AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT
AND TO OTHER LOAN DOCUMENTS
AMENDMENT AGREEMENT, dated as of October 19, 1999, 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 ▇▇▇ RADIO AND TELEVISION, INC., an Ohio
corporation ("▇▇▇ Radio"), ▇▇▇▇▇ & ▇▇▇▇▇ APPLIANCES, INC., an Ohio corporation
("▇▇▇▇▇"), STEREO TOWN, INC., a Georgia corporation ("Stereo Town"), ▇▇▇
KANSAS, INC., a Kansas corporation ("▇▇▇ Kansas"), 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. ▇▇▇ Alabama, Inc., an Ohio corporation ("▇▇▇ Alabama") shall be
added as a party to the Loan Agreement as a "Borrower". By its execution and
delivery of this Amendment Agreement, ▇▇▇ Alabama agrees to be bound by all of
the terms and provisions of the Loan Agreement applicable to "Borrowers".
2. ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., an Ohio corporation ("▇▇▇ Internet") shall
be added as a party to the Loan Agreement as a "Borrower". By its execution
and delivery of this Amendment Agreement, ▇▇▇ Internet agrees to be bound by
all of the terms and provisions of the Loan Agreement applicable to
"Borrowers".
3. The preamble to the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"AMENDED AND RESTATED LOAN AGREEMENT dated as of July 31, 1995,
among ▇▇▇ RADIO AND TELEVISION, INC., an Ohio corporation ('▇▇▇ Radio'),
▇▇▇▇▇ & ▇▇▇▇▇ APPLIANCES, INC., an Ohio corporation ('▇▇▇▇▇'), STEREO
TOWN, INC., a Georgia corporation ('Stereo Town'), ▇▇▇ KANSAS, INC., a
Kansas corporation ('▇▇▇ Kansas'), ▇▇▇ ALABAMA, INC., an Ohio
corporation ('▇▇▇ Alabama'), ▇▇▇▇▇▇▇▇▇.▇▇▇, INC., an Ohio corporation
('▇▇▇ Internet' and together with ▇▇▇ Radio, ▇▇▇▇▇, Stereo Town, ▇▇▇
Kansas and ▇▇▇ Alabama, each a "Borrower" and, jointly and severally,
the "Borrowers"), the lenders named in Schedule 2.01 hereto
(collectively, the "Lenders"), and FLEET BANK, N.A. (as successor to
NatWest Bank N.A.), as agent for the Lenders (in such capacity, the
'Agent')."
4. Section 1.01 of the Loan Agreement is amended by adding the
following defined terms in the correct alphabetical order:
1
"'AVA' shall mean AVA Acquisition Corp., a Delaware corporation."
"'Permitted Agreements' shall mean the Agreement between ▇▇▇ Radio and
▇▇▇ Alabama, Inc., dated as of January 1, 1999, as amended, and the
Amended and Restated Loan Agreement dated as of April 15, 1998 among
Colona SynFuel Limited Partnership, L.L.L.P. (f/k/a Colona SynFuel,
L.P.), Somerset SynFuel, L.P. (f/k/a Pageton Synfuel, L.P.) and ▇▇▇
Investment, LLC, as amended by Amendment No. 1 to Amended and Restated
Loan Agreement, made as of the 24th day of July, 1998, effective as of
the 30th day of June, 1998, as such agreements are in effect on the
Second Amendment Date."
"'▇▇▇ Alabama' shall have the meaning assigned to such term in the
preamble of this Agreement."
"'▇▇▇ Internet' shall have the meaning assigned to such term in the
preamble of this Agreement."
"'▇▇▇ Investment' shall mean ▇▇▇ Investment, LLC, an Ohio limited
liability company."
"'Second Amendment Date' shall mean October 19, 1999."
