or
officers of Borrowers authorized to sign this First Amendment and the
Revolving Note together with a sample of the true signatures of each
such officer;
(2) The delivery to Bank of the favorable written opinion of Xxxxx &
Xxxxxxx, counsel to Borrowers, in a form acceptable to Bank and its
counsel;
(1) The delivery to Bank of such other documents, instruments and
agreements as Bank shall reasonably request in connection with the
foregoing matters; and
(1) The representations and warranties of Borrowers contained in
Section 5 of this First Amendment shall be true and correct as of the
First Amendment Effective Date.
6. REPRESENTATIONS AND WARRANTIES OF BORROWERS. Borrowers represent and
warrant that:
(1) The execution, delivery and performance by it of this First
Amendment and the Revolving Note have been duly authorized by all
necessary corporate or other action on the part of each Borrower;
(1) This First Amendment and the Revolving Note have been duly executed
and delivered by each Borrower;
(1) This First Amendment, the Loan and Security Agreement and the
Revolving Note are and will be, legal, valid and binding obligations of
Borrowers, enforceable against Borrowers in accordance with their
terms, except as the enforcement thereof may be subject to (i) the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and
(ii) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
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(1) All of the representations, warranties and covenants of Borrowers
contained in the Loan and Security Agreement, as amended hereby, are
true and correct in all material respects on and as of the First
Amendment Effective Date as if made on such date, subject to the waiver
granted under Section 2 of this First Amendment; and
(1) Other than as provided for in Section 2 of this First Amendment, no
Event of Default under the Loan and Security Agreement has occurred and
is continuing.
6. RELEASES; INDEMNITIES.
(1) In further consideration of Bank's execution of this First
Amendment, Borrowers, individually and on behalf of their successors
(including, without limitation, any trustees acting on behalf of
Borrowers and any debtor-in-possession with respect to Borrowers),
assigns, Subsidiaries and Affiliates, hereby forever release Bank and
its respective successors, assigns, parents, Subsidiaries, Affiliates,
officers, employees directors, agents and attorneys (collectively, the
"Releasees") from any and all debts, claims, demands, liabilities,
responsibilities, disputes, causes, damages, actions and causes of
action (whether at law or in equity) and obligations of every nature
whatsoever, whether liquidated or unliquidated, whether known or
unknown, matured or unmatured, fixed or contingent (collectively,
"Claims") that Borrowers may have against the Releasees which arise
from or relate to any actions which the Releasees may have taken or
omitted to take prior to the date this First Amendment was executed,
including, without limitation, with respect to the Borrowers'
obligations, any Collateral, the Loan and Security Agreement, any Other
Agreements and any third parties liable in whole or in part for the
Borrowers' obligations. This provision shall survive and continue in
full force and effect whether or not Borrowers shall satisfy all other
provisions of this First Amendment, the Loan Documents or the Loan and
Security Agreement including payment in full of all of Borrowers'
obligations.
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(1) Borrowers hereby agree that their obligation to indemnify and hold
the Releasees harmless as set forth in Section 6(a) hereof shall
include an obligation to indemnify and hold the Releasees harmless with
respect to any and all liabilities, obligations, losses, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever incurred by the Releasees, or any of them, whether
direct, indirect or consequential, as a result of or arising from or
relating to any proceeding by, or on behalf of any person, including,
without limitation, officers, directors, agents, trustees, creditors,
partners or shareholders of Borrowers, whether threatened or initiated,
asserting any claim for legal or equitable remedy under any statute,
regulation or common law principle arising from or in connection with
the negotiation, preparation, execution, delivery, performance,
administration and enforcement of this First Amendment or any other
document executed in connection herewith. The foregoing indemnity shall
survive the payment in full of the Borrowers' obligations under this
First Amendment, the Loan and Security Agreement and the Other
Agreements.
