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SIXTH MODIFICATION OF AMENDED AND RESTATED, EXHIBIT 4(a)(viii)
SECURED CREDIT AGREEMENT,
REVOLVING NOTE AND OTHER LOAN DOCUMENTS
THIS SIXTH MODIFICATION OF AMENDED AND RESTATED SECURED CREDIT
AGREEMENT, REVOLVING NOTE AND OTHER LOAN DOCUMENTS (this "Agreement") is made as
of the 19th of November, 1998, but shall not be deemed to be effective until, at
the earliest, March 23, 1999, by and among XXXX XXXXXX STORES, INC. ("PH
Stores"), an Indiana corporation, XXXX XXXXXX MERCHANDISING, INC., an Indiana
corporation ("PH Merchandising"), XXXX XXXXXX RETAILING, INC., an Indiana
corporation and LASALLE NATIONAL BANK, a national banking association (herein,
together with its successors and assigns, called the "Bank").
All capitalized terms and phrases, unless defined herein, shall have
the specific meanings as are set forth in that certain Secured Credit Agreement
dated as of October 28, 1993, by and between PH Stores and Bank, as amended and
restated by that certain Amended and Restated Secured Credit Agreement dated as
of January 20, 1994, as modified by those certain First through Fifth
Modifications of Secured Credit Agreement, Notes, Mortgage and Other Loan
Documents dated as of October 31, 1994, January 31, 1995, September 28, 1995,
May 8, 1996, and April 9, 1997 (as so amended, the "Credit Agreement").
WHEREAS, PH Stores has previously requested loans and advances from
Bank for the purpose of funding the working capital needs of PH Stores, and in
connection therewith, PH Stores and Bank entered into and executed the Credit
Agreement, pursuant to which the Bank, inter alia, agreed to make a term loan in
an amount of up to $2,400,000.00 and a revolving credit loan in an amount of up
to $30,000,000.00 to PH Stores; and
WHEREAS, PH Stores has previously executed and delivered to Bank (i) a
Secured Promissory Note (Revolver) originally dated October 28, 1993, as amended
(the "Revolving Note"), in the principal amount of $30,000,000.00, evidencing an
indebtedness owed by PH Stores to Bank in like amount (the "Revolving Loan") and
(ii) a Secured Promissory Note (Term) dated January 20, 1994 (the "Term Note")
in the principal amount of $2,400,000.00 evidencing an indebtedness owed by PH
Stores to Bank in like amount (the "Term Loan"); and
WHEREAS, repayment of the Term Note is secured by, among other items of
collateral, a certain Mortgage, Assignment of Leases and Rents and Security
Agreement dated as of January 20, 1994, made by PH Stores to Bank (the
"Mortgage"), recorded on February 1, 1994 in the Office of the Recorder, Xxxxxx
County, Indiana as Instrument Number 94-17807, encumbering the property legally
described therein (the "Premises"); and
WHEREAS, repayment of the Term Note is additionally secured by a
certain Assignment of Distribution Center Leases and Rents dated as of January
20, 1994 (the "Distribution Assignment"), made by PH Stores to Bank; and
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WHEREAS, repayment of the Revolving Note is secured by a certain
Security Agreement and Financing Statement dated as of October 28, 1993, as
amended (the "Security Agreement"), made by PH Stores to Bank; and
WHEREAS, repayment of the Revolving Note is additionally secured by a
certain Assignment of Leases dated as of October 28, 1994, as amended, made by
PH Stores to Bank (the "Assignment"), affecting the Premises; and
WHEREAS, repayment of the Revolving Note and the Term Note
(collectively, the "Notes") is additionally secured by UCC Financing Statements
made by PH Stores, as debtor, to Bank, as secured party (the "Financing
Statements"); and
WHEREAS, the Credit Agreement, the Notes, the Mortgage, the Security
Agreement, the Assignment, the Distribution Assignment and the Financing
Statements, together with all other documents and instruments now or hereafter
securing repayment of the Liabilities, or any portion thereof, evidenced by the
Notes are hereinafter collectively referred to as the "Loan Documents"; and
WHEREAS, Borrower (as that term is defined in the Credit Agreement as
modified by this Agreement) has requested that Bank make various modifications
to the Loan Documents, and Bank has so agreed, on the terms and conditions more
specifically set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, Borrower and Bank do hereby agree as follows:
1. The preambles to this Agreement are fully incorporated herein by
this reference thereto with the same force and effect as though restated herein.