5. Section 2.01(a) of the Loan Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (iii) thereof, (b) renumbering
clause (iv) as clause (vi) and (c) adding new clauses (iv) and (v) which read
as follows:
"(iv) ▇▇▇ Alabama shall not exceed an amount (the '▇▇▇ Alabama Borrowing
Base') equal to the sum of (1) up to 85% of the Net Amount of Eligible
Accounts of ▇▇▇ Alabama, plus (2) up to 65% of the Net Amount of Eligible
Inventory of ▇▇▇ Alabama comprised of Electronic Inventory, plus (3)
without duplication, with respect to the Net Amount of Eligible Inventory
of ▇▇▇ Alabama comprised of Non-Electronic Inventory, (x) up to 65% of
the value of that portion of such Non-Electronic Inventory of ▇▇▇
Alabama comprising 25% or less of the aggregate of all Eligible Inventory
of ▇▇▇ Alabama and (y) up to 50% of the value of that portion of the
Non-Electronic Inventory of ▇▇▇ Alabama which, when added together with
the Non-Electronic Inventory referenced in clause (x), comprises more
than 25% of the aggregate of all Eligible Inventory of ▇▇▇ Alabama, and"
"(v) ▇▇▇ Internet shall not exceed an amount (the '▇▇▇ Internet Borrowing
Base') equal to the sum of (1) up to 85% of the Net Amount of Eligible
Accounts of ▇▇▇ Internet, plus (2) up to 65% of the Net Amount of Eligible
Inventory of ▇▇▇ Internet comprised of Electronic Inventory, plus (3)
without duplication, with respect to the Net Amount of Eligible
Inventory of ▇▇▇ Internet comprised of Non-Electronic Inventory, (x) up
to 65% of the value of that portion of such Non-Electronic Inventory of
2
▇▇▇ Internet comprising 25% or less of the aggregate of all Eligible
Inventory of ▇▇▇ Internet and (y) up to 50% of the value of that portion
of the Non-Electronic Inventory of ▇▇▇ Internet which, when added
together with the Non-Electronic Inventory referenced in clause (x),
comprises more than 25% of the aggregate of all Eligible Inventory of ▇▇▇
Internet, and"
6. Section 2.01(a)(vi) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
(vi) Stereo Town shall not exceed an amount (the "Stereo Town
Borrowing Base" and, together with the ▇▇▇▇▇ Borrowing Base, ▇▇▇ Kansas
Borrowing Base, ▇▇▇ Radio Borrowing Base, ▇▇▇ Alabama Borrowing Base and
▇▇▇ Internet Borrowing Base, the "Borrowing Base") equal to the sum of
(1) up to 85% of the Net Amount of Eligible Accounts of Stereo Town,
plus (2) up to 65% of the Net Amount of Eligible Inventory of Stereo
Town comprised of Electronic Inventory, plus (3) without duplication,
with respect to the Net Amount of Eligible Inventory of Stereo Town
comprised of Non-Electronic Inventory, (x) up to 65% of the value of that
portion of such Non-Electronic Inventory comprising 25% or less of the
aggregate of all Eligible Inventory of Stereo Town and (y) up to 50% of
the value of that portion of the Non-Electronic Inventory of Stereo
Town which, when added together with the Non-Electronic Inventory
referenced in clause (x), comprises more than 25% of the aggregate of
all Eligible Inventory of Stereo Town; provided, however, that
commencing with the date, if any, upon which the Agent becomes aware
(whether through receipt of financial statements in accordance with
Section 8.01 hereof or otherwise) that the Parent and its Subsidiaries
on a Consolidated basis have suffered a pre-tax loss of $5,000,000 or
more for the fiscal year just ended (the amount of any such loss to be
calculated in accordance with GAAP as in effect on the date hereof),
the advance rates set forth in clauses (i)(2), (i)(3)(x), (ii)(2),
(ii)(3)(x), (iii)(2), (iii)(3)(x), (iv)(2), (iv)(3)(x), (v)(2),
(v)(3)(x), (vi)(2) and (vi)(3)(x) above shall be reduced to not more
than 55%; and, provided further, that in any event, amounts available
under the Total Commitment shall not exceed (i) $100,000,000 from January
1 through June 30 of each year and (ii) $150,000,000 from July 1 through
December 31 of each year.
7. The introductory paragraph of Article IX of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"Each Borrower, jointly and severally, covenants and agrees with the Agent
and each Lender that, so long as this Agreement shall remain in effect, or
any Obligations shall remain outstanding or unpaid or any Letter of
Credit shall remain outstanding, it will not, and will not cause or
permit any of its Subsidiaries to:"
8. Section 9.02 of the Loan Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (iii) thereof, (b) deleting the
period at the end of clause (iv) and substituting "; and" therefor and (c)
adding a new clause (v) which reads as follows:
3
"(v) Indebtedness owing by any Borrower to any other Borrower."
