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EXHIBIT 4(a)(iv)
AMENDED AND RESTATED ASSUMPTION AGREEMENT
AND AMENDMENT TO LOAN DOCUMENTS
THIS AMENDED AND RESTATED ASSUMPTION AGREEMENT AND AMENDMENT TO LOAN
DOCUMENTS (this "Amendment") is made and entered into as of November 9, 2000 by
and among Xxxx Xxxxxx Stores, Inc., Xxxx Xxxxxx Merchandising, Inc., Xxxx Xxxxxx
Retailing, Inc., and Xxxx Xxxxxx Distributing, Inc., as debtors and
debtors-in-possession (collectively, the "Debtors"), and The X. Xxxxxxxx
Company, Xxxxxxxx Property Corp. and Xxxxxxxx Worldwide Corp. (the latter three
entities, collectively, the "Non-Debtor Subsidiaries," and together with the
Debtors, collectively, the "Borrowers"), and LaSalle Bank National Association
("Bank").
RECITALS
A. Borrowers and Bank are parties to that certain Amended and
Restated Loan and Security Agreement dated as of April 28, 2000 (as amended,
restated, supplemented or otherwise modified in writing from time to time prior
to the Petition Date, the "Pre-Petition Loan Agreement" and together with the
Other Agreements (as defined in the Pre-Petition Loan Agreement as amended,
restated, supplemented or otherwise modified in writing prior to the Petition
Date, collectively, the "Pre-Petition Loan Documents"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth in the
Pre-Petition Loan Agreement, as amended hereby (the "Loan Agreement").
B. On or about October 13, 2000, the Non-Debtor Subsidiaries
consummated certain transactions pursuant to which substantially all of their
respective assets were sold or liquidated.
C. On October 16, 2000 (the "Petition Date"), Debtors filed
petitions for relief under chapter 11 of title 11 of the United States Code (the
"Bankruptcy Code"), in the United States Bankruptcy Court for the Southern
District of Indiana, Indianapolis Division (the "Bankruptcy Court"), Case No.
00-00000-00 (collectively, the "Bankruptcy Cases").
D. The commencement of the Bankruptcy Cases constituted an Event of
Default under the Pre-Petition Loan Agreement.
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E. In order to continue Debtors' operations as debtors-in-possession
under the Bankruptcy Code pending their reorganization, Borrowers have requested
that Bank continue making secured loans to Debtors pursuant to the Pre-Petition
Loan Documents, as amended hereby (the "DIP Financing"). Bank is willing to
continue financing Debtors only if, among other things, the Pre-Petition Loan
Documents are amended as hereinafter set forth, and the Bankruptcy Court enters
an Interim Financing Order and Final Financing Order approving this Amendment
and otherwise in form and substance satisfactory to Bank.
F. On October 17, 2000, the Bankruptcy Court entered the Interim
Financing Order approving the DIP Financing on an interim basis, and the parties
hereto entered into that certain Assumption Agreement and Amendment to Loan
Documents (the "Original Amendment") in the form attached as Annex A to the
Interim Financing Order.
G. Subsequently, the parties hereto agreed to amend and restate the
Original Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to amend and restate the Original
Amendment as follows:
1. Amendments. The parties hereby amend the Pre-Petition Loan
Documents as follows:
a. From and after the date hereof, all references in the Loan
Agreement and the Other Agreements to (i) "Xxxx Xxxxxx," "Merchandising,"
"Retailing," or "Distributing" or any other reference to any such entity in any
capacity shall be deemed to be references to Xxxx Xxxxxx Stores, Inc., Xxxx
Xxxxxx Merchandising, Inc., Xxxx Xxxxxx Retailing, Inc., or Xxxx Xxxxxx
Distributing, Inc., as applicable, both before the Petition Date, as
pre-petition debtors, and on or after the Petition Date, as
debtors-in-possession in the Bankruptcy Cases, and (ii) all or any portion of
the Pre-Petition Loan Agreement and the other Pre-Petition Loan Documents shall
mean and include the Pre-Petition Loan Agreement and the Pre-Petition Loan
Documents, in each case, as amended by this Amendment.
b. When used in the Loan Agreement and the Other Agreements, the
terms "Bankruptcy Court," "DIP Financing," "Pre-Petition Loan Documents,"
"Petition Date," "Pre-Petition Loan Agreement," and "Bankruptcy Cases" shall
have the meanings set forth in the Recitals of this Amendment.