2. Effective as of March 23, 1999 (the "Modification Date"), the Credit
Agreement is modified as set forth below:
a. The definition of "Borrowing Base" set forth in Section 1.1
of the Credit Agreement is hereby deleted and the following is
substituted in lieu thereof:
""BORROWING BASE" means, without duplication, on any given
date with respect to the Revolving Loan, an amount equal to
the sum of (i), (ii) and (iii) below:
(i) an amount equal to sixty percent (60.0%) of the Value
of all Eligible Inventory in the physical possession
of Borrower at Borrower's distribution center or at
one of Borrower's stores, as set forth in the
Borrowing Base Certificate then most recently
delivered by Borrower to Bank; and
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(ii) an amount equal to the sum of sixty percent (60.0%)
of the Value of all Eligible Inventory in transit
from Borrower's distribution center to Borrower's
stores, as set forth in the Borrowing Base
Certificate then most recently delivered by Borrower
to Bank; and
(iii) an amount equal to the sum of (a) sixty percent
(60.0%) of the aggregate amounts available to be
drawn under Trade Letters of Credit issued to and for
the benefit of Borrower and (b) the lesser of (i)
sixty percent (60.0%) of the Value of Eligible
Inventory in transit to Borrower from domestic
manufacturers that is not supported by Trade Letters
of Credit and (ii) $250,000.00.
Notwithstanding anything contained in this definition to the
contrary, during and only during each period from August 1 of any year
through November 30 of such year, the phrase "seventy percent (70.0%)"
shall be substituted in the place and stead of each reference to "sixty
percent (60.0%)" contained in clause (a) of this definition."
b. The definition of "Business Day" set forth in Section 1.1
of the Credit Agreement is hereby deleted and the following is
substituted in lieu thereof:
""BUSINESS DAY" means (a) any day that is not a Saturday, Sunday, or a
day on which Bank in Chicago, Illinois is required or permitted to be
closed, and (b) with respect to all notices, determinations, fundings
and payments in connection with the LIBOR Interest Rate or LIBOR Rate
Loans, any day that is a Business Day pursuant to clause (a) above and
that is also a day on which trading in Dollars is carried on by and
between banks in the London interbank market."
c. The definition of "Revolving Credit Maturity Date" set
forth in Section 1.1 of the Credit Agreement is deleted in its entirety
and the following definition is substituted therefor:
""REVOLVING CREDIT MATURITY DATE" means, with respect
to the Revolving Credit Commitment, June 30, 2000."
d. The definition of "Revolving Loan Rate" set forth in
Section 1.1 of the Credit Agreement is deleted in its entirety and the
following definition is substituted therefor:
""REVOLVING LOAN RATE" means either (i) the Revolving
Loan Prime Rate with respect to that portion of the Revolving
Loan that is not subject to the LIBOR Interest Rate or (ii)
the LIBOR Interest Rate, with respect to the portion of the
Revolving Loan that is not subject to the Revolving Loan Prime
Rate."
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e. The following definitions are hereby inserted into Section
1.1 of the Credit Agreement in alphabetical order:
""BORROWER" - means individually and collectively
Xxxx Xxxxxx Stores, Inc. an Indiana corporation, Xxxx Xxxxxx
Merchandising, Inc. an Indiana corporation, and Xxxx Xxxxxx
Retailing, Inc. an Indiana corporation. Unless otherwise
provided for herein to the contrary, the use of the term
Borrower shall be deemed to be a joint and several reference
to each and all of the entities comprising Borrower. For
purposes of Section 9.1(a), the references therein to Borrower
shall be deemed to mean PH Stores only; for purposes of
Section 9.7, 9.8 and Schedule A, the references therein to
Borrower shall be deemed to be only a collective and not a
several reference to each of the entities comprising Borrower;
and for purposes of Section 13.13, the references to Borrower
shall be deemed to be only a several, and not a collective,
reference to each of the entities comprising Borrower."
"EUROCURRENCY RESERVE PERCENTAGE" means, with respect
to each LIBOR Rate Loan for any day for any Interest Period,
the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such
day (whether or not applicable to Bank) under regulations
issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities").