9. Section 9.03 of the Loan Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (x) thereof, (b) deleting the
period at the end of clause (xi) and substituting "; and" therefor and (c)
adding a new clause (xii) which reads as follows:
"(xii) Liens by ▇▇▇ Alabama in favor of ▇▇▇ Radio granted pursuant to
the Alabama Agreement and collaterally assigned to the Agent on behalf of
the Lenders."
10. Section 9.06 of the Loan Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (vi) thereof, (b) deleting the
period at the end of clause (vii) and substituting a semicolon therefor and
(c) adding new clauses (viii) through (x) which read as follows:
"(viii) investments in the capital stock, limited partnership
interests or other equity interests of ▇▇▇ Alabama, ▇▇▇ Investment, ▇▇▇
Internet, Colona SynFuel Limited Partnership, L.L.L.P. and Somerset
SynFuel, L.P., provided that none of the Borrowers or any of their
Subsidiaries may make loans to or investments in such entities after
the Second Amendment Date, other than in accordance with the Permitted
Agreements or as otherwise permitted by this Section 9.06;
(ix) the repurchase of stock and exchange of securities made pursuant
to the Contribution and Redemption Agreement made and entered into as of
the 1st day of January, 1999, among AVA, the Parent and ▇▇▇▇▇; and
(x) Indebtedness permitted by Section 9.02(v)."
SECTION II. AMENDMENT TO NOTES
1. ▇▇▇ Alabama shall be added as a party to each Note and shall be
jointly and severally liable with each other Borrower for such Note and the
Obligations. By its execution and delivery of this Amendment Agreement, ▇▇▇
Alabama agrees to bound by all of the terms and provisions of the Notes.
2. ▇▇▇ Internet shall be added as a party to each Note and shall be
jointly and severally liable with each other Borrower for such Note and the
Obligations. By its execution and delivery of this Amendment Agreement, ▇▇▇
Internet agrees to bound by all of the terms and provisions of the Notes.
SECTION III. AMENDMENT TO BORROWERS GUARANTY
1. ▇▇▇ Alabama shall be added as a party to the Borrowers Guaranty
and shall be a "Guarantor" as such term is defined in the Borrowers Guaranty.
4
By its execution and delivery of this Amendment Agreement, ▇▇▇ Alabama agrees
to bound by all of the terms and provisions of the Borrowers Guaranty.
2. ▇▇▇ Internet shall be added as a party to the Borrowers Guaranty
and shall be a "Guarantor" as such term is defined in the Borrowers Guaranty.
By its execution and delivery of this Amendment Agreement, ▇▇▇ Internet agrees
to bound by all of the terms and provisions of the Borrowers Guaranty.
3. The preamble to the Borrowers Guaranty is hereby amended and
restated in its entirety to read as follows:
"BORROWERS GUARANTY by ▇▇▇ RADIO AND TELEVISION, INC., an Ohio
corporation ('▇▇▇ Radio'), STEREO TOWN, INC., a Georgia corporation
('Stereo Town'), ▇▇▇▇▇ & ▇▇▇▇▇ APPLIANCES, INC., an Ohio corporation
('▇▇▇▇▇'), ▇▇▇ KANSAS, INC., a Kansas corporation ('▇▇▇ Kansas'), ▇▇▇
ALABAMA, INC., an Ohio corporation ('▇▇▇ Alabama') and ▇▇▇▇▇▇▇▇▇.▇▇▇, INC.,
an Ohio corporation ('▇▇▇ Internet', and together with ▇▇▇ Radio, Stereo
Town, ▇▇▇▇▇, ▇▇▇ Kansas and ▇▇▇ Alabama, each a 'Guarantor' and
collectively, the 'Guarantors'), dated July 31, 1995, in favor of FLEET
BANK, N.A. (as successor to NatWest Bank, N.A.), in its capacity as
agent (the 'Agent') for itself and for the Lenders hereinafter referred
to."