c. When used in the Loan Agreement and the Other Agreements, the
terms "Debtors," "Initial Approved Budget," "Pre-Petition Collateral," "DIP
Collateral," "Non-Debtor Subsidiary," "Non-Debtor Subsidiary Collateral,"
"Pre-Petition Indebtedness," "DIP Indebtedness," "DIP Loan Documents," "Loan
Payment Date," "Prior Claims" and "Carve-Out" shall have the meanings set forth
in the Final Financing Order.
d. When used in the Loan Agreement and the Other Agreements, the
following terms shall have the following meanings (and to the extent such terms
are currently defined in the Pre-Petition Loan Agreement, the following
definitions shall amend and restate the applicable definitions set forth in the
Pre-Petition Loan Agreement):
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"Agreement" means that certain Amended and Restated Loan and
Security Agreement dated as of April 28, 2000, among the Borrowers and
Bank, as amended by the First Amendment to Loan and Security Agreement
dated as of August 18, 2000 and the Forbearance Agreement and Second
Amendment to Loan and Security Agreements dated as of October 13, 2000
and as otherwise amended or modified in writing through the Petition
Date and as further amended by the Assumption Agreement, and as the
foregoing may thereafter be extended, amended, supplemented or
otherwise modified from time to time, including, without limitation,
pursuant to the Interim Financing Order, the Final Financing Order or
any other order of the Bankruptcy Court to which Bank has consented in
writing in its sole discretion.
"Assumption Agreement" means that certain Amended and Restated
Assumption Agreement and Amendment To Loan Documents dated as of
November 9, 2000, among Borrowers and Bank.
"Borrowers' Liabilities" means any and all of the respective
obligations, liabilities and indebtedness of each Borrower to Bank or
to any parent, affiliate or subsidiary of Bank of any and every kind
and nature, howsoever created, arising or evidenced and howsoever
owned, held or acquired, whether now or hereafter existing, whether
now due or to become due, whether primary, secondary, direct,
indirect, absolute, contingent or otherwise (including, without
limitation, obligations of performance), whether several, joint or
joint and several, and whether arising or existing under written or
oral agreement or by operation of law, and whether arising or existing
before, on or after the Petition Date. Without limiting the generality
of the foregoing, the term "Borrowers' Liabilities" shall include all
Pre-Petition Indebtedness and all DIP Indebtedness as those terms are
defined in the Final Financing Order.
"DIP Closing Date" means October 17, 2000.
"Early Termination Date" means the Loan Payment Date, as defined
in the Final Financing Order.
"Final Financing Order" means an order of the Bankruptcy Court
entered in the Bankruptcy Cases after the Final Hearing (as defined in
the Interim Financing Order) pursuant to Sections 363 and 364 of the
Bankruptcy Code, inter alia, authorizing the Debtors, as
debtors-in-possession, to continue to incur secured indebtedness
pursuant to Section 364 of the Bankruptcy Code, the Agreement and the
Other Agreements, which order shall be in form and substance
satisfactory to Bank in its sole discretion.
"Interim Financing Order" means the order of the Bankruptcy Court
entered in the Bankruptcy Cases on October 17, 2000, pursuant to
Sections 363 and 364 of the Bankruptcy Code, inter alia, authorizing
Debtors to incur secured indebtedness pursuant to Section 364 of the
Bankruptcy Code and to enter into
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and/or assume the Assumption Agreement and the other DIP Loan
Documents, which order shall be in form and substance satisfactory to
Bank in its sole discretion.
"Maturity Date" means June 30, 2001.
"Other Agreements" means, collectively, the Agreement, the Note,
the Mortgage, the Interim Financing Order, the Final Financing Order
and all other agreements, instruments and documents, including,
without limitation, letters of credit, guarantees, mortgages, trust
deeds, pledges, powers of attorney, consents, assignments, contracts,
notices, security agreements, leases, financing statements and all
other writings heretofore, now or from time to time hereafter (whether
before, on or after the Petition Date) executed by or on behalf of any
Borrower or any other Person and delivered to Bank or to any parent,
affiliate or subsidiary of Bank in connection with any of the
Borrowers' Liabilities or the transactions contemplated hereby or
thereby, as the same may be modified, amended, extended, restated or
supplemented from time to time (including, without limitation, by any
the DIP Loan Documents (as defined in the Final Financing Order) or
any order of the Bankruptcy Court). Without limiting the foregoing,
the term "Other Agreements" shall include all DIP Loan Documents.