"INTERBANK RATE" means, with respect to any Interest
Period, the rate of interest per annum (rounded upward to the
next 1/16th of 1%) identified by Bank as the rate of interest
at which dollar deposits in the approximate amount of the Loan
to be continued as, or converted into, a LIBOR Rate Loan and
having a maturity comparable to such Interest Period would be
offered by Bank's applicable lending office to major banks in
the London eurodollar market at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of
such Interest Period.
"INTEREST PERIOD" means, with respect to any LIBOR
Rate Loan, the period beginning on (and including) the date on
which such Loan is converted to or continued as a LIBOR Rate
Loan, and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three, four or six months
thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month), in either case
as Borrower may have stated in the applicable LIBOR Request;
provided, however, that (i) no Interest Period for any Loan
shall in any event extend beyond the maturity date applicable
to such Loan under this Agreement, (ii) each Interest Period
with respect to any Loan which would otherwise end on a day
which is not a Business Day shall end on the next
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succeeding Business Day unless such next succeeding Business
Day is the first Business Day of a calendar month, in which
case it shall end on the next preceding Business Day and (iii)
any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Business Day of the calendar month at the end of
such Interest Period."
"LIBOR RATE" means, with respect to any Interest
Period, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined pursuant to the following
formula:
LIBOR Rate = Interbank Rate
(Reserve Adjusted) -----------------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR INTEREST RATE" means the LIBOR Rate plus two
percent (2.0%).
"LIBOR RATE LOAN" means any portion of any Revolving
Loan that bears interest based on the LIBOR Interest Rate
during any period.
"LIBOR REQUEST" means, with respect to any portion of
any Revolving Loan, a request in writing from Borrower to
Bank, requesting that the Loan specified in such LIBOR Request
bear interest at the applicable LIBOR Interest Rate for a
certain Interest Period commencing on a date specified in such
LIBOR Request (which specified date must be at least two full
Business Days after the date Bank receives and acknowledges
its receipt of such LIBOR Request).
"NOTICE OF CONVERSION/CONTINUATION" has the meaning
specified in Subsection 5.1.3.2.
"PRIME RATE REVOLVING LOAN" means any portion of the
Revolving Loan that bears interest based on the Revolving Loan
Prime Rate during any period.
"REQUIREMENT OF LAW" means any federal, state or
local law, rule or regulations, permit or other binding
determination.
"REVOLVING LOAN PRIME RATE" means (i) a per annum
rate of interest equal to the Prime Rate from time to time in
effect plus one-quarter of one percent (.25%) per annum until
and including March 22, 1999, and (ii) a per annum rate of
interest equal to the Prime Rate after March 23, 1999."
"TRADE LETTERS OF CREDIT" means commercial or
documentary letters of credit.
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"YEAR 2000 PROBLEM" means the risk that computer
applications used by Borrower and any Subsidiary may be unable
to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date on or after
December 31, 1999."
f. Section 5.1.1 of the Credit Agreement is deleted in its
entirety and the following is substituted in its place and stead:
"5.1.1 REVOLVING LOAN. Prior to November 19, 1998,
the Revolving Loans shall bear interest on the unpaid
principal balance thereof at the Revolving Loan Prime Rate,
subject to the terms of Section 5.1.5. From and after November
19, 1998, the Revolving Loan shall bear interest on the unpaid
principal balance thereof at the Revolving Loan Prime Rate or,
if Borrower has delivered a LIBOR Request to Bank, at the
LIBOR Interest Rate, each subject to the terms of Section
5.1.5. Interest charges shall be computed on the basis of a
year of 360 days and actual days elapsed and shall be payable
monthly in arrears on the first day of each calendar month
hereafter with respect to Loans which bear interest at the
Revolving Loan Prime Rate, on the last day of the Interest
Period (and for each six month Interest Period, at the end of
the first three months of such Interest Period and on the last
day of such Interest Period) with respect to each LIBOR Rate
Loan and as otherwise provided herein."
g. Section 5.1.5 is hereby added to the Credit Agreement as
follows:
"5.1.5 LIBOR; CONVERSION AND CONTINUATION ELECTIONS.