SECTION IV. AMENDMENTS TO BORROWERS SECURITY AGREEMENT
1. ▇▇▇ Alabama shall be added as a party to the Borrowers Security
Agreement and shall be a "Debtor" as such term is defined in the Borrowers
Security Agreement. By its execution and delivery of this Amendment Agreement,
▇▇▇ Alabama (i) agrees to be bound by all of the terms and provisions of the
Borrowers Security Agreement, (ii) hereby, and thereby, grants a security
interest in all assets owned by it which meet the description of Collateral
set forth on Schedule A of the Borrowers Security Agreement to secure all
Obligations and (iii) agrees and confirms that it and such assets shall be
subject to the terms and provisions of the Borrowers Security Agreement.
2. ▇▇▇ Internet shall be added as a party to the Borrowers Security
Agreement and shall be a "Debtor" as such term is defined in the Borrowers
Security Agreement. By its execution and delivery of this Amendment Agreement,
▇▇▇ Internet (i) agrees to be bound by all of the terms and provisions of the
Borrowers Security Agreement, (ii) hereby, and thereby, grants a security
interest in all assets owned by it which meet the description of Collateral
set forth on Schedule A of the Borrowers Security Agreement to secure all
Obligations and (iii) agrees and confirms that it and such assets shall be
subject to the terms and provisions of the Borrowers Security Agreement.
5
3. The preamble to the Borrowers Security Agreement is hereby amended
and restated in its entirety to read as follows:
"BORROWERS SECURITY AGREEMENT, dated as of January 31, 1989, as
amended and restated through July 31, 1995, made by ▇▇▇ RADIO AND
TELEVISION, INC., an Ohio corporation (' Radio'), ▇▇▇▇▇ & ▇▇▇▇▇
APPLIANCES, INC., an Ohio Corporation ('▇▇▇▇▇'), STEREO TOWN, INC., a
Georgia corporation ('Stereo Town'), ▇▇▇ KANSAS, INC., a Kansas corporation
('▇▇▇ Kansas'), ▇▇▇ ALABAMA, INC., an Ohio corporation ('▇▇▇ Alabama')
and ▇▇▇▇▇▇▇▇▇.▇▇▇, INC., an Ohio corporation ('▇▇▇ Internet', and
together with ▇▇▇ Radio, ▇▇▇▇▇, Stereo Town, ▇▇▇ Kansas and ▇▇▇
Alabama, each a Debtor' and, jointly and severally, the 'Debtors'), and
FLEET BANK, N.A. (as successor to NatWest Bank, N.A.), as agent (in such
capacity, referred to herein as 'Secured Party') for the several banks
and other financial institutions (the 'Lenders') from time to time
parties to the Amended and Restated Loan Agreement dated as of July 31,
1995 (as it may be further amended, modified or supplemented from time
to time, the 'Loan Agreement'; terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the Loan
Agreement)."
4. Exhibit 1 to Schedule I to the Borrowers Security Agreement is
hereby amended by deleting such exhibit in its entirety and substituting, in
lieu thereof, Exhibit 1 to Schedule I attached hereto as Annex A.
SECTION V. AMENDMENTS TO BORROWERS PLEDGE AGREEMENT
1. Wherever it may occur in the Borrowers Pledge Agreement, the
term "Pledged Securities" shall be deemed to include the stock of each of
▇▇▇ Alabama and AVA. Each of ▇▇▇ Radio and ▇▇▇▇▇, 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.
2. 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 B.
SECTION VI. AMENDMENTS TO SECURITY AGREEMENT - PATENTS
AND TRADEMARKS
1. ▇▇▇ Alabama shall be added as a party to the Security Agreement -
Patents and Trademarks and shall be a "Debtor" as such term is defined in the
Security Agreement - Patents and Trademarks. By its execution and delivery
of this Amendment Agreement, ▇▇▇ Alabama (i) agrees to be bound by all of the
6
terms and provisions of the Security Agreement - Patents and Trademarks, (ii)
hereby, and thereby, grants a security interest in all assets owned by it
which meet the description of Collateral set forth in the Security Agreement-
Patents and Trademarks to secure the Obligations and (iii) agrees and confirms
that it and such assets shall be subject to the terms and provisions of the
Security Agreement-Patents and Trademarks.
