AMENDMENT NO. 5 TO AMENDED AND RESTATED LOAN AGREEMENT
AND TO OTHER LOAN DOCUMENTS
AMENDMENT AGREEMENT, dated as of December 31, 2000, to the Amended and
Restated Loan Agreement, dated as of July 31, 1995 (as 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 1.01 of the Loan Agreement is hereby amended, effective as
of October 1, 2000, by adding the following defined term in the correct
alphabetical order:
" 'AVA Dividend' shall mean, collectively, the dividend declared by
(i) Xxxxx to AVA on October 1, 2000, in the amount of $17,300,000 in
the form of a note payable and (ii) Xxx Radio to AVA on October 1,
2000, in the amount of $21,400,000 in the form of a note payable, which
notes shall be in form and substance satisfactory to the Agent and
pledged by AVA to the Agent for the benefit of the Lenders."
2. Section 9.02 of the Loan Agreement is hereby amended, effective as
of October 1, 2000, by (a) deleting the word "and" at the end of clause (iv)
thereof, (b) deleting the period at the end of clause (v) and substituting ";
and" therefor and (c) adding a new clause (vi) which reads as follows:
"(vi) the AVA Dividend."
3. Section 9.05 of the Loan Agreement is hereby amended, effective as
of October 1, 2000, by adding the following immediately after the words "except
that" in line 14 thereof:
"(a) Xxxxx and Xxx Radio may declare and pay (in the form of notes
payable) the AVA Dividend and (b)"
4. Section 9.06 of the Loan Agreement is hereby amended, effective as
of October 1, 2000 with respect to clauses (xi) and (xiii) and effective as of
May 31, 2000 with respect to clause (xii), by (a) deleting the word "and" at the
end of clause (ix) thereof, (b) deleting the period at the end of clause (x) and
substituting ";" therefor and (c) adding new clauses (xi) through (xiii) which
read as follows:
"(xi) the AVA Dividend;
(xii) the contributions and distributions of stock made pursuant to
the Plan and Agreement of Reorganization made and entered into as of
the 31st day of May, 2000, among the Parent, Xxxxx, Stereo Town, Xxx
Radio, Xxx Louisiana, Inc. and AVA; and
(xiii) the distribution of stock made pursuant to the Plan and
Agreement of Reorganization dated October 1, 2000 among the Parent, AVA
and Stereo Town."
5. Article IX of the Loan Agreement is hereby amended by adding a new
Section 9.16 which reads as follows:
"SECTION 9.16. Prepayment. Directly or indirectly prepay, acquire,
redeem or retire (other than at the stated maturity thereof) any Indebtedness,
except the prepayment of the Obligations in accordance with the terms of this
Agreement."
SECTION II. AMENDMENTS TO BORROWERS PLEDGE
AGREEMENT
1. Following the inclusion of the stock of AVA in the Pledged
Securities under the Parent Pledge Agreement pursuant to Section III hereof, the
stock of AVA shall be removed from the terms "Pledged Securities" and "Initial
Pledged Securities", wherever such terms may appear in the Borrowers Pledge
Agreement.
2. Wherever it may occur in the Borrowers Pledge Agreement, the term
"Pledged Securities" shall be deemed to include the stock of Xxx Louisiana, Inc.
("Xxx Louisiana"). Xxxxx, by its execution and delivery of this Amendment
Agreement, (i) hereby, and pursuant to the Borrowers Pledge Agreement, grants a
security interest in such stock to secure all Obligations and (ii) confirms that
such stock shall be subject to the terms and provisions of the Borrowers Pledge
Agreement.
3. Schedule A to the Borrowers Pledge Agreement is hereby amended by
deleting such schedule in its entirety and substituting, in lieu thereof,
Schedule A attached hereto as Annex A.
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SECTION III. AMENDMENTS TO PARENT PLEDGE AGREEMENT
1. Following the pledge of the stock of Xxx Radio and Xxxxx pursuant to
the Pledge Agreement executed by AVA (the "AVA Pledge Agreement") in favor of
the Agent and the inclusion of the stock of Xxx Louisiana in the Pledged
Securities under the Borrowers Pledge Agreement pursuant to Section II hereof,
the stock of Xxx Radio, Xxxxx and Xxx Louisiana shall be removed from the terms
"Pledged Securities" and "Initial Pledged Securities", wherever such terms may
appear in the Parent Pledge Agreement.