(a) The Borrower shall deliver a notice of
conversion/continuation ("Notice of Conversion/Continuation")
in the form of Exhibit 5.1.5 hereto to be received by the Bank
not later than 11:00 a.m. (Chicago time) at least two Business
Days in advance of the conversion/continuation date, if any
portion of the Revolving Loan is to be converted into or
continued as a LIBOR Rate Loan and specifying:
(i) the proposed conversion/continuation date;
(ii) the aggregate amount of the Revolving Loan to be
converted or renewed, the minimum amount of which shall not be
less than $500,000 or $100,000 minimal increments in excess
thereof; and
(iii) the duration of the requested Interest Period,
provided, however, the Borrower may not select an Interest
Period with respect to any portion of the Revolving Loan which
extends beyond an installment payment date for the Revolving
Loan unless, after giving effect to such election, the portion
of the Revolving Loan not subject to Interest Periods ending
after such installment payment date is equal to or greater
than the
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principal due on such installment payment date.
(b) If upon the expiration of any Interest Period
applicable to LIBOR Rate Loans, the Borrower has failed to
select timely a new Interest Period to be applicable to LIBOR
Rate Loans or if any Event of Default then exists or any event
(a "Default") then exists that with the giving of notice or
the passage of time would constitute an Event of Default, the
Borrower shall be deemed to have elected to convert such LIBOR
Rate Loans into Revolving Loans which bear interest based upon
the Revolving Loan Prime Rate effective as of the expiration
date of such Interest Period.
(c) During the existence of a Default or Event of
Default, the Borrower may not elect to have any portion of the
Revolving Loan converted into or continued as a LIBOR Rate
Loan.
(d) After giving effect to any conversion into or
continuation of LIBOR Rate Loans, there may not be more than
two different Interest Periods in effect."
h. Section 5.2 of the Credit Agreement is deleted in its
entirety and the following is substituted in its place and stead:
"5.2 INTEREST PAYMENT DATES. Except as provided in
Section 5.5 and in Section 5.1.1 with respect to LIBOR Rate
Loans, accrued and unpaid interest on each Loan shall be
payable on the first Business Day of each month and at
maturity, commencing, with respect to the Revolving Loan, on
the first Business Day of November, 1993. After maturity,
accrued and unpaid interest on all Loans shall be payable on
demand."
i. The following is hereby added as Section 6.2.3 to the
Credit Agreement:
"6.2.3 ADDITIONAL PROVISIONS RELATING TO REPAYMENTS.
With respect to any LIBOR Rate Loans repaid or prepaid by the
Borrower prior to the expiration of the Interest Period
applicable thereto, the Borrower agrees to pay to the Bank the
amounts described in Section 6.2.3(iii).
(i) Illegality.
(A) If Bank determines that the introduction
of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it
unlawful, or that any central bank or other
governmental authority has asserted that it is
unlawful, for Bank or its applicable lending office
to
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make LIBOR Rate Loans, then, on notice thereof by the
Bank to the Borrower, any obligation of the Bank to
make LIBOR Rate Loans shall be suspended until the
Bank notifies the Borrower that the circumstances
giving rise to such determination no longer exist.
(B) If Bank determines that it is unlawful
to maintain any LIBOR Rate Loan, the Borrower shall,
upon its receipt of notice of such fact and demand
from such Bank, prepay in full such LIBOR Rate Loans
of the Bank then outstanding, together with interest
accrued thereon and amounts required under Section
6.2.3(iii), either on the last day of the Interest
Period thereof, if the Bank may lawfully continue to
maintain such LIBOR Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to
maintain such LIBOR Rate Loan. If the Borrower is
required to so prepay any LIBOR Rate Loan, then
concurrently with such prepayment, the Borrower shall
convert such Loan to a Prime Rate Loan bearing
interest based on the Prime Rate.
(ii) Increased Costs and Reduction of Return. (A) If
Bank determines that, due to either (I) the introduction of or
any change in the interpretation of any law or regulation or
(II) the compliance by the Bank with any guideline or request
from any central bank or other governmental authority (whether
or not having the force of law), there shall be any increase
in the cost to Bank of agreeing to make or making, funding or
maintaining any LIBOR Rate Loans, then the Borrower shall be
liable for, and shall from time to time, upon demand, pay to
the Bank additional amounts as are sufficient to compensate
the Bank for such increased costs.
(iii) Funding Losses. The Borrower shall reimburse
the Bank and hold the Bank harmless from any loss or expense
which the Bank may sustain or incur as a consequence of:
(A) the failure of the Borrower to make on a
timely basis any payment of principal of any LIBOR
Rate Loan;
(B) the failure of the Borrower to continue
or convert a Loan after the Borrower has given (or is
deemed to have given) a Notice of
Conversion/Continuation;
(C) the prepayment or other payment
(including after acceleration thereof) of a LIBOR
Rate Loan on a day that is not the last day of the
relevant Interest Period;
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including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its LIBOR Rate Loans
or from fees payable to terminate the deposits from which such funds
were obtained.