2. ▇▇▇ Internet shall be added as a party to the Security Agreement -
Patents and Trademarks and shall be a "Debtor" as such term is defined in the
Security Agreement - Patents and Trademarks. By its execution and delivery
of this Amendment Agreement, ▇▇▇ Internet (i) agrees to be bound by all of the
terms and provisions of the Security Agreement - Patents and Trademarks, (ii)
hereby, and thereby, grants a security interest in all assets owned by it
which meet the description of Collateral set forth in the Security Agreement-
Patents and Trademarks to secure the Obligations and (iii) agrees and
confirms that it and such assets shall be subject to the terms and provisions
of the Security Agreement-Patents and Trademarks.
3. The preamble to the Security Agreement - Patents and Trademarks is
hereby amended and restated in its entirety to read as follows:
"AGREEMENT, dated as of January 31, 1989, as amended and restated through
July 31, 1995, made by ▇▇▇ RADIO AND TELEVISION, INC., an Ohio corporation
('▇▇▇ Radio'), ▇▇▇▇▇ & ▇▇▇▇▇ APPLIANCES, INC., an Ohio Corporation
('▇▇▇▇▇'), STEREO TOWN, INC., a Georgia corporation ('Stereo Town', ▇▇▇
KANSAS, INC., a Kansas corporation ('▇▇▇ Kansas'), ▇▇▇ ALABAMA, INC., an
Ohio corporation ('▇▇▇ Alabama') and ▇▇▇▇▇▇▇▇▇.▇▇▇, INC., an Ohio
corporation ('▇▇▇ Internet') and together with ▇▇▇ Radio, ▇▇▇▇▇, Stereo
Town, ▇▇▇ Kansas and ▇▇▇ Alabama, each a 'Debtor' and, jointly and
severally, the 'Debtors'), and FLEET BANK, N.A. (as successor to
NatWest Bank, N.A.), as agent (in such capacity, referred to herein as
'Secured Party') for the several banks and other financial institutions
(the 'Lenders') from time to time parties to the Amended and Restated
Loan Agreement dated as of July 31, 1995 (as it may be further amended,
modified or supplemented from time to time, the 'Loan Agreement'; terms
used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Loan Agreement)."
4. Schedule C to the Security Agreement - Patents and Trademarks is
hereby amended by deleting such schedule in its entirety and substituting, in
lieu, thereof, Schedule C attached hereto as Annex C.
SECTION VII. AMENDMENTS TO PARENT PLEDGE AGREEMENT
1. The Agent hereby releases its Lien in the stock of AVA pledged to
it under the Parent Pledge Agreement. The stock of AVA shall be removed from
the terms "Pledged Securities" and "Initial Pledged Securities", wherever such
terms may appear in the Parent Pledge Agreement.
7
2. Wherever it may occur in the Parent Pledge Agreement, the term
"Pledged Securities" shall be deemed to include the stock of ▇▇▇ Internet.
The Parent, 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. 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 D.
SECTION VIII. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective upon the execution and
delivery of counterparts hereof by the Borrowers (including ▇▇▇ Alabama and ▇▇▇
Internet), 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
(including ▇▇▇ Alabama and ▇▇▇ Internet) and the Parent in this Amendment
Agreement shall be true and correct.
3. The Agent shall have received (i) a copy of the articles of
incorporation, in each case as amended to date, of each of ▇▇▇ Alabama and ▇▇▇
Internet, certified as of a recent date by the Secretary of State or other
appropriate official of the state of its organization, and a certificate as
to the good standing of each from such Secretary of State or other official,
and a certificate of good standing from the appropriate official of each state
in which it is qualified to do business, in each case dated as of a recent
date; (ii) a certificate of the Secretary of ▇▇▇ Alabama and ▇▇▇ Internet,
dated the Second Amendment Date and certifying (A) that attached thereto is
a true and complete copy of such Person's Code of Regulations as in effect
on the date of such certificate and at all times since a date prior to the
date of the resolution described in item (B) below, (B) that attached thereto
is a true and complete copy of a resolution adopted by such Person's Board of
Directors authorizing the execution, delivery and perfor-▇▇▇▇▇ of this
Amendment Agreement, the Agreement, the Security Documents, the Notes, the
other Loan Documents and the Credit Events hereunder and thereunder, and
that such resolution has not been modified, rescinded or amended and is
in full force and effect, (C) that such Person's articles of incorporation has
not been amended snce the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to (i) above, and (D) as to
the incumbency and specimen signature of each of such Person's officers
executing this Amendment Agreement or any other Loan Document delivered in
connection herewith; (iii) a certificate of another of such Person's officers
as to incumbency and signature of its Secretary; and (iv) such other documents
as the Agent or any Lender may reasonably request.
