AMENDMENT NO. 6 TO AMENDED AND RESTATED LOAN AGREEMENT
AND TO OTHER LOAN DOCUMENTS
AMENDMENT AGREEMENT, dated as of April 16, 2001, to the Amended and
Restated Loan Agreement, dated as of July 31, 1995 (as the same has been or may
be further amended, supplemented, modified or restated in accordance with its
terms, the "Loan Agreement") among XXX RADIO AND TELEVISION, INC., an Ohio
corporation ("Xxx Radio"), XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation
("Xxxxx"), STEREO TOWN, INC., a Georgia corporation ("Stereo Town"), XXX KANSAS,
INC., a Kansas corporation ("Xxx Kansas"), XXX ALABAMA, INC., an Ohio
corporation ("Xxx Alabama"), XXXXXXXXX.XXX, INC., an Ohio corporation ("Xxx
Internet"), those financial institutions named as lenders on Schedule 2.01
thereto (the "Lenders") and FLEET BANK, N.A. (as successor to NatWest Bank
N.A.), in its capacity as agent (the "Agent") for itself and the Lenders.
Capitalized terms used herein and not otherwise defined shall have the meanings
attributed to them in the Loan Agreement.
SECTION I. AMENDMENTS TO LOAN AGREEMENT
1. Section 9.06 of the Loan Agreement is hereby amended by deleting
each reference to "$40,000,000" appearing in clause (xi) thereof and
substituting "$60,000,000" therefor.
SECTION II. AMENDMENT TO PARENT GUARANTY
1. Section 14 of the Parent Guaranty is hereby amended by deleting each
reference to "$40,000,000" appearing in paragraph (g) thereof and substituting
"$60,000,000" therefor.
SECTION III. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective upon the execution and
delivery of counterparts hereof by the Borrowers, the Parent, the Agent and the
Required Lenders and the fulfillment of the following conditions:
1. No unwaived event has occurred and is continuing which constitutes a
Default or an Event of Default.
2. All representations and warranties made by the Borrowers and the
Parent in this Amendment Agreement shall be true and correct.
3. All required corporate actions in connection with the execution and
delivery of this Amendment Agreement shall have been taken, and each shall be
satisfactory in
form and substance to the Agent, and the Agent shall have received all
information and copies of all documents, including, without limitation, records
of requisite corporate action that the Agent may reasonably request, to be
certified by the appropriate corporate person or governmental authorities.
SECTION IV. MISCELLANEOUS
1. By its signature below, each of the Borrowers reaffirms and restates
the representations and warranties set forth in Article VII of the Loan
Agreement, and all such representations and warranties are true and correct on
the date hereof with the same force and effect as if made on such date (except
to the extent that they relate expressly to an earlier date). The Parent
reaffirms and restates the representations and warranties set forth in Section
14 of the Parent Guaranty, and all such representations and warranties are true
and correct on the date hereof with the same force and effect as if made on such
date (except to the extent that they relate expressly to an earlier date). In
addition, each of the Borrowers and the Parent represents and warrants (which
representations and warranties shall survive the execution and delivery hereof)
to the Agent and the Lenders that:
(a) it has the power and authority to execute, deliver and carry out
the terms and provisions of this Amendment Agreement and the transactions
contemplated hereby, and has taken or caused to be taken all necessary actions
to authorize the execution, delivery and performance of this Amendment Agreement
and the transactions contemplated hereby;
(b) no consent of any other Person (including, without limitation,
shareholders or creditors of the Borrowers or the Parent) and no action of, or
filing with any governmental or public body or authority is required to
authorize, or is otherwise required in connection with the execution, delivery
and performance of this Amendment Agreement, or consummation of the transactions
contemplated hereby;
(c) this Amendment Agreement has been duly executed and delivered by or
on behalf of the Borrowers and the Parent and constitutes a legal, valid and
binding obligation of each of the Borrowers and the Parent enforceable in
accordance with its terms, subject as to enforceability to bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and the exercise of judicial
discretion in accordance with general principles of equity;
(d) the execution, delivery and performance of this Amendment Agreement
will not violate any law, statute or regulation, or any order or decree of any
court or governmental instrumentality, or conflict with, or result in the breach
of, or constitute a default under any contractual obligation of any Borrower or
the Parent; and
(e) as of the date hereof (after giving effect to the consummation of
the transactions contemplated under this Amendment Agreement) there exists no
Default or Event of Default.
2
By its signature below, each of the Borrowers and the Parent agree that
it shall constitute an Event of Default if any representation or warranty made
above should be false or misleading in any material respect.
2. Each of the Loan Agreement and the Parent Guaranty is hereby
ratified and confirmed in all respects and, except as expressly amended or
waived hereby, all of the representations, warranties, terms, covenants and
conditions of the Loan Agreement and the Parent Guaranty shall remain unamended,
unwaived and in effect in accordance with their respective terms. The amendments
and waivers set forth herein shall be limited precisely as provided for herein
and shall not be deemed to be amendments or consents to, or waivers of
modifications of, any term or provision of the Loan Documents or any other
document or instrument referred to herein or therein or of any transaction or
further or future action on the part of any Borrower or the Parent requiring the
consent of the Agent or any Lender, except to the extent specifically provided
for herein.
3. Each Borrower and the Parent confirms in favor of the Agent and each
Lender that it agrees that it has no defense, offset, claim, counterclaim or
recoupment with respect to any of its obligations or liabilities under the Loan
Agreement, the Borrowers Guaranty, the Parent Guaranty, the Borrowers Security
Agreement, the Parent Security Agreement, the Borrowers Pledge Agreement, the
Parent Pledge Agreement, the Security Agreement-Patents and Trademarks or any
other Loan Document and that, except as herein provided, all terms of the Loan
Agreement, the Borrowers Guaranty, the Parent Guaranty, the Borrowers Security
Agreement, the Parent Security Agreement, the Borrowers Pledge Agreement, the
Parent Pledge Agreement, the Security Agreement-Patents and Trademarks and the
other Loan Documents shall continue in full force and effect.
4. This Amendment Agreement may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
5. Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart.
6. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE (WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF).
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"Borrowers"
XXX RADIO AND TELEVISION, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX KANSAS, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
4
XXXXXXXXX.XXX, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Parent"
XXX STORES CORPORATION
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Guarantors"
XXX RADIO AND TELEVISION, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
5
XXX KANSAS, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXXXXXX.XXX, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX STORES CORPORATION
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
AVA ACQUISITION CORP.
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
6
XXX INVESTMENT, LLC
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Lenders"
FLEET BANK, N.A.,
Individually
By:
---------------------------------
Name:
Title:
BANK ONE, N.A. (successor to Bank
One, Dayton, N.A.)
By:
---------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
NATIONAL CITY BANK (as successor by
merger to National City Bank,
Dayton)
By:
---------------------------------
Name:
Title:
7
THE PROVIDENT BANK
By:
---------------------------------
Name:
Title:
FIRSTAR BANK, N.A. (as successor to
Star Bank, N.A.)
By:
---------------------------------
Name:
Title:
"Agent"
FLEET BANK, N.A.,
As Agent
By:
---------------------------------
Name:
Title:
8