"Revolving Loans" means revolving loans and advances made under
the Revolving Credit Commitment, whether made before, on or after the
Petition Date.
"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. $20,000,000
Carryover Inventory. $ 5,000,000
plus (B) [Intentionally omitted]
plus (C) seventy percent (70%) of the fair market value of
the Mortgaged Property, which is the amount of Four Million Four
Hundred Eighty
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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";
plus (D) the Special Advance available as described in
Paragraph 2.1(b) of this Agreement.
For purposes hereof, "Advance Ratio" shall mean (i) up to
Seventy-Five Percent (75%) from the Petition Date through December 22,
2000; (ii) up to Seventy Percent (70%) from December 23, 2000 through
December 29, 2000; and (iii) up to Fifty Nine Percent (59%) from
December 30, 2000 through the Maturity Date.
e. The definition of "Eligible Inventory" in Paragraph 1.1 of the
Pre-Petition Loan Agreement is hereby amended by adding the following at the end
thereof:
"Notwithstanding anything to the contrary herein, the term
"Eligible Inventory" shall exclude any Inventory of any of the
Non-Debtor Subsidiaries or any Inventory located at the stores or
other facilities of any of the Non-Debtor Subsidiaries."
f. Paragraph 2.1 of the Existing Loan Agreement is hereby amended by
inserting the following at the end thereof:
"Without limiting the right of Bank to establish other Reserves in
accordance with the provisions of this Agreement, in the event any
Borrower sells or otherwise disposes of any property other than
Inventory sold in the ordinary course of business (the proceeds of
which are required to be remitted to Bank for application to the
Obligations), Bank shall be entitled to establish a Reserve against
the Revolving Loan Borrowing Base in an amount equal to the proceeds
from each such sale or other disposition."
g. Paragraph 2.1(b) of the Existing Loan Agreement is hereby amended
and restated in its entirety to read as follows:
(iii) 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 DIP
Closing Date in the principal amount of ONE MILLION FIVE HUNDRED
THOUSAND DOLLARS ($1,500,000) (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 secured by all
of the Collateral as provided herein, and shall be due and payable as
follows: (i) $150,000 on October 20, 2000, (ii) $150,000 on October
27, 2000, (iii) $150,000 on November 3, 2000, (iv) $150,000 on
November 10, 2000, (v) $150,000 on November 17, 2000, (vi) $150,000 on
November 24, 2000, (vii) $300,000 on December 1, 2000, and (viii)
$300,000 on December 8, 2000;
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provided, however, that any unpaid portion of the Special Advance
shall be due and payable on the Early Termination Date.
h. Paragraph 2.3 of the Pre-Petition Loan Agreement and all other
applicable provisions of the Pre-Petition Loan Documents are hereby amended to
provide that no Letters of Credit will be issued from or after the Petition Date
for the account of any Non-Debtor Subsidiary under any circumstances unless
Bank, in its sole discretion, otherwise agrees in writing.
i. The definition of "Permitted Debt" in Paragraph 11.3(d) of the
Pre-Petition Loan Agreement is hereby amended by adding the following sentence
at the end thereof:
"Notwithstanding anything to the contrary herein, the term
"Permitted Debt" shall not include any Debt first incurred on or after
the Petition Date."
j. The parties hereto agree and acknowledge that interest shall
accrue on all Loans and other Borrowers' Liabilities at the default rate of
interest applicable to Prime Rate Loans, and the Pre-Petition Loan Agreement is
hereby amended to so provide.
k. Paragraph 5 of the Pre-Petition Loan Agreement is hereby amended
to add the following new subparagraph 5.13:
"(j) DIP Financing Fee. On the DIP Closing Date, Borrowers will
pay to Bank a closing fee equal to $50,000, and this closing fee will be
fully earned and nonrefundable on the DIP Closing Date."
In addition, the Borrowers hereby reaffirm their joint and several
obligation to pay, and hereby agree to pay, the unpaid $300,000 portion of the
Closing Fee and the entire Success Fee, which Fees were previously earned on the
First Amendment Effective Date. Paragraph 3 of that certain First Amendment to
Loan and Security Agreement dated as of August 18, 2000, is hereby amended to
provide that the remaining $300,000 balance of the Closing Fee shall be due and
payable on December 15, 2000. The Success Fee shall continue to be due and
payable on December 29, 2000.
l. The Pre-Petition Loan Agreement is hereby amended to prohibit the
making of any LIBOR Rate Loans.
m. The Pre-Petition Loan Agreement is hereby amended to prohibit the
making of any Revolving Loans or other extensions of credit or any distributions
or other transfers to any Non-Debtor Subsidiary unless (A) Bank, in its sole
discretion, otherwise agrees in writing or (B) such payment or transfer to or
for the benefit of any Non-Debtor Subsidiary is permitted under the Xxxxxxxx
Transaction Documents.
n. Paragraph 7.1 of the Pre-Petition Loan Agreement is hereby
amended and restated in its entirety as follows:
"7. Grant of Security Interest and Super-Priority Administrative
Status.
