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EXHIBIT 4(a)(xi)
NINTH MODIFICATION OF AMENDED AND RESTATED
SECURED CREDIT AGREEMENT
AND OTHER RELATED DOCUMENTS
THIS NINTH MODIFICATION OF AMENDED AND RESTATED SECURED CREDIT
AGREEMENT AND OTHER RELATED DOCUMENTS (this "Agreement") is made as of October
21, 1999, by and among XXXX XXXXXX STORES, INC., an Indiana corporation ("PH
Stores"), XXXX XXXXXX MERCHANDISING, INC., an Indiana corporation ("PH
Merchandising"), XXXX XXXXXX RETAILING, INC., an Indiana corporation ("PH
Retailing"), and THE X. XXXXXXXX COMPANY, an Indiana corporation ("Xxxxxxxx"),
and LASALLE BANK NATIONAL ASSOCIATION, a national banking association, the
successor to LaSalle National Bank (herein, together with its successors and
assigns, called the "Bank").
All capitalized terms and phrases, unless defined herein, shall have
the specific meanings ascribed to such terms in that certain Secured Credit
Agreement originally dated as of October 28, 1993, by and between PH Stores and
Bank, as amended and restated by that certain Amended and Restated Secured
Credit Agreement dated as of January 20, 1994, as modified and amended by those
certain First through Eighth Modifications of the Amended and Restated Secured
Credit Agreement, and Related Documents dated as of October 31, 1994, January
31, 1995, September 28, 1995, May 8, 1996, April 9, 1997, November 19, 1998,
February 1, 1999, and April 19, 1999 (as so amended, the "Credit Agreement").
WHEREAS, Borrower (as that term is defined in the Credit Agreement) has
requested that Bank make various modifications to the Credit Agreement and
certain of the Related Documents, and Bank has so agreed, on the terms and
conditions more specifically set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, Borrower and Bank do hereby agree as follows:
1. The preambles to this Agreement are fully incorporated herein by
this reference thereto with the same force and effect as though restated herein.
2. Each definition, numbered section and provision of the Credit
Agreement set forth below in this paragraph 2 supersedes and replaces the
corresponding definition, numbered section and provision of the Credit
Agreement. To the extent that any of the definitions, numbered sections and
provisions of the Credit Agreement set forth below in this paragraph 2 do not
correspond to any definition, numbered section or provision of the Credit
Agreement, such definition, numbered section or provision shall be deemed to
have been added to the Credit Agreement as set forth below and in the
appropriate order. The Table of Contents to the Credit Agreement shall be
understood to have been modified to reflect these changes and incorporated
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provisions. Accordingly, effective as of October 21, 1999 (the "Modification
Date"), the Credit Agreement is modified as set forth below in this paragraph 2:
(a)
""MAXIMUM REVOLVING CREDIT AVAILABILITY" means, as of any
given date, the lesser of (i) the Borrowing Base minus the Letter
of Credit Reserve minus the Revolving Loan Balance and minus the
Term B Loan Balance or (II) $25,000,000 minus the Letter of Credit
Reserve minus the Revolving Loan Balance and minus the Term B Loan
Balance, each such amount calculated as of such date and subject
further to the limitations set forth in Section 2.1.@
(b)
"2.1 (a) REVOLVING CREDIT COMMITMENT. On the terms and subject to
the conditions set forth in this Agreement, Bank agrees to make
Revolving Loans to Borrower and to issue Letters of Credit,
pursuant to Section 2.3, for the account of the Borrower, from time
to time before the Revolving Credit Termination Date in such
aggregate amounts as Borrower may from time to time request but not
exceeding at any one time outstanding the lesser of (i) the
Borrowing Base or (ii) $25,000,000; provided, however, that the
issuance of standby Letters of Credit shall be limited to
$1,000,000 in the aggregate. Borrower shall have the right to repay
and reborrow any of the Revolving Loans in increments of $100,000
(or $25,000 integral multiples); provided, however, that it shall
be a condition precedent to any reborrowing that as of the date of
any reborrowing all of the conditions to borrowing set forth in
this Agreement shall be satisfied and all representations and
warranties made herein shall be true and correct in all material
respects as of such date.@
(c)
"2.5 REVOLVING LOAN AND TERM B LOAN NON-USE FEE. During the term of
this Agreement and continuing until, but excluding, the Maturity
Termination Date, Borrower shall pay to Bank, on a quarterly basis,
a non-use fee of one-quarter of one percent (0.25%) per annum on
the lesser of (i) the excess of (A) $35,000,000.00 over (B) the
daily average of the aggregate principal amount of (X) all
outstanding Revolving Loans and (Y) all outstanding Term B Loans
and (Z) all Letters of Credit for the quarter (or, if applicable,
shorter period) then ending and (ii) $15,000,000.00. Such non-use
fee shall be payable in arrears on the first day of each May,
August, November and February, for the quarters ending on January
31, April 30, July 31 and October 31 of each year during the term
of this Agreement and on the Revolving Credit Termination Date."
3. REFERENCES. All references in the Loan Documents to the Credit
Agreement hereby are understood to be to the Credit Agreement as modified
hereby.
4. CONDITIONS TO EFFECTIVENESS. Provided that no unwaived Default or
Event of Default shall then exist other than those that would exist but for the
execution of this Amendment, this Amendment shall be deemed to be effective as
of October 21, 1999 (the "Effective Date"),
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provided all of the following conditions are satisfied in a manner, form and
substance acceptable to Bank:
(a) EXECUTION OF AMENDMENT. This Amendment (including the attached
Joinder) and a Second Amended and Restated Revolving Note, duly
authorized and fully executed, and in form and substance satisfactory
to Bank shall have been delivered to Bank.