(iv) Inability to Determine Rates. If the Bank determines that
for any reason adequate and reasonable means do not exist for
determining the LIBOR Rate for any requested Interest Period with
respect to a proposed LIBOR Rate Loan, or that the LIBOR Rate for any
requested Interest Period with respect to a proposed LIBOR Rate Loan
does not adequately and fairly reflect the cost to the Bank of funding
such Loan, the Bank will promptly so notify the Borrower. Thereafter,
the obligation of the Bank to make or maintain LIBOR Rate Loans
hereunder shall be suspended until the Bank revokes such notice in
writing. Upon receipt of such notice, the Borrower may revoke any
Notice of Conversion/Continuation then submitted by it. If the Borrower
does not revoke such Notice, the Bank shall convert or continue the
Loans, as proposed by the Borrower, in the amount specified in the
applicable notice submitted by the Borrower, but such Loans shall be
converted or continued as Loans which bear interest at the Term Loan
Prime Interest Rate instead of LIBOR Rate Loans.
(v) Certificates of Bank. If Bank claims reimbursement or
compensation under this Section 6.2.3, it shall deliver to the Borrower
a certificate setting forth in reasonable detail the amount payable to
the Bank hereunder and such certificate shall be conclusive and binding
on the Borrower in the absence of manifest error.
(vi) Survival. The agreements and obligations of the Borrower
in this Section 6.2.3(vi) shall survive the payment of all other
Liabilities."
j. Section 6.3 of the Credit Agreement is deleted in its
entirety and the following is substituted in its place and stead:
"6.3 OPTIONAL PREPAYMENTS. Borrower from time to time
may prepay that portion of the Revolving Loan Balance
consisting of Revolving Loans bearing interest at the
Revolving Loan Prime Rate in whole or in part, provided,
however, that partial payments shall be in increments of
$100,000 (or $25,000 integral multiples)."
k. The following is hereby added to the Credit Agreement as
Section 8.23:
"8.23 YEAR 2000 COMPLIANCE. Borrower and each
Subsidiary have reviewed the areas within their business and
operations which could be adversely affected by, and have
developed or are developing a program to address on a timely
basis, the Year 2000 Problem, and have made related
appropriate inquiry of material suppliers and vendors. Based
on such review and program, Borrower believes that the Year
2000 Problem will not have a material adverse effect on the
business or operations of Borrower."
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l. The following is hereby added to the Credit Agreement
as Section 9.13:
"9.13 PURCHASE AND REDEMPTION OF BORROWER'S
SECURITIES; DIVIDEND AND INTEREST RESTRICTIONS. Other than as
specifically permitted hereinbelow, not purchase or redeem any
shares of Borrower's or any Subsidiary's capital stock or any
options or warrants with respect thereto, declare or pay any
dividends thereon (other than dividends paid in the form of
shares of capital stock other than stock which constitutes
Indebtedness), make any distribution or payment to
stockholders or holders of options or warrants in respect of
Borrower's capital stock or set aside any funds for any such
purpose. Notwithstanding anything implied or expressed to the
contrary in the foregoing provisions of this Section 9.13, PH
Stores may buy back on the open market up to a total of
1,500,000 shares of its publicly traded common stock, provided
that the aggregate purchase price, including all costs
associated with such buy back, does not exceed $15,000,000 and
provided further (i) the purchase of such shares is completed
on or before June 30, 2000 and (ii) no Default or Event of
Default then exists or would exist after giving effect to any
purchase permitted herein."
m. The following is hereby added to the Credit Agreement
as Section 9.26:
"YEAR 2000". From time to time, at the request of
Bank, Borrower and each Subsidiary shall provide to Bank such
updated information or documentation as is requested regarding
the status of their efforts to address the Year 2000 Problem."
n. The following is hereby added to the Credit Agreement
as Section 13.13:
"RIGHT OF CONTRIBUTION. Each entity comprising
Borrower hereby agrees that to the extent that any individual
Borrower or entity shall have paid an amount hereunder which
would, but for this provision, render such Borrower insolvent
for purposes of state or federal fraudulent conveyance laws,
such Borrower shall be entitled to seek and receive
contribution from and against any other Borrower hereunder to
the extent such contribution would not render such other
Borrower insolvent. The provisions of this Section 13.13 shall
in no respect limit the obligations and liabilities of any
Borrower to the Bank and each Borrower shall remain liable to
the Bank for the full amount of such Borrower's Liabilities
hereunder."
