Exhibit 4.5
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SECOND AMENDMENT
TO REVOLVING CREDIT AGREEMENT
Second Amendment to Revolving Credit Agreement dated as of July 27,
1995 (the "SECOND AMENDMENT"), by and among SPECIALTY RETAILERS, INC., a
Delaware corporation ("SRI"), PALAIS ROYAL, INC., a Texas corporation (the
"BORROWER"), THE FIRST NATIONAL BANK OF BOSTON and the other lending
institutions listed on SCHEDULE 1 to the Credit Agreement (as hereinafter
defined) (the "BANKS") and THE FIRST NATIONAL BANK OF BOSTON, as agent for the
Banks (in such capacity, the "AGENT"), amending certain provisions of the
Revolving Credit Agreement dated as of March 31, 1995 (as amended and in effect
from time to time, the "CREDIT AGREEMENT") by and among SRI, the Borrower, the
Banks and the Agent. Terms not otherwise defined herein which are defined in the
Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, SRI, the Borrower, the Banks and the Agent have agreed to
modify certain terms and conditions of the Credit Agreement as specifically set
forth in this Second Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ss.1. AMENDMENT TO ss.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended as follows:
(a) The definition of "Subordinated Debt" is hereby amended by
inserting immediately after the words "The Senior Subordinated Notes" in the
first sentence of such definition a comma and the words "the SRI Subordinated
Notes"; and
(b) By inserting the following definitions in the appropriate
alphabetical order:
"SRI SUBORDINATED NOTES. The 11% Series C Senior
Subordinated Notes Due 2003 and the 11% Series D Senior
Subordinated Notes Due 2003, issued pursuant to the SRI
Subordinated Notes Indenture in aggregate principal amount not
to exceed $18,250,000."
"SRI SUBORDINATED NOTES INDENTURE. The Indenture,
dated as of July 27, 1995, entered into between SRI and The
First National Bank of Boston as Trustee in connection with
the issuance of the SRI Subordinated Notes, in the form of the
counterpart previously delivered to the Agent, and as amended,
supplemented or modified from time to time as permitted by
ss.8.9."
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ss.2. AMENDMENT TO ss.7 OF THE CREDIT AGREEMENT. Section 7 of the
Credit Agreement is hereby amended by inserting immediately after ss.7.13 the
following:
ss.7.14. USE OF PROCEEDS OF SRI SUBORDINATED NOTES. SRI will
use the proceeds of the SRI Subordinated Notes solely for general
corporate purposes, including permitted acquisitions, of SRI and its
Subsidiaries.
ss.3. AMENDMENT TO ss.8 OF THE CREDIT AGREEMENT. Section 8 of the
Credit Agreement is hereby amended as follows:
(a) Section 8.4 of the Credit Agreement is hereby amended by deleting
the text of ss.8.4 in its entirety and substituting in place thereof the words
"Neither SRI nor the Borrower will make any Distributions to any Person other
than ARI or any of its Subsidiaries."; and
(b) Section 8.5.2 of the Credit Agreement is hereby amended by (i)
deleting the word "and" which appears immediately before the letter "(d)" in the
first sentence (tenth line) of ss.8.5.2 and (ii) inserting immediately after the
words "in any fiscal year" at the end of ss.8.5.2 the words "and (e) the
disposition of assets to ARI or any of its Subsidiaries".
ss.4. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this Second Amendment executed by SRI,
the Borrower, the Banks and the Agent;
(b) a copy of the SRI Subordinated Notes Indenture and the SRI
Subordinated Notes, which SRI Subordinated Notes Indenture and SRI
Subordinated Notes shall be in form and substance satisfactory to the
Agent;
(c) evidence satisfactory to the Agent of the effectiveness
of the SRI Subordinated Notes Indenture;
(d) corporate resolutions of each of SRI and the Borrower
authorizing the transactions contemplated by this Second Amendment and
the SRI Subordinated Notes Indenture;
(e) a legal opinion of Xxxxxxxx & Xxxxx, counsel to SRI and
the Borrower, as to authorization, execution and delivery of this
Second Amendment, the SRI Subordinated Notes and SRI Subordinated Notes
Indenture and an opinion that the Indebtedness incurred pursuant to the
SRI Subordinated Notes Indenture constitutes Subordinated Debt; and
(f) an amended and restated side letter between the Banks, the
Agent and the Borrower as to repayments under the Credit Agreement.
ss.4. REPRESENTATIONS AND WARRANTIES. Each of SRI and the Borrower
hereby repeats, on and as of the date hereof, each of the representations and
warranties made by it in ss.6 of the
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Credit Agreement, PROVIDED, that all references therein to the Credit Agreement
shall refer to such Credit Agreement as amended hereby.
ss.5. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto, are
hereby ratified and confirmed in all respects and shall continue in full force
and effect. The Credit Agreement and this Second Amendment shall be read and
construed as a single agreement. All references in the Credit Agreement or any
related agreement or instrument to the Credit Agreement shall hereafter refer to
the Credit Agreement as amended hereby.
ss.6. NO WAIVER. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of SRI, the
Borrower or any rights of the Agent or the Banks consequent thereon.
ss.7. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
ss.8. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a document under seal as of the date first above written.
SPECIALTY RETAILERS, INC.
By: XXXXX X. XXXX
Title: Senior Vice President,
Secretary and Treasurer
PALAIS ROYAL, INC.
By: XXXXXX X. XXXXX
Title: VP Controller
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: XXXXX XXXXXXX
Title: Vice President
UNION BANK
By: XXXXX XXXXXXXXXXXXX
Title: Vice President
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RATIFICATION OF GUARANTY
The undersigned guarantor (the "Guarantor") hereby acknowledges and
consents to the foregoing Second Amendment as of July 27, 1995 and agrees that
the Guaranty dated as of March 31, 1995, in favor of the Agent for the benefit
of the Agent and the Banks, and all other Loan Documents to which the Guarantor
is a party remain in full force and effect, and the Guarantor confirms and
ratifies all of its obligations thereunder.
SPECIALTY RETAILERS, INC.
By: XXXXX X. XXXX
Title: Senior Vice President,
Secretary and Treasurer