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Borrowers hereby confirm their grant to Bank of a security interest in
the Collateral (as defined in paragraph 7 of the Pre-Petition Loan
Agreement) pursuant to the Pre-Petition Loan Documents. Borrowers
further confirm that the security interests granted in the
Pre-Petition Loan Documents extend to all assets described in
paragraph 7 of the Pre-Petition Loan Agreement, whether arising or
acquired prior to, on or after the Petition Date and secure all
Borrowers' Liabilities, whether arising prior to, on or after the
Petition Date. Furthermore, subject to the Carve-Out (as defined in
the Final Financing Order), and the provisions of ordering paragraph 6
in the Final Financing Order, to secure the payment and performance of
the Borrowers' Liabilities (whether arising prior to, on or after the
Petition Date), including all renewals, extensions, restructurings and
refinancings of any or all of the Borrowers' Liabilities, Borrowers,
jointly and severally, hereby grant to Bank, a continuing security
interest, lien and mortgage in and to all of the respective right,
title and interest of Borrowers, as pre-petition debtors and
debtors-in-possession, in all real and personal property and interests
in real and personal property of Borrowers (as pre-petition debtors
and debtors-in-possession in the case of the Debtors), whether arising
or acquired prior to, on or after the Petition Date and regardless of
where located (collectively, "Collateral"), including, without
limitation, (a) accounts (including, without limitation, all of each
Borrower's Accounts Receivable), chattel paper, contract rights,
letters of credit, instruments and documents (sometimes hereinafter
individually and collectively referred to as "Accounts"), and all
goods whose sale, lease or other disposition by each Borrower which
have given rise to Accounts and have been returned to or repossessed
or stopped in transit by any Borrower; (b) Inventory; (c) goods (other
than Inventory), machinery, Equipment, vehicles and fixtures
(hereinafter individually and collectively referred to as "Equipment";
(d) General Intangibles; (e) monies, reserves, deposits, deposit
accounts and interest or dividends thereon, securities, cash, cash
equivalents and other property now or at any time or times hereafter
in the possession or under the control of Bank or its bailee; (f)
liens, guarantees and other rights and privileges pertaining to any of
the foregoing; (g) all books, records and computer records in any way
relating to the foregoing; (h) all Facilities and the Mortgaged
Property; (i) all other assets of each Borrower whether real,
personal, tangible or intangible or mixed, now existing or hereafter
acquired, created, built or otherwise coming into being together with
all improvements thereon (including, without limitation, all of
Borrowers' respective leasehold interests, rights of tenancy or other
rights to occupy the premises occupied or controlled by any Borrower);
(j) subject to the limitations in the Final Financing Order, all
causes of action and claims of each Debtor's estate against third
parties, including, without limitation, claims of each Debtor as
debtor-in-possession under the Bankruptcy Code and all proceeds of
avoidance claims of each Debtor under Sections 544, 545, 547, 548, 551
or 553 of the Bankruptcy Code (such avoidance claims, collectively,
"Avoidance Actions"); and (k) all additions and accessions to,
substitutions for, and replacements, rents, profits, products and
proceeds of any of the foregoing, including, without limitation, the
proceeds of any insurance policies covering any of the above-described
property. As provided in the Final Financing Order, and subject
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to the Carve-Out, the Borrowers' Liabilities shall have the highest
administrative priority under Section 364(c)(1) of the Bankruptcy
Code, and shall have priority over all other costs and expenses of
administration of any kind, including those specified in, or ordered
pursuant to, Sections 105, 326, 330, 331, 503(b), 506(c), 507(b) or
726 or any other provision of the Bankruptcy Code or otherwise
(whether incurred in any Bankruptcy Case, any conversion of any
Bankruptcy Case pursuant to ss. 1112 of the Bankruptcy Code, or in any
other proceedings related thereto), and shall at all times be senior
to the rights of the Debtor, any Non-Debtor Subsidiary, any successor
trustee or estate representative in any Bankruptcy Case or any
subsequent case or proceeding under the Bankruptcy Code and have the
highest administrative priority under Section 364(c)(1) of the
Bankruptcy Code."