3. All references in the Loan Documents to the Credit Agreement hereby
are understood to be to the Credit Agreement as modified hereby.
4. CONDITIONS TO EFFECTIVENESS. Provided that no unwaived Default or
Event of Default shall then exist other than those that would exist but for the
execution of this
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Amendment, this Amendment shall be deemed to be effective as of November 19,
1998 (the "Effective Date"), provided all of the following conditions are
satisfied in a manner, form and substance acceptable to Bank:
(a) EXECUTION OF RELATED DOCUMENTS. This Amendment (including
the attached Joinder), duly authorized and fully executed, and each in
form and substance satisfactory to Bank shall have been delivered to
Bank;
(b) DELIVERY OF OTHER DOCUMENTS.
(i) True, complete and accurate copies, duly
certified by an officer of each entity comprising Borrower, of
all documents evidencing any necessary corporate action,
resolutions, consents and governmental approvals, if any,
required for the execution, delivery and performance of this
Amendment, and the Joinder and any other document, instrument
or agreement executed or delivered in connection therewith by
the Borrower shall have been delivered to Bank;
(ii) Bank shall have received satisfactory, current
state and local UCC tax, lien and judgment searches in all
applicable locations for each entity comprising Borrower;
(iii) Executed original UCC Financing Statements by
each entity comprising Borrower, in form satisfactory to Bank
shall have been delivered to Bank; and
(iv) Such other documents, instruments or agreements
as the Bank may reasonably request shall have been delivered
to Bank.
5. In the event of any conflict among the terms of the Credit Agreement
and the other Loan Documents as modified by this Agreement, the terms of the
Credit Agreement as modified by this Agreement shall control. All terms and
provisions of the Documents corresponding to terms and provisions of the Credit
Agreement prior to the date of this Agreement shall be deemed modified in
accordance with the terms of this Agreement.
6. Borrower hereby warrants and represents that (i) Borrower has no
defense, offset or counterclaim with respect to the payment of any sum owed to
Bank, or with respect to any covenant in the Loan Documents; (ii) Bank, on and
as of the date hereof, has fully performed all obligations to Borrower which it
may have had or has on and as of the date hereof; and (iii) other than as
expressly set forth herein, by entering into this Agreement, Bank does not waive
any condition or obligation in the Loan Documents.
7. Borrower hereby agrees to execute and deliver promptly to Bank, at
Bank's request, such other documents as Bank, in its reasonable discretion,
shall deem necessary or appropriate to evidence the transaction contemplated
herein.
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8. Borrower agrees to pay all fees and expenses associated with the
consummation of the transactions contemplated in this Agreement, including,
without limitation, reasonable fees and expenses of Bank's counsel and related
expenses.
9. Time is of the essence of this Agreement.
10. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which, taken together, shall
constitute one and the same Agreement.
11. Except as otherwise set forth herein to the contrary, the Loan
Documents remain unmodified and continue in full force and effect. Borrower
hereby reaffirms, confirms and ratifies each and every covenant, condition,
obligation and provision set forth in the Loan Documents, each as modified
hereby.
[END OF PAGE]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed and delivered this Agreement as of the day and year first
above written.