8
4. The Agent shall have received a (i) certificate of the Secretary
of each of the Parent and the Borrowers, other than ▇▇▇ Alabama and ▇▇▇
Internet, dated the Second Amendment Date and certifying (A) that attached
thereto is a true and complete copy of a resolution adopted by such Person's
Board of Directors authorizing the execution, delivery and perfor-▇▇▇▇▇ of
this Amendment Agreement, the other Loan Documents and the Credit Events
hereunder, as applicable, and that such resolution has not been modified,
rescinded or amended and is in full force and effect, (B) that such Person's
certificate or articles of incorporation or constitutive documents and such
Person's By-laws or Code of Regulations have not been amended since the date
of the Amendment Date, and (C) as to the incumbency and specimen signature
of each of such Person's officers executing this Amendment Agreement or any
other Loan Document delivered in connection herewith; (ii) a certificate of
another of such Person's officers as to incumbency and signature of its
Secretary; and (iii) such other documents as the Agent or any Lender may
reasonably request.
5. The Borrower shall have ordered requests for copies or information
on Form UCC-11 or certificates satisfactory to the Agent of a UCC Reporter
Service, of all effective UCC financing statements, tax liens and payment
liens which name as debtor ▇▇▇ Alabama, ▇▇▇ Internet, ▇▇▇ Investment or AVA
and which are filed in the appropriate offices in the States in which are
located the chief executive office and other operating offices of ▇▇▇
Alabama, ▇▇▇ Internet ▇▇▇ Investment or AVA, as the case may be, together with
copies of such financing statements.
6. The Agent shall have received each document (including, without
limitation, each UCC financing statement, assignment and amendment) required
by law or requested by the Agent to be filed, registered or recorded in order
to create in favor of the Agent for the benefit of the Lenders a first
priority perfected security interest in the Collateral owned by ▇▇▇ Alabama
and ▇▇▇ Internet.
7. The Agent shall have received the certificates evidencing the
shares of stock of AVA and ▇▇▇ Alabama being pledged pursuant to the Borrowers
Pledge Agreement, together with undated stock powers executed in blank, each
duly executed by the appropriate Person.
8. The Agent shall have received the certificates evidencing the
shares of stock of ▇▇▇ Internet being pledged pursuant to the Parent Pledge
Agreement, together with undated stock powers executed in blank, each duly
executed by the appropriate Person.
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.
9
10. The Agent shall have received an amendment to the Agreement
between ▇▇▇ Radio and ▇▇▇ Alabama, Inc., dated as of January 1, 1999,
permitting ▇▇▇ Alabama to grant and permit to exist a valid, perfected and
enforceable first priority Lien on and security interest in the Collateral
in favor of the Agent on behalf of the Lenders.
11. The Agent shall have received assignments of any UCC-1
Financing Statements that have been filed by ▇▇▇ Radio, as secured party,
against ▇▇▇ Alabama.
12. The Agent shall have received copies of (i) the Inventory
Purchase Agreement, dated as of May 5, 1999, between ▇▇▇ Radio and ▇▇▇
Internet (ii) the Management Services Agreement, dated as of May 5, 1999,
between ▇▇▇ Radio and ▇▇▇ Internet, and (iii) the License Agreement, dated
as of May 5, 1999 between ▇▇▇ Kansas and ▇▇▇ Internet.
13. The Agent shall have received such other documents as the
Lenders or the Agent or the Agent's counsel shall reasonably deem necessary.
