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Exhibit 10(hh)
AMENDMENT NO. 1
TO
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDMENT NO. 1, dated as of December 30, 1999 (this "AMENDMENT"), to the
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of July 27, 1998, as
heretofore amended (the "SECURITY AGREEMENT"), among THE XXXXX-XXXXXXX STORES
CORP. (the "BORROWER"), the other Grantors listed on the signature pages hereto
and CITICORP USA, INC., as agent for the Lenders, the Issuer and the Swing Loan
Bank (in that capacity, the "AGENT") under that certain Amended and Restated
Credit Agreement, dated as of July 27, 1998, among the Borrower, the financial
institutions party thereto, Citibank, N.A., as issuer (the "ISSUER"), and the
Agent.
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Agent on behalf of the Lenders
amend the Security Agreement as provided below; and
WHEREAS, the Agent has agreed to, and the Majority Lenders have consented
to, such amendments on the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used but not otherwise
defined in this Amendment shall have the meanings assigned thereto in the Credit
Agreement.
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT. As of the Effective Date,
the Security Agreement shall be amended as follows:
(a) By amending Section 2 thereof by adding the following language at the
end of Section 2(a)(iii): "or that relate to any membership interests or
partnership interests owned by the Borrower and/or any other Grantor in any
limited liability company or limited partnership, respectively,".
(b) By amending Section 5 thereof by adding the following new Section
5(p):
"(p) Each Grantor hereby covenants that each limited liability
company in which it holds any membership
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interest will have an operating agreement that provides that, upon the
occurrence and during the continuance of an Event of Default, the Agent
on behalf of the Lenders shall be entitled to exercise all of the rights
of such Grantor and that a transferee or assignee of such membership
interest in any such limited liability company shall become a member of
such limited liability company entitled to participate in the management
of such limited liability company to the same extent as the transferor
thereof and, upon the transfer of the entire interest of the transferor,
such transferor ceases to be a member. Each Grantor covenants and
agrees that it will not permit the amendment of any operating agreement
governing a limited liability company in which it holds any membership
interest in any way to adversely affect the perfection of the security
interest in the membership interest held by such Grantor as provided for
herein, including electing to treat the membership interest held by such
Grantor as a security under Section 8-103 of the UCC or to otherwise
adversely affect the Secured Parties."
(c) By amending Section 5 thereof by adding the following new Section
5(q):
"(q) Each Grantor hereby covenants that each limited partnership
in which it holds any partnership interest will have a partnership
agreement that provides that, upon the occurrence and during the
continuance of an Event of Default, the Agent on behalf of the Lenders
shall be entitled to exercise all of the rights of such Grantor and that
a transferee or assignee of such partnership interest in any such limited
partnership shall become a partner of such limited partnership entitled
to participate in the management of such limited partnership to the same
extent as the transferor thereof and, upon the transfer of the entire
interest of the transferor, such transferor ceases to be a partner. Each
Grantor covenants and agrees that it will not permit the amendment of
any partnership agreement governing a limited partnership in which it
holds any partnership interest in any way to adversely affect the
perfection of the security interest in the partnership interest held by
such Grantor as provided for herein, including electing to treat the
partnership interest held by such Grantor as a security under Section 8-103
of the UCC or to otherwise adversely affect the Secured Parties."
SECTION 3: ADDITION OF NEW GRANTORS. Xxxxx-Xxxxxxx Holdings, Inc., an Ohio
corporation ("Holdings"), Xxxxx-Xxxxxxx Operations, LLC, an Ohio limited
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liability company ("Operations"), and Xxxxx-Xxxxxxx Indiana, L.P., an Indiana
limited partnership ("EBI"), are hereby added as parties to the Security
Agreement as Grantors. By its execution hereof Holdings, Operations and EBI
each expressly assumes all obligations as a Grantor in the Security Agreement
and grants the Liens on its property provided for therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Grantor hereby represents
and warrants to the Lenders and the Agent that (i) the execution, delivery and
performance of this Amendment has been duly authorized by all requisite
corporate, partnership or limited liability company action on the part of such
Grantor and will not violate the certificate of incorporation, certificate of
formation, by-laws or operating agreement or other comparable organizational
documents of such Grantor; (ii) this Amendment is the legal, valid, binding
and enforceable obligation of such Grantor, enforceable against it in
accordance with its terms; (iii) the representations and warranties contained
in the Security Agreement are true and correct in all material respects on and
as of the date hereof as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates to an earlier
date and for changes therein permitted or contemplated by the Security
Agreement as amended by this Amendment; and (iv) no Default or Event of Default
under the Credit Agreement has occurred and is continuing.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective (the "EFFECTIVE DATE") when, and only when, the Agent shall have
received counterparts hereof which when taken together shall have been signed
by each Grantor (whether on the same or different counterparts).
SECTION 6. EFFECT ON THE LOAN DOCUMENTS.
(a) On and after the date hereof, each reference in the Security Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import,
and each reference in the other Loan Documents to the Security Agreement, shall
mean and be a reference to the Security Agreement, as amended hereby.
(b) Except as specifically amended herein, the Security Agreement and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender under any of the Loan Documents, nor shall it constitute a
waiver of any provision of any of the Loan Documents, including, without
limitation, a waiver of any rights of any Lender arising out of, or relating to,
any Default or Event of Default that has occurred and is continuing.
SECTION 7. COUNTERPARTS.
This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and
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delivered shall be an original, but all of which shall together constitute one
and the same instrument.
SECTION 8. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date first above written.
BORROWER:
THE XXXXX-XXXXXXX STORES CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Controller
GRANTORS:
THE BEE-GEE SHOE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Controller
THE EL-BEE CHARGIT CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Controller
XXXXX-XXXXXXX WEST XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Controller
THE XXXXX-XXXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Controller
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XXXXX-XXXXXXX OPERATIONS, LLC
By: The Xxxxx-Xxxxxxx Stores Corp.,
as its Managing Member
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Controller
XXXXX-XXXXXXX INDIANA, L.P.
By: The Xxxxx-Xxxxxxx Stores Corp.,
as its General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Controller
AGENT:
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