BORROWER:
XXXX XXXXXX STORES, INC., an Indiana corporation
By: /s/ Xxxxxx XxXxxx
---------------------------------------------------
Title: SVP
------------------------------------------------
Its:
--------------------------------------------------
XXXX XXXXXX MERCHANDISING, INC., an Indiana corporation
By: /s/ Xxxxxx XxXxxx
---------------------------------------------------
Title: SVP
------------------------------------------------
Its:
---------------------------------------------------
XXXX XXXXXX RETAILING INC., an Indiana corporation
By: /s/ Xxxxxx XxXxxx
---------------------------------------------------
Title: SVP
------------------------------------------------
Its:
--------------------------------------------------
BANK:
LASALLE NATIONAL BANK, a national banking association
By: /s/ Xxx Xxxxxxxxx
---------------------------------------------------
Title:
------------------------------------------------
Its:
--------------------------------------------------
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EXHIBIT 5.1.4
-------------
NOTICE OF CONTINUATION/CONVERSION
[Date]
LaSalle National Bank
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxx
Dear Xxx:
The undersigned, XXXX XXXXXX STORES, INC., an Indiana corporation, XXXX
XXXXXX MERCHANDISING, INC., an Indiana corporation, XXXX XXXXXX RETAILING, INC.,
an Indiana corporation (individually and collectively the "Borrower"), refers to
the Amended and Restated Secured Credit Agreement originally dated as of January
20, 1994 as modified by various Amendments thereto (as it may hereafter be
amended, modified, extended or restated from time to time, the "Credit
Agreement"), among the Borrower and LaSalle National Bank ("Bank"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 5.1.4 of the Credit Agreement that it requests to
[convert] [continue] a Revolving Loan under the Credit Agreement, and in that
connection sets forth below the terms on which such Revolving Loan is requested
to be [converted] [continued]:
(A) Type of Loan into which
Loan is to be [converted(1/)]
[continued(2/)]:
---------------------
(B) Principal Amount of Revolving Loan
outstanding as of the date hereof
to be [converted][continued]:
----------------------
----------
(1/) LIBOR Rate Loan or Prime Rate Term Loan. If converted into a LIBOR Rate
Loan, state length of the Interest Period and the last day thereof,
which shall end not later than the applicable maturity date of the Term
Loan.
(2/) LIBOR Rate Loan.
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(C) Date the Revolving Loan is to be [converted(3/)]
[continued(4/)]:
---------------------
(D) Interest Period and the last day
thereof (if for LIBOR Rate loan):
---------------------
XXXX XXXXXX STORES, INC., an Indiana
corporation
By:
-------------------------------------------------
Name:
------------------------------------------------
Its:
-------------------------------------------------
XXXX XXXXXX MERCHANDISING, INC., an Indiana
corporation
By:
-------------------------------------------------
Name:
-----------------------------------------------
Its:
------------------------------------------------
XXXX XXXXXX RETAILING, INC., an Indiana corporation
By:
-------------------------------------------------
Name:
------------------------------------------------
Its:
-------------------------------------------------
----------
(3/) Which must be the last day of an Interest Period with respect to the
conversion of a LIBOR Rate Loan to a Base Rate Loan.
(4/) Which must be upon the expiration of the then current Interest Period
with respect to the LIBOR Rate Loan.
16
JOINDER AGREEMENT
-----------------
This JOINDER AGREEMENT (the "Joinder") is made as of the 19th day of
November, 1998 by the undersigned (collectively "Subsidiaries") subsidiaries of
Xxxx Xxxxxx Stores, Inc., an Indiana corporation ("PH Stores"), and LaSalle
National Bank, a national banking association ("Bank"). All capitalized terms
used and not otherwise defined herein shall have the meaning ascribed thereto in
the Credit Agreement (as hereinafter defined).
WHEREAS, Bank and PH Stores are parties to that certain Amended and
Restated Secured Credit Agreement dated as of January 20, 1994 and as modified
by five Amendments (as the same may be amended, supplemented, restated or
otherwise modified from time to time the "Credit Agreement");
WHEREAS, in order to induce Bank to make the Loans as provided for in
the Credit Agreement and to secure the Liabilities thereunder, PH Stores has
granted a continuing Lien to Bank on certain collateral pursuant to that certain
Security Agreement and Financing Statement originally dated as of October 28,
1993 (as amended, the "Security Agreement") by and between PH Stores and Bank;
WHEREAS, Subsidiaries have been formed and are qualified to borrow
Loans under the Credit Agreement and, as a result of the foregoing and pursuant
to the definition of Borrower in the Credit Agreement, Subsidiaries shall be
deemed to be a Borrower and a co-obligor under the Credit Agreement and the
other Related Documents;
WHEREAS, Subsidiaries desires to execute this Joinder and to become a
Borrower under the Credit Agreement and, in connection therewith, to become a
party to the Security Agreement granting to Bank a Lien upon certain Collateral
(as defined in the Security Agreement) owned or consigned by or to, or leased
from or to, Subsidiaries;
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties thereto agree as follows:
1. Joinder in Credit Agreement. Each Subsidiary hereby assumes, and
agrees to perform, for the benefit of Bank, all of the Liabilities of a Borrower
under the Credit Agreement and the other Related Documents, as direct and
primary obligations of Subsidiaries (including any such Liabilities that may
have accrued prior to the date hereof), including, without limitation, its
Liabilities with respect to the Loans, and further agrees that it shall comply
with and be fully bound by the terms of the Credit Agreement and the other
Related Documents as if it had been a signatory thereto as of the date thereof;
provided that the representations and warranties made by each Subsidiary
thereunder shall be deemed true and correct as of the date of this Joinder.