SECTION IX. CONDITIONS SUBSEQUENT
The Borrowers (including ▇▇▇ Alabama and ▇▇▇ Internet) hereby agree
and covenant to satisfy the following additional conditions within 30 days of
the date hereof:
1. The Agent shall have received a Guaranty and a Security Agreement,
each duly executed by ▇▇▇ Investment and AVA, each in form and substance
satisfactory to the Agent.
2. The Agent shall have received clipped copies of requests for
copies or information on Form UCC-11 or certificates satisfactory to the Agent
of a UCC Reporter Service, listing all effective UCC financing statements,
tax liens and payment liens which name as debtor ▇▇▇ Alabama, ▇▇▇ Internet,
▇▇▇ Investment or AVA and which are filed in the appropriate offices in the
States in which are located the chief executive office and other operating
offices of ▇▇▇ Alabama, ▇▇▇ Internet, ▇▇▇ Investment or AVA, as the case may
be, together with copies of such financing statements. With respect to any
liens not permitted pursuant to Section 9.03 of the Loan Agreement, the
Agent shall have received termination statements in form and substance
satisfactory to it.
3. The Agent shall have received each document (including, without
limitation, each UCC financing statement, assignment and amendment) required by
law or requested by the Agent to be filed, registered or recorded in order to
create in favor of the Agent for the benefit of the Lenders a first priority
perfected security interest in the Collateral owned by ▇▇▇ Investment and
AVA, other than ▇▇▇ Investment's limited partnership interests in Colona
SynFuel Limited Partnership, L.L.L.P. and Somerset SynFuel, L.P.
4. The Agent shall have received a Pledge Agreement executed by ▇▇▇▇▇
and AVA pledging their respective membership interests in ▇▇▇ Investment.
10
5. The Agent shall have received an Assignment of Contracts as
Collateral with respect to each Permitted Agreement, together with assignments
of any UCC-1 Financing Statements that have been filed by ▇▇▇ Investment, as
secured party against Colona SynFuel Limited Partnership, L.L.L.P. (f/k/a
Colona SunFuel, L.P.).
SECTION X. MISCELLANEOUS
1. By its signature below, each of the Borrowers (including ▇▇▇
Alabama and ▇▇▇ Internet) 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 (including ▇▇▇ Alabama and ▇▇▇ Internet) 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 (including ▇▇▇ Alabama and ▇▇▇
Internet) 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 (including ▇▇▇ Alabama and ▇▇▇ Internet) and the
Parent and constitutes a legal, valid and binding obligation of each of the
Borrowers (including ▇▇▇ Alabama and ▇▇▇ Internet) 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;
11
(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 (including ▇▇▇ Alabama and ▇▇▇ Internet) 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.
By its signature below, each of the Borrowers (including ▇▇▇ Alabama and
▇▇▇ Internet) 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 Guaranty, the Borrowers
Security Agreement, the Borrowers Pledge Agreement, the Security Agreement-
Patents and Trademarks 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 Guaranty, the Borrowers Security Agreement,
the Borrowers Pledge Agreement, the Security Agreement-Patents and Trademarks
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 (including ▇▇▇
Alabama and ▇▇▇ Internet) or the Parent requiring the consent of the Agent or
any Lender, except to the extent specifically provided for herein.
3. Each Borrower (including ▇▇▇ Alabama and ▇▇▇ Internet) 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.
12
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"
▇▇▇ RADIO AND TELEVISION, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
▇▇▇▇▇ & ▇▇▇▇▇ APPLIANCES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
STEREO TOWN, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
▇▇▇ KANSAS, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
▇▇▇ ALABAMA, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
13
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
"Parent"
▇▇▇ STORES CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
"Lenders"
FLEET BANK, N.A.,
Individually
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK ONE, DAYTON, N.A.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ FINANCIAL, INC.
By:/s/ ▇. ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
14
NATIONAL CITY BANK, DAYTON
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE PROVIDENT BANK
By:/s/ ▇▇▇▇▇▇ ▇. Brunswick
Name: ▇▇▇▇▇▇ ▇. Brunswick
Title: Senior Vice President
THE FIFTH THIRD BANK
By:/s/ K. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: K. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FIRSTSTAR BANK, N.A.
(as successor to Star Bank, N.A.)
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
"Agent"
FLEET BANK, N.A.,
As Agent
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
