AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 1 is dated as of the 3rd day of July, 1997 and is
by and among Congress Financial Corporation (Central), an Illinois
corporation ("Congress"), Xxxxxxx, Xxxxxx and Company, a Michigan
corporation ("Xxxxxxx") and Xxxxxxxxx Stores, Inc., an Ohio corporation
("Xxxxxxxxx").
W I T N E S S E T H:
WHEREAS, Congress and Xxxxxxx and Xxxxxxxxx (collectively,
"Borrowers") are parties to that certain Amended and Restated Loan and
Security Agreement, dated as of September 5, 1996 (as amended or otherwise
modified from time to time, the "Loan Agreement"), pursuant to which
Congress agreed to provide certain loans and other financial accommodations
to Borrowers;
WHEREAS, Borrowers and Congress have agreed to amend the Loan
Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Congress and Borrowers hereby agree as follows:
1. Amendment to Loan Agreement. Subject to the satisfaction of
the conditions precedent set forth in Section 2 of this Amendment No. 1, and
in reliance on the representations and warranties set forth in Section 4 of
this Amendment No. 1, the Loan Agreement is hereby amended as follows:
(a) Section 1.23 of the Loan Agreement is hereby amended to
delete the reference to "$24,000,000" and to replace it with a
reference to "$35,000,000 from December 1 of any year through August
31 of the following year and $42,000,000 from September 1 through
November 30 of each year."
(b) Section 2.2 of the Loan Agreement is hereby amended to
delete the reference to "$5,000,000" in subsection (d) thereof and
to substitute therefor a reference to "$10,000,000".
(c) Section 3.4 of the Loan Agreement is hereby amended to
delete the reference to "$24,000,000" therein and to replace it with
a reference to "the Maximum Credit in effect for the immediately
preceding month (or part thereof)".
(d) The table set forth in Section 12.1(c) of the Loan Agreement
immediately after the first paragraph of said section is hereby
amended to delete both references to "the Maximum Credit" therein
and to replace them with references to "the highest Maximum Credit
amount".
2. The effectiveness of the amendments herein are subject to
the satisfaction of the following conditions precedent or concurrent:
(a) Congress shall have received this Amendment No. 1, executed
by the Borrowers.
(b) Congress shall have received an amendment fee of $90,000,
paid in immediately available funds.
3. References; Effectiveness. Congress and Borrowers hereby
agree that all references to the Loan Agreement which are contained in any
of the other "Financing Agreements" (as that term is defined in the Loan
Agreement) shall refer to the Loan Agreement as amended by this Amendment
No. 1.
4. Representations and Warranties. To induce Congress to enter
into this Amendment No. 1, Borrowers hereby represent and warrant to
Congress that:
(a) The execution, delivery and performance by Borrowers of this
Amendment No. 1 are within their respective corporate powers, have
been duly authorized by all necessary corporate action, have
received all necessary governmental approval (if any shall be
required), and do not and will not contravene or conflict with any
provision of law applicable to Borrowers, the articles of
incorporation and code of regulations of either Borrower, any order,
judgment or decree of any court or governmental agency, or any
agreement, instrument or document binding upon any Borrower or any
of their respective property;
(b) Each of the Loan Agreement and the other Financing
Agreements, as amended by this Amendment No. 1, are the legal, valid
and binding obligation of Borrowers, enforceable against Borrowers
in accordance with its terms;
(c) The representations and warranties contained in the Loan
Agreement and the other Financing Agreements are true and accurate
as of the date hereof with the same force and effect as if such had
been made on and as of the date hereof, except that Xxxxxxx has
closed its Birmingham, Michigan store;
(d) Borrowers have performed all of their obligations under the
Loan Agreement and the Financing Agreements to be performed by them
on or before the date hereof and as of the date hereof, Borrowers
are in compliance with all applicable terms and provisions of the
Loan Agreement and each of the Financing Agreements to be observed
and performed by them and no event of default or other event which
upon notice or lapse of time or both would constitute an event of
default has occurred.
5. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
Amendment No. 1.
6. Continued Effectiveness. Except as specifically set forth
herein, the Loan Agreement and each of the Financing Agreements shall
continue in full force and effect according to its terms.
7. Costs and Expenses. Borrowers hereby agree that all
expenses incurred by Congress in connection with the preparation,
negotiation and closing of the transactions contemplated hereby, including
without limitation reasonable attorneys' fees and expenses, shall be part of
the "Obligations" (as defined in the Loan Agreement).
IN WITNESS WHEREOF, this Amendment No. 1 has been executed as of the
day and year first written above.
XXXXXXX XXXXXX AND COMPANY
By: /S/ XXXX X. XXXXXXXXX
Its: Vice President-Finance
XXXXXXXXX STORES, INC.
By: /S/ XXXX X. XXXXXXXXX
Its: Vice President-Finance
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By: /S/ XXXXX XXXX
Its: Vice President