o. The definition of "Permitted Liens" in Paragraph 4.3(a) of the
Pre-Petition Loan Agreement is hereby amended by adding the following sentence
at the end thereof:
"Notwithstanding anything to the contrary herein, the term "Permitted
Liens" shall not include any liens, security interests, encumbrances,
charges, restrictions, easements, or any other Liens to the extent
they first arise on or after the Petition Date."
p. Paragraph 7.4 of the Pre-Petition Loan Agreement is hereby
amended (i) to delete the ";" after the word "demand" in the seventh line of
such Paragraph, and to substitute therefor ".", and (ii) to delete the proviso
at the end of such paragraph.
q. Paragraph 13.3 of the Pre-Petition Loan Agreement is hereby
amended by deleting the phrase "Following an Event of Default," and substituting
therefor the phrase "Subject to the Final Financing Order, as the case may be,".
r. Paragraph 11.2(f) of the Pre-Petition Loan Agreement is hereby
amended and restated in its entirety as follows:
"(f) Financial Covenants. Comply with the following financial
covenants:
(i) Shall not make cumulative disbursements for, or on
behalf of, any or all Debtors in excess of the sum of the Applicable Adjustment
Amount plus the following amount for each period set forth below:
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PERIOD MAXIMUM DISBURSEMENT AMOUNT
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10/22/00 - 10/28/00 $ 8,006,000
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10/22/00 - 11/04/00 18,916,000
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10/22/00 - 11/11/00 26,476,000
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10/22/00 - 11/18/00 33,483,000
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10/22/00 - 11/25/00 40,402,000
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10/22/00 - 12/02/00 50,454,000
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10/22/00 - 12/09/00 56,287,000
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10/22/00 - 12/16/00 60,333,000
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10/22/00 - 12/23/00 64,467,000
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10/22/00 - 12/30/00 67,828,000
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10/22/00 - 1/06/01 73,576,000
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10/22/00 - 1/13/01 78,943,000
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10/22/00 - 1/20/01 85,237,000
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10/22/00 - 1/27/01 90,216,000
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As used herein, the term "Applicable Adjustment Amount" means with
respect to any of the foregoing time periods specified in this
subparagraph 11.2(f)(i), an amount equal to the dollar amount, if any,
by which (i) the actual level of sales of Inventory of the Debtors in
the ordinary course for such time period exceeds (ii) the budgeted
amount of sales set forth in the Budget for such time period.
(ii) Maintain the following minimum aggregate level of
sales of Inventory of the Debtors in the ordinary course of business
for each of the following periods, which sales levels shall be
reported to Bank in writing on or before noon of the first Tuesday
immediately following the end of the applicable time period.
PERIOD MINIMUM SALES AMOUNT
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10/22/00 - 10/28/00 $ 4,000,000
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10/22/00 - 11/04/00 8,000,000
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10/22/00 - 11/11/00 13,000,000
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10/22/00 - 11/18/00 18,250,000
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10/22/00 - 11/25/00 23,300,000
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10/22/00 - 12/02/00 35,190,000
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10/22/00 - 12/09/00 44,012,000
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10/22/00 - 12/16/00 55,204,000
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10/22/00 - 12/23/00 66,430,000
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10/22/00 - 12/30/00 72,510,000
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10/22/00 - 1/06/01 76,062,000
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10/22/00 - 1/13/01 79,762,000
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10/22/00 - 1/20/01 83,759,000
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10/22/00 - 1/27/01 87,311,000
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(iii) The Borrowers agree that they shall submit to
Bank on or before December 15, 2000, a budget, in form and substance
satisfactory to Bank in its sole discretion (the "2001 Budget"),
setting forth the Debtors' projected sales, collections and
disbursement levels and projected amounts under the other line items
contained in the Initial Approved Budget on a weekly basis for the
period from February 1, 2001 through June 30, 2001. Borrowers' failure
to comply with the immediately preceding sentence shall constitute an
immediate Event of Default. The financial covenants set forth in
clauses (i), (ii) and (iii) in this subparagraph 11.2(f) shall be
extended to cover the period from February 1, 2001 through June 30,
2001, and shall be reset (as determined by the Bank) using (i) the
projections in the 2001 Budget, (ii) February 1, 2001 as the starting
date for
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each cumulative time period, and (iii) the same methodology used in
setting the financial covenants for the period ending January 31, 2001
(based on the Initial Approved Budget)."