(b) DELIVERY OF OTHER DOCUMENTS.
(i) True, complete and accurate copies, duly certified by an
officer of each entity comprising Borrower, of all documents
evidencing any necessary corporate action, resolutions, consents
and governmental approvals, if any, required for the execution,
delivery and performance of this Amendment, and the Joinder and any
other document, instrument or agreement executed or delivered in
connection therewith by the Borrower shall have been delivered to
Bank; and
(ii) Such other documents, instruments or agreements as the
Bank may reasonably request shall have been delivered to Bank.
5. In the event of any conflict among the terms of the Credit
Agreement and the Related Documents as modified by this Agreement, the terms of
the Credit Agreement as modified by this Agreement shall control. All terms and
provisions of the Related Documents corresponding to terms and provisions of the
Credit Agreement prior to the date of this Agreement shall be deemed modified in
accordance with the terms of this Agreement.
6. Borrower hereby warrants and represents that (i) Borrower has no
defense, offset or counterclaim with respect to the payment of any sum owed to
Bank, or with respect to any covenant in the Loan Documents; (ii) Bank, on and
as of the date hereof, has fully performed all obligations to Borrower which it
may have had or has on and as of the date hereof; and (iii) other than as
expressly set forth herein, by entering into this Agreement, Bank does not waive
any condition or obligation in the Credit Agreement and the Related Documents.
7. Borrower hereby agrees to execute and deliver promptly to Bank, at
Bank's request, such other documents as Bank, in its reasonable discretion,
shall deem necessary or appropriate to evidence the transaction contemplated
herein.
8. Borrower agrees to pay all fees and expenses associated with the
consummation of the transactions contemplated in this Agreement, including,
without limitation, reasonable fees and expenses of Bank's counsel and related
expenses.
9. Time is of the essence of this Agreement.
10. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which, taken together, shall
constitute one and the same Agreement.
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11. Except as otherwise set forth herein to the contrary, the Loan
Documents remain unmodified and continue in full force and effect. Borrower
hereby reaffirms, confirms and ratifies each and every covenant, condition,
obligation and provision set forth in the Credit Agreement and the Related
Documents, each as modified hereby.
[END OF PAGE]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed and delivered this Agreement as of the day and year first
above written.
BORROWER: XXXX XXXXXX STORES, INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate Secretary
XXXX XXXXXX MERCHANDISING, INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
------------------------------
Controller and Corporate Secretary
XXXX XXXXXX RETAILING INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate Secretary
THE X. XXXXXXXX COMPANY,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate Secretary
BANK: LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
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Title: Vice President
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Commercial Banking
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SECOND AMENDED AND RESTATED
REVOLVING NOTE
$25,000,000.00 CHICAGO, ILLINOIS
AS OF OCTOBER 21, 1999
FOR VALUE RECEIVED, XXXX XXXXXX STORES, INC., an Indiana corporation
XXXX XXXXXX MERCHANDISING, INC., an Indiana corporation, XXXX XXXXXX RETAILING,
INC., an Indiana corporation, and THE X. XXXXXXXX COMPANY, an Indiana
corporation (together with their successors and assigns, "Maker"), jointly and
severally, promise to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a
national banking association (together with its successors and assigns, "Bank"),
on or before the Revolving Credit Maturity Date, at the Bank's principal office
in Chicago, Illinois, the principal sum of TWENTY-FIVE MILLION AND NO/100
DOLLARS ($25,000,000.00), or, if less, the Revolving Loan Balance at such time,
plus accrued and unpaid interest thereon and all other charges applicable
thereto, all as set forth more fully in that Amended and Restated Secured Credit
Agreement dated as of January 20, 1994, among Maker and Bank (as the same may be
amended, modified, supplemented or restated from time to time, the "Credit
Agreement"). All capitalized terms used but not elsewhere defined herein shall
have the same meanings as are ascribed to them in the Credit Agreement.
This Note is executed to evidence the Revolving Loan described in, and
is subject to the terms and conditions of, the Credit Agreement. This Note shall
bear interest at the applicable rates set forth in the Credit Agreement, and
interest on this Note shall be paid, and principal on this Note shall and may be
prepaid, in accordance with the terms of the Credit Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America.
This Note is secured pursuant to the Credit Agreement and various
Collateral Documents referred to therein, and reference is made thereto for a
statement of terms and provisions.
In addition to, and not in limitation of, the foregoing and the
provisions of the Credit Agreement hereinabove referred to, Maker further
agrees, subject only to any limitation imposed by applicable law, to pay all
expenses, including reasonable attorneys' fees and expenses, incurred by the
holder of this Note in seeking to collect any amounts payable hereunder which
are not paid when due, whether by acceleration or otherwise.
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This Note is binding upon Maker and its successors and assigns, jointly
and severally, and shall inure to the benefit of the Bank and its successors and
assigns. This Note is made under and governed by the laws of the State of
Illinois without regard to conflict of laws principles.
This Note is an amendment and restatement in the entirety of that
certain Amended and Restated Revolving Note made by Maker dated April 19, 1999
and is made in substitution and not in payment thereof, and is not intended and
shall not be deemed to constitute a novation.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have executed and delivered this Note, on a joint and several basis, as
of the day and year first above written.
MAKER: XXXX XXXXXX STORES, INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate
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Secretary
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XXXX XXXXXX MERCHANDISING, INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate
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Secretary
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XXXX XXXXXX RETAILING INC.,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate
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Secretary
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THE X. XXXXXXXX COMPANY,
an Indiana corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
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Title: Vice President - Finance,
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Controller and Corporate
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Secretary
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