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7. WAIVERS BY BORROWERS. BORROWERS WAIVE (i) THE RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF
OR RELATED TO THIS FIRST AMENDMENT, THE LOAN AND SECURITY AGREEMENT,
ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL; (ii)
PRESENTMENT, DEMAND AND PROTEST AND NOTICE OF PRESENTMENT, PROTEST,
DEFAULT, NONPAYMENT, MATURITY, RELEASE, COMPROMISE, SETTLEMENT,
EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER, ACCOUNTS, CONTRACT
RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND GUARANTIES AT ANY
TIME HELD BY BANK ON WHICH BORROWERS MAY IN ANY WAY BE LIABLE AND
HEREBY RATIFY AND CONFIRM WHATEVER BANK MAY DO IN THIS REGARD; (iii)
NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF THE COLLATERAL OR ANY
BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING
BANK TO EXERCISE ANY OF BANK'S REMEDIES; (iv) THE BENEFIT OF ALL
VALUATION, APPRAISEMENT AND EXEMPTION LAWS AND ALL RIGHTS WAIVABLE
UNDER ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE; (v) ANY RIGHT BORROWERS
MAY HAVE UPON PAYMENT IN FULL OF THE OBLIGATIONS TO REQUIRE BANK TO
TERMINATE ITS SECURITY INTEREST IN THE COLLATERAL OR IN ANY OTHER
PROPERTY OF BORROWERS UNTIL TERMINATION OF THE LOAN AND SECURITY
AGREEMENT IN ACCORDANCE WITH ITS TERMS AND THE EXECUTION BY BORROWERS,
AND BY ANY PERSON WHO PROVIDES FUNDS TO BORROWERS WHICH ARE USED IN
WHOLE OR IN PART TO SATISFY THE BORROWERS' OBLIGATIONS, OF AN AGREEMENT
INDEMNIFYING BANK FROM ANY LOSS OR DAMAGE BANK MAY INCUR AS THE RESULT
OF DISHONORED CHECKS OR OTHER ITEMS OF PAYMENT RECEIVED BY BANK FROM
BORROWERS OR ANY ACCOUNT DEBTOR AND APPLIED TO THE OBLIGATIONS AND
RELEASING AND INDEMNIFYING, IN THE SAME MANNER AS DESCRIBED IN SECTION
6 HEREOF, THE RELEASEES FROM ALL CLAIMS ARISING ON OR BEFORE THE DATE
OF SUCH TERMINATION STATEMENT; AND (vi) NOTICE OF ACCEPTANCE HEREOF AND
BORROWERS ACKNOWLEDGE THAT THE FOREGOING WAIVERS ARE A MATERIAL
INDUCEMENT TO BANK'S ENTERING INTO THIS FIRST AMENDMENT AND THAT BANK
IS RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH
BORROWERS. BORROWERS WARRANT AND REPRESENT THAT THEY HAVE REVIEWED THE
FOREGOING WAIVERS WITH THEIR LEGAL COUNSEL AND HAVE KNOWINGLY AND
VOLUNTARILY WAIVED THEIR JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS FIRST AMENDMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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6. REFERENCE TO AND EFFECT ON LOAN AND SECURITY AGREEMENT.
(1) On and after the First Amendment Effective Date, each reference in
the Loan and Security Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import, and each reference to any
of such agreements in any of the other documents delivered in
connection therewith, shall mean and be a reference to the Loan and
Security Agreement as amended hereby.
(1) Except as specifically amended above, the Loan and Security
Agreement and its terms, conditions, representations and warranties are
incorporated herein and, except as amended and modified hereby, is
ratified and confirmed in all respects, as if re-executed as of the
date of this First Amendment.
(1) Notwithstanding this First Amendment, Bank is not in any way
obligated to further modify, extend or amend the Loan and Security
Agreement or to forebear or forestall any collection efforts or other
remedies it may have under the Loan and Security Agreement or at law.
(1) The execution, delivery and effectiveness of this First Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Bank under the Loan and Security
Agreement, and the waiver set forth herein shall not operate or be
construed to operate as a waiver of any subsequent breach or Event of
Default.
6. COLLATERAL DOCUMENTS. Borrowers hereby agree to execute and deliver to
Bank any documents that Bank may reasonably request, in form and substance
satisfactory to Bank, relating to this First Amendment, including, but not
limited to, any such documents described in Section 6.1 of the Loan and Security
Agreement, which such documents may be requested at any time before or after the
First Amendment Effective Date. Borrowers heretofore executed and delivered to
Bank certain instruments and documents in connection with the Loan and Security
Agreement and the transactions described therein (including the filing or
recording thereof) (the "Loan Documents") and Borrowers hereby acknowledge and
agree that, notwithstanding the execution and delivery of this First Amendment,
the Loan Documents remain in full force and effect and the rights and remedies
of the Bank thereunder, the obligations of Borrowers thereunder and the liens
and security interests created and provided for thereunder remain in full force
and effect and shall not be affected, impaired or discharged hereby. Nothing
herein contained shall in any manner affect or impair the priority of the liens
and security interests created and provided for in the Loan Documents as to the
indebtedness which would be secured thereby prior to giving effect to this First
Amendment.
14
15
6. EXPENSES. Notwithstanding anything contained in the Loan and Security
Agreement to the contrary, the parties hereto agree that Borrowers shall pay the
costs and expenses of, or incurred by, the Bank in connection with the
negotiation, preparation, execution and delivery of this First Amendment and the
other instruments and documents executed and delivered in connection with the
transactions described herein (including the filing or recording thereof),
including the fees and expenses of counsel for the Bank.
6. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
6. GOVERNING LAW. This First Amendment shall be governed and construed
with reference to the laws of the State of Illinois, without regard to
principles of conflicts of law.
6. HEADINGS. Section headings in this First Amendment are included herein
for convenience of reference only and shall not constitute a part of this First
Amendment for any other purposes.
[SIGNATURE PAGES FOLLOW]
15
16
IN WITNESS WHEREOF, this First Amendment has been duly executed on the
day and year specified in the beginning hereof.