s. Paragraph 11.2 of the Pre-Petition Loan Agreement is hereby
amended by adding the following new subparagraphs (xv) through (xviii):
"(xv) On each Tuesday (beginning on October 24, 2000), for each week
ending on the immediately preceding Sunday, the Borrowers will deliver
to Bank a report, in form and substance satisfactory to Bank, (a)
setting forth for the applicable week and on a cumulative basis for
the post-petition period ending on such Sunday, (i) the aggregate
amount of sales of Debtors' Inventory in the ordinary course of
business, (ii) the aggregate amount of cash receipts, (iii) letter of
credit issuances and payments, and (iv) the actual results under each
of the other line items in the Approved Budget and (b) comparing all
such actual results against the corresponding budgeted actual and
cumulative amounts for each line item, together with a certificate
signed by the chief financial officer or comptroller of Xxxx Xxxxxx,
setting forth Borrowers' determination as to their compliance or
non-compliance with the financial covenants set forth in Paragraph
11.2(f)(i), (ii) and (iii);
(xvi) On November 15, 2000, Borrowers will deliver to Bank, in form
and substance satisfactory to Bank, a consolidated monthly projected
income statement, balance sheet and cash flow statement for the
Debtors covering each of the months of November and December, 2000 and
January, 2001 (and in the case of the monthly balance sheets, as of
the end of each such month);
(xvii) On December 15, 2000, the Borrower shall deliver to Bank, in
form and substance satisfactory to Bank, a consolidated monthly
projected income statement, balance sheet and cash flow statement for
the Debtors covering each of the months of February through June, 2001
(and in the case of the monthly balance sheets, as of the end of each
such month); and
(xviii) On each Business Day (beginning on October 23, 2000), the
Borrowers will deliver to Bank a report, in form and substance
satisfactory to Bank, setting forth each particular disbursement made
by any Borrower."
t. Paragraph 12.1 of the Pre-Petition Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"12.1 Events of Default. The occurrence of any one of the following
events shall constitute a default ("Event of Default") by any Borrower
under this Agreement: (a) if any Borrower fails or neglects to
perform, keep or observe any covenant or agreement contained in this
Agreement or in the Other Agreements which is required to be
performed, kept or observed by Borrowers; (b) if any representation or
warranty made by any Borrower herein or in any Other Agreement is
breached or is false or misleading in any material respect, or any
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exhibit, schedule, certificate, financial statement, report, notice or
other writing furnished by any Borrower or any of its partners,
shareholders, directors, officers, employees, managers, members or
representatives to Bank is false or misleading in any material respect
on the date as of which the facts therein are stated or certified; (c)
if any Borrower fails to pay Borrowers' Liabilities when due and
payable or declared due and payable; (d) [intentionally omitted]; (e)
[intentionally omitted]; (f) [intentionally omitted]; (g)
[intentionally omitted]; (h) [intentionally omitted]; (i) if a notice
of lien, levy or assessment is filed of record on or after the
Petition Date with respect to any or all of the Collateral by the
United States or any department, agency or instrumentality thereof or
by any state, county, municipal or any other governmental agency,
including without limitation the PBGC, or if any taxes or debts owing
at any time or times thereafter to any one of them becomes a lien or
encumbrance upon any of the Collateral and the same is not released
within thirty (30) days after the same becomes a lien or encumbrance;
(j) [intentionally omitted]; (k) [intentionally omitted]; (l)
[intentionally omitted]; (m) [intentionally omitted]; (n) the
occurrence of a material breach, a default or an event of default by
any Borrower under any of the Other Agreements; (o) any guaranty of
Borrowers' Liability shall be terminated, curtailed or restricted in
scope without Bank's consent; (p) [intentionally omitted]; (q) any
post-petition material adverse change occurs in any Borrower's
business, assets, operations, prospects or condition, financial or
otherwise; (r) the prospect of repayment of any portion of the
Borrowers' Liabilities where the value or priority of Bank's security
interest in the Collateral is materially impaired at any time after
the Petition Date; (s) any material portion of any Borrower's assets
is seized, attached, subjected to a writ or distress warrant, is
levied upon or comes into the possession of any judicial officer; (t)
any Borrower shall generally not pay its post-petition debts as they
become due; (u) any post-petition notice of any lien, levy or
assessment is filed of record with respect to any Borrower's assets