As a Borrower under the Credit Agreement, each Subsidiary shall execute all
17
Notes required by Bank for any Loans made, assumed or to be made, from time to
time, by Bank to such Subsidiary, and each Subsidiary agrees to pay all
Liabilities owing by it to Bank, including all payments of principal, interest
and other charges due from time to time with respect to the Loans made, assumed
or available to such Subsidiary.
2. Joinder in Security Agreement. Each Subsidiary hereby grants to
Bank, a security interest in all Collateral in which it has an interest, whether
now or hereafter arising, in accordance with the terms of the Security
Agreement. Each Subsidiary hereby assumes and agrees to perform for the benefit
of Bank, all of its obligations as a Grantor under the Security Agreement, as
direct and primary obligations of such Subsidiary (including any such
obligations that may have accrued prior to the date hereof) and further agrees
that it shall comply with and be fully bound by the terms of the Security
Agreement as if it had been a signatory thereto as of the date thereof; provided
that the representations and warranties made by such Subsidiary thereunder shall
be deemed true and correct as of the date of this Joinder.
3. Amendment to Security Agreement. Effective as of the date hereof,
the Security Agreement is hereby amended to add the information set forth on
Exhibit A attached hereto as Exhibits C and D hereto.
4. Unconditional Joinder. Each Subsidiary acknowledges that such
Subsidiary's obligations as a party to this Joinder are unconditional and are
not subject to the execution of one or more Joinders by other subsidiaries of PH
Stores or other parties.
5. Reliance. Bank shall be entitled to rely on this Joinder as evidence
that each Subsidiary has joined (i) as a Borrower under the Credit Agreement and
the other Related Documents and is fully obligated thereunder as a Borrower and
(ii) as a Grantor under the Security Agreement and is fully obligated thereunder
as a Grantor.
6. Incorporation by Reference. All terms and conditions of the Credit
Agreement, the other Related Documents and the Security Agreement, including,
but not limited to, all representations, warranties, covenants, indemnities,
guaranties and other obligations. Borrower thereunder is hereby incorporated by
reference in this Joinder as if set forth in full.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Joinder Agreement as of the date set forth above.
SUBSIDIARIES:
XXXX XXXXXX MERCHANDISING, INC., an Indiana corporation
By: /s/ Xxxxxx XxXxxx
---------------------------------------------------
Title:
------------------------------------------------
Its: SVP
--------------------------------------------------
XXXX XXXXXX RETAILING, INC., an Indiana corporation
By: /s/ Xxxxxx XxXxxx
---------------------------------------------------
Title:
-------------------------------------------------
Its: SVP
--------------------------------------------------
BANK:
LASALLE NATIONAL BANK, a national banking association
By: /s/ Xxx Xxxxxxxxx
---------------------------------------------------
Title: VP
------------------------------------------------
Its:
--------------------------------------------------
19
EXHIBIT A to
JOINDER AGREEMENT
EXHIBITS C AND D (combined)
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING XXXX XXXXXX MERCHANDISING, INC.
I. Chief Executive Office and principal place of business of Xxxx Xxxxxx
Merchandising, Inc., 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
II. Corporate Offices of Xxxx Xxxxxx Merchandising, Inc., 0000 Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
III. Warehouses: 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
IV. Other Premises at which Collateral is Stored or Located: None
V. Locations of Records Concerning Collateral: 0000 Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING XXXX XXXXXX RETAILING, INC.
I. Chief Executive Office and principal place of business of Xxxx Xxxxxx
Retailing, Inc., 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000
II. Corporate Offices of Xxxx Xxxxxx Retailing, Inc., 0000 Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
III. Warehouses: None
IV. Other Premises at which Collateral is Stored or Located: See separate
Schedule attached hereto.
V. Locations of Records Concerning Collateral: 0000 Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000