XXXX XXXXXX STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
-----------
XXXX XXXXXX MERCHANDISING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
------------
XXXX XXXXXX RETAILING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
------------
XXXX XXXXXX DISTRIBUTING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
------------
THE X. XXXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
------------
XXXXXXXX PROPERTY CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
16
17
Its: CFO
------------
XXXXXXXX WORLDWIDE CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Its: CFO
------------
Address for Notices to Borrowers:
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: Finance VP
------------
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Lane X. Xxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
17
18
EXHIBIT B
FIRST AMENDED AND RESTATED REVOLVING NOTE
$45,000,000 Chicago, Illinois
August 18, 2000
FOR VALUE RECEIVED, on or before August 31, 2001 (or, if such day is
not a Business Day, on the next following Business Day), the undersigned, XXXX
XXXXXX STORES, INC., XXXX XXXXXX MERCHANDISING, INC., XXXX XXXXXX RETAILING,
INC., XXXX XXXXXX DISTRIBUTING, INC., THE X. XXXXXXXX COMPANY, XXXXXXXX
WORLDWIDE CORP., each an Indiana corporation, and XXXXXXXX PROPERTY CORP., a
Delaware corporation (together with their successors and assigns, the
"Borrowers"), jointly and severally, promise to pay to the order of LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (herein, together with its
successors and assigns, called the "Bank"), the maximum principal sum available
of FORTY-FIVE MILLION and 00/100 DOLLARS ($45,000,000) or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by Bank to the
Borrowers pursuant to that certain Amended and Restated Loan and Security
Agreement originally dated as of April 28, 2000 by and among the Borrowers and
Bank (herein, as amended by the First Amendment to Loan and Security Agreement
dated August 18, 2000, and as the same may be further amended, modified or
supplemented from time to time, called the "Loan Agreement") as shown in the
Bank's records.
The Borrowers further promise to pay to the order of Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at such rates and at such times as shall be
determined in accordance with the provisions of the Loan Agreement. Accrued
interest shall be payable on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America in immediately available funds at the
Bank's principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as may be designated by Bank to the Borrowers in writing.
19
This Note is the Revolving Note referred to in, evidencing indebtedness
incurred under, and is subject to the terms and provisions of, the Loan
Agreement. The Loan Agreement, to which reference is hereby made, sets forth
said terms and provisions, including, but not limited to, those under which this
Note may be paid prior to its due date or may have its due date accelerated.
Terms used but not otherwise defined herein are used herein as defined in the
Loan Agreement. This Note is secured by the personal property described in and
pursuant to the Loan Agreement and various Other Agreements referred to therein,
and reference is made thereto for a statement of terms and provisions of such
Collateral security, a description of Collateral and the rights of Bank in
respect thereof.
In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement hereinabove referred to, the Borrowers further
agree, subject only to any limitation imposed by applicable law, to pay all
expenses, including attorneys' fees and expenses, incurred by the holder of this
Note in seeking to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
The liability of each Borrower under this Note in general shall be
joint and several, and each reference herein to the Borrowers shall be deemed to
refer to each such Borrower. In furtherance and not in limitation of Bank's
rights and remedies hereunder or at law, Bank may proceed under this Note
against any one or more of the Borrowers in its absolute and sole discretion for
any Borrower's obligations under the Loan Agreement or any other liability or
obligation of the any Borrower arising hereunder.
This Note replaces in its entirety and is in substitution for, but not
in payment of, (i) that certain Amended and Restated Revolving Note dated as of
May 2, 2000 (the "Prior Revolving Note") made by Borrowers in favor of the Bank
in the maximum principal amount available of $37,000,000 and does not and shall
not be deemed to constitute a novation thereof. Such Prior Note shall be of no
further force and effect upon the execution of this Note; provided, however,
that all outstanding indebtedness, including, without limitation, principal and
interest, under the Prior Note as of the date of this Note is hereby deemed
indebtedness evidenced by this Note and is incorporated herein by this
reference.
This Note is binding upon each Borrower and its successors and assigns,
and shall inure to the benefit of Bank and its successors and assigns. This Note
is made under and governed by the laws of the State of Illinois without regard
to conflict of laws or principles.
[SIGNATURE PAGES FOLLOW]
20
IN WITNESS WHEREOF, each Borrower has executed this Note as of the day
and year first above written.
ATTEST: XXXX XXXXXX STORES, INC.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
ATTEST: XXXX XXXXXX MERCHANDISING, INC.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
ATTEST: XXXX XXXXXX RETAILING, INC.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
ATTEST: XXXX XXXXXX DISTRIBUTING, INC.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
ATTEST: THE X. XXXXXXXX COMPANY,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
21
ATTEST: XXXXXXXX PROPERTY CORP.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
ATTEST: XXXXXXXX WORLDWIDE CORP.,
an Indiana corporation
By: By:
------------------------ -----------------------------
Its: Secretary Its:
----------------
Borrowers' Address:
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
