Exhibit 4.(a)
FOURTH AMENDMENT
TO
AMENDED AND RESTATED LOAN AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"FOURTH AMENDMENT") is made as of the 18 of August, 2006 by and among:
XXX RADIO AND TELEVISION, INC., an Ohio corporation ("XXX RADIO"), as
lead borrower (in such capacity, "LEAD BORROWER"), for itself and the other
Borrowers being XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation ("XXXXX"),
XXX ALABAMA, INC., an Ohio corporation ("XXX ALABAMA"), XXX KANSAS, INC., a
Kansas corporation ("XXX KANSAS"), XXXXXXXXX.XXX, INC., an Ohio corporation
("XXX INTERNET"), and STEREO TOWN, INC., a Georgia corporation ("STEREO TOWN");
and
XXX STORES CORPORATION, a Delaware corporation (the "PARENT"); and
the LENDERS party hereto; and
BANK OF AMERICA, N.A., f/k/a Fleet Retail Group, Inc., as agent for the
Lenders, a Delaware corporation, having a place of business at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000; and
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
RECITALS
A. The Lead Borrower, the other Borrowers, the Agent, the Lenders, and
the Syndication Agent have entered into an Amended and Restated Loan Agreement
dated as of September 14, 2004 (as amended and in effect, the "LOAN AGREEMENT").
All capitalized terms used herein and not otherwise defined shall have the same
meaning herein as in the Loan Agreement.
B. The Borrowers, the Agent, the Parent, the Lenders, and the
Syndication Agent have agreed to amend certain provisions of the Loan Agreement
all as set forth herein.
NOW THEREFORE, it is hereby agreed as follows:
1. AMENDMENTS TO LOAN AGREEMENT.
(A) The definition of "FMV" is hereby deleted in its entirety, and the
following is inserted in its place:
"FMV" shall mean, as to any Eligible Real Estate, the fair
market value of such Eligible Real Estate determined in accordance
with an independent appraisal acceptable to the Agent, which
appraisal shall assume, among other things, a marketing time of
not greater than twelve (12) months.
1
(B) The definition of "LETTER OF CREDIT SUBLIMIT" is hereby deleted in
its entirety, and the following is inserted in its place:
"LETTER OF CREDIT SUBLIMIT" shall mean $80,000,000.00 as such
amount may be adjusted in accordance with the terms of this
Agreement.
(C) The definition of "REAL ESTATE ADVANCE RATE" is hereby deleted in
its entirety, and the following is inserted in its place:
"REAL ESTATE ADVANCE RATE" shall mean sixty percent (60%).
2. CONDITIONS TO EFFECTIVENESS. This Fourth Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Agent:
(A) This Fourth Amendment shall have been duly executed and delivered
by the Borrowers, the Parent, the Agent and the Required Lenders.
The Agent shall have received a fully executed copy hereof and of
each other document required hereunder.
(B) All action on the part of the Borrowers and the Parent necessary
for the valid execution, delivery and performance by the Borrowers
and the Parent of this Fourth Amendment shall have been duly and
effectively taken.
(C) The Borrowers and the Parent shall have provided such additional
instruments, documents, and opinions of counsel to the Agent as
the Agent and its counsel may have reasonably requested.
(D) The Agent shall have received, for the pro rata benefit of the
Lenders, an amendment fee in the amount of $37,500.
3. MISCELLANEOUS.
(A) Except as provided herein, all terms and conditions of the Loan
Agreement and the other Loan Documents remain in full force and
effect. The Borrowers and the Parent each hereby ratifies,
confirms, and reaffirms all of the representations, warranties and
covenants therein contained. Without limiting the generality of
the foregoing, the Borrowers and the Parent each hereby
acknowledges, confirms and agrees that all Collateral shall
continue to secure the Obligations as modified and amended
pursuant to this Fourth Amendment, and any future modifications,
amendments, substitutions or renewals thereof.
(B) This Fourth Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so
executed and delivered, shall be an original, and all of which
together shall constitute one instrument. Delivery of an executed
counterpart of a signature page hereto by telecopy shall be
effective as delivery of a manually executed counterpart hereof.
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(C) This Fourth Amendment expresses the entire understanding of the
parties with respect to the matters set forth herein and
supersedes all prior discussions or negotiations hereon. Any
determination that any provision of this Fourth Amendment or any
application hereof is invalid, illegal or unenforceable in any
respect and in any instance shall not effect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any other
provisions of this Fourth Amendment.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed and their seals to be hereto affixed as the date first
above written.
XXX RADIO AND TELEVISION, INC., as Lead Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXXXX & XXXXX APPLIANCES, INC., as a Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX ALABAMA, INC., as a Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX KANSAS, INC., as a Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXXXXXXXX.XXX, INC., as a Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
S/1
STEREO TOWN, INC., as a Borrower
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
XXX STORES CORPORATION., as Parent
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President - Finance
S/2
BANK OF AMERICA, N.A., as Agent
By: /s/Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A. (as successor in interest
to BANK ONE, DAYTON, N.A.), as a Lender
By: /s/Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Title: Account Executive
-------------------------------------
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Vice President
-------------------------------------
KEYBANK NATIONAL ASSOCIATION, as Syndication Agent
By: /s/Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
--------------------------------------
Title: Vice President
-------------------------------------
NATIONAL CITY BANK, DAYTON, as a Lender
By: /s/Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