which is not discharged within 15 days from the occurrence thereof;
(v) any final judgments are entered against any Borrower at any time
after the Petition Date in an aggregate amount exceeding $100,000,
which are not covered by insurance and which remain unpaid, unstayed,
undischarged, unbonded or undismissed for a period of 15 days from the
occurrence thereof; (w) any post-petition default shall occur under
any material agreement between any Borrower and any third party,
including, without limitation, any default which would entitle such
third party to accelerate the maturity of any Debt of any such
Borrower to such third party; (x) any Bankruptcy Case is converted to
a case under Chapter 7 of the Bankruptcy Code; (y) a trustee or an
examiner with enlarged powers (beyond those set forth in Sections
1106(a)(3) and (4) of the Bankruptcy Code) relating to the operation
of the business of any Debtor is appointed in any Bankruptcy Case or
any Debtor applies for, consents to, or acquiesces in, any such
appointment; (z) except as expressly permitted in the Final Financing
Order (including, without limitation, ordering paragraph 11 of the
Final Financing Order relating to the Carve-Out), any Debtor files any
application for approval or allowance of, or any order is entered
approving or allowing, any administrative expense claim in any
Bankruptcy Case, having any priority over, or being pari
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passu with, the superadministrative priority of the Borrowers'
Liabilities; (aa) an order is entered in any Bankruptcy Case granting
relief from the automatic stay of Section 362 of the Bankruptcy Code
(i) to any holder or holders of a Lien on any material collateral in
allowing such holder or holders to foreclose or otherwise realize upon
such Liens, or (ii) to any party in interest if such relief is of a
kind that would otherwise not be permitted under this Agreement or any
Other Agreement; (bb) the Final Financing Order (in form and substance
satisfactory to Bank in its sole discretion) is not entered by the
Bankruptcy Court on or before November 30, 2000, or such later date as
Bank, in its sole discretion, may consent to in writing after the date
hereof, (cc) the Interim Financing Order or the Final Financing Order
is stayed, reversed, vacated, amended or otherwise modified in any
respect without the prior written consent of Bank, which consent may
be withheld in its sole discretion; (dd) the Bankruptcy Court or any
other court enters an order or judgment in any Bankruptcy Case
modifying, limiting, subordinating or avoiding the priority of any
Borrowers' Liabilities or the perfection, priority or validity or
Bank's pre-petition or post-petition Liens on any Collateral, or
imposing, surcharging or assessing against Bank or its claims or any
Collateral, any costs or expenses, whether pursuant to Section 506(c)
of the Bankruptcy Code or otherwise; (ee) any Debtor violates in any
material respect any term or provision of the Interim Financing Order
or the Final Financing Order; (ff) any motion or application is filed
by or on behalf of any Debtor in any Bankruptcy Case seeking the entry
of an order, or an order is entered in any Bankruptcy Case, approving
any subsequent debtor-in-possession facility for borrowed money or
other extensions of credit unless such subsequent facility and such
order expressly provide for the indefeasible payment and complete
satisfaction in full in cash to Bank of all Borrowers' Liabilities
prior to, or concurrently with, any initial borrowings or other
extensions of credit under such subsequent facility; (gg) any
Bankruptcy Case is dismissed; or (hh) any Debtor fails to deliver any
certified Borrowing Base certificate when due."
2. Forbearance re: Existing Events of Default. Nothing in this
Amendment or in any of the DIP Loan Documents or the Interim Financing Order or
the Final Financing Order shall constitute or be deemed to constitute a waiver
by Bank of (i) any existing or future Events of Default (including, without
limitation, the Events of Default arising from the commencement of these
Bankruptcy Cases), or (ii) any rights or remedies of Bank against any of the
Borrowers or any property of any of the Borrowers under any of the DIP Loan
Documents. Without prejudice to, or waiver of, (x) Bank's rights and remedies
against any Borrower in respect of any Events of Default other than the Existing
Defaults (as defined below), or (y) Bank's rights and remedies against any
Person other than any Borrower, Bank agrees to forbear from foreclosing its
Liens on any Collateral or otherwise taking enforcement action against any
Borrower based solely on any Existing Default; provided that such forbearance
shall terminate upon the occurrence of any Event of Default other than an
Existing Default. As used herein, the term "Existing Default" shall mean all
Events of Default existing as of the Petition Date and as to which Bank has
actual knowledge as of the date of this Amendment.