2. Wherever it may occur in the Parent Pledge Agreement, the term
"Pledged Securities" shall be deemed to include the stock of AVA. Xxx Stores, by
its execution and delivery of this Amendment Agreement, (i) hereby, and pursuant
to the Parent Pledge Agreement, grants a security interest in such stock to
secure all Obligations and (ii) confirms that such stock shall be subject to the
terms and provisions of the Parent Pledge Agreement.
3. Section 3 of the Parent Pledge Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (j) thereof, (b) deleting the
period at the end of clause (k) and substituting "; and" therefor and (c) adding
a new clause (l) which reads as follows:
"(l) without the prior written consent of the Required Lenders,
Pledgor will not own or operate any assets or properties or engage in
any business or other activity whatsoever (including, without
limitation, the incurring of Indebtedness or the granting of Liens),
except for its ownership of the Pledged Securities and activities
directly in connection therewith and except as may be otherwise
specifically permitted by the other Loan Documents."
4. Schedule A to the Parent Pledge Agreement is hereby amended by
deleting such schedule in its entirety and substituting, in lieu thereof,
Schedule A attached hereto as Annex B.
SECTION IV. AMENDMENTS TO AVA AND XXX INVESTMENT
GUARANTY
1. The Guaranty, dated January 11, 2000, made by Xxx Investment and AVA
in favor of the Agent is hereby amended by adding a new Section 16 which reads
as follows:
"16. Each Guarantor covenants to the Agent that without the prior
written consent of the Required Lenders, it will not own or operate any assets
or properties or engage in any business or other activity (including, without
limitation, the incurring of Indebtedness or the granting of Liens), except as
such Guarantor owns, operates or engages in on the date hereof, and except as
otherwise may be specifically permitted by the other Loan Documents."
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SECTION V. 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 government
authorities.
4. The Agent shall have received the AVA Pledge Agreement.
5. The Agent shall have received the certificates evidencing the shares
of stock of Xxx Louisiana being pledged pursuant to the Borrowers Pledge
Agreement, together with undated stock powers executed in blank, each duly
executed by the appropriate Person.
6. The Agent shall have received the certificates evidencing the shares
of stock of Xxx Radio and Xxxxx being pledged pursuant to the AVA Pledge
Agreement, together with undated stock powers executed in blank, each duly
executed by the appropriate Person.
7. The Agent shall have received the dividend notes being pledged
pursuant to the AVA Pledge Agreement duly endorsed.
8. The Agent shall have received executed copies of the (i) Plan and
Agreement of Reorganization, dated as of May 31, 2000, among the Parent, Xxxxx,
Stereo Town, Xxx Radio, Xxx Louisiana and AVA and (ii) Plan and Agreement of
Reorganization dated October 1, 2000 among the Parent, AVA and Stereo Town.
9. The Agent shall have received an opinion of Borrowers' counsel as to
such matters as the Agent may require, such opinion to be in form and substance
satisfactory to the Agent.
10. The Agent shall have received such other documents as the Lenders
or the Agent or the Agent's counsel shall reasonably deem necessary.
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SECTION VI. 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.
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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, the Borrowers Pledge Agreement and the
Parent Pledge Agreement 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, the Borrowers
Pledge Agreement and the Parent Pledge Agreement 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. Each of the parties hereto hereby agrees, confirms and ratifies that
Fleet Bank, N.A., as Agent is the successor in interest to NatWest Bank N.A., as
Agent with respect to all Loan Documents.
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.
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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).
"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
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XXX ALABAMA, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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
8
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
XXXXXXXXX.XXX, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX STORES CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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AVA ACQUISITION CORP.
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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:
10
NATIONAL CITY BANK (as successor by
merger to National City Bank, Dayton)
By:
------------------------------------
Name:
Title:
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:
11
ANNEX A
Schedule A to Borrowers Pledge Agreement
Borrower Holding Shares: Xxx Radio an Television, Inc.
Stock Issuer Class of Stock Certificate Number Number of
------------ -------------- ------------------ ---------
Shares
------
Xxx Kansas, Inc. Common 1 100
Xxx Alabama, Inc. Common 1 100
Borrower Holding Shares: Xxxxx & Xxxxx Appliances, Inc.
Stock Issuer Class of Stock Certificate Number Number of
------------ -------------- ------------------ ---------
Shares
------
Xxx Louisiana, Inc. Common 2 100
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ANNEX B
Schedule A to Parent Pledge Agreement
Stock Issuer Class of Stock Certificate Number Number of
------------ -------------- ------------------ ---------
Shares
------
AVA Acquisition Corp. Common 2 100
Stereo Town, Inc. Common A-6 555
xxxxxxxxx.xxx, Inc. Common 1 100