3. Entire Agreement and Acknowledgements of the Parties. The parties
hereto agree that the amendments set forth in this Amendment as modified by the
Final
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Financing Order constitute the entire agreement of the parties with respect to
the matters set forth herein, shall be limited precisely as written and shall
not be deemed to be a consent to any waiver, amendment or modification of any
other term or condition of the Loan Agreement or any Other Agreements.
4. Conditions Precedent. The effectiveness of this Amendment shall
be subject to satisfaction of the following conditions (any one or all of which
may be waived by Bank in its sole discretion):
a. Receipt by Bank of counterparts of this Amendment, duly executed
by the Borrowers and Bank; and
b. The Bankruptcy Court shall have approved and entered the Final
Financing Order in a form and in substance satisfactory to Bank in its sole
discretion.
5. References in Other Documents. All references to any Pre-Petition
Loan Document shall be deemed to be a reference to same as amended hereby.
6. Miscellaneous.
a. To induce Bank to enter into this Amendment, Borrowers hereby
jointly and severally represent and warrant to Bank that each Borrower has full
power and authority to enter into this Amendment, that this Amendment has been
duly authorized, executed and delivered by each Borrower, and that this
Amendment constitutes a legal, valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its terms.
b. This Amendment may be signed in any number of counterparts each
of which constitutes an original, but all of which, taken together, shall
constitute one and the same instrument.
c. It is the parties' intention that this Amendment be interpreted
in such a way that it is valid and effective under applicable law; however, if
one or more of the provisions of this Amendment shall for any reason by found to
be invalid or unenforceable, the remaining provisions of this Amendment shall be
unimpaired.
d. The parties hereto agree that Bank shall be promptly reimbursed
jointly and severally by Borrowers without order of the Bankruptcy Court for all
costs and expenses (including, without limitation, all filing and recording
fees, attorneys' and paralegals' fees and expenses and out-of-pocket audit
expenses) incurred by Bank in connection with: (i) the preparation of any or all
of the Interim Financing Order, the Final Financing Order, the Loan Agreement,
the Other Agreements and related instruments, documents and agreements; (ii) the
preservation and protection of Bank's rights hereunder and thereunder; (iii) the
collection of any or all Pre-Petition Indebtedness and DIP Indebtedness; (iv)
the defense of any claim or action asserted or brought against Bank by any
Person that arises from or relates to any or all of the Pre-Petition Loan
Documents, the Loan Agreement, the Other Agreements, or any matters in
connection therewith; (v) the commencement or defense of, or intervention in any
court
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proceeding in any Bankruptcy Case including any proceeding involving any
objection or complaint filed pursuant to ordering paragraph 25 of the Final
Financing Order, (vi) the filing of any petition, complaint, answer, motion or
other pleading, or taking of any other action in or with respect to the
Pre-Petition Collateral, the Non-Debtor Subsidiary Collateral or the DIP
Collateral; (viii) the review and analysis of any pleading filed in any
Bankruptcy Case: (viii) the protection, collection, lease, sale, taking
possession of, or liquidation of any of the Pre-Petition Collateral, the
Non-Debtor Subsidiary Collateral or the DIP Collateral or Bank's interest
therein, (ix) any attempt to enforce any security interest in any of the
Pre-Petition Collateral, the Non-Debtor Subsidiary Collateral or the DIP
Collateral; or (x) the rendering of any advice with respect to any of the
foregoing.
7. Choice of Law and Jurisdiction. To the extent not governed by the
provisions of the Bankruptcy Code, any dispute between any Borrower and Bank and
arising out of, connected with, related to, or incidental to the relationship
established between them in connection with this Amendment, and whether arising
in contract, tort, equity or otherwise, shall be resolved in accordance with the
internal laws and not the conflicts of law provisions of the State of Illinois.
8. Waiver of Jury Trial. THE PARTIES HERETO WAIVE ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AMENDMENT OR ANY MATTER ARISING HEREUNDER.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amended and Restated Assumption Agreement and Amendment to Loan Documents as of
the day and year first above written.
XXXX XXXXXX STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
XXXX XXXXXX MERCHANDISING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
XXXX XXXXXX RETAILING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
XXXX XXXXXX DISTRIBUTING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
THE X. XXXXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
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XXXXXXXX PROPERTY CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
XXXXXXXX WORLDWIDE CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Its: Senior VP - CFO
--------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Its: F.V.P.
--------------------------------
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