AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
PAMIDA, INC.
0000 X Xxxxxx
Xxxxx, Xxxxxxxx 00000
SEAWAY IMPORTING COMPANY
0000 X Xxxxxx
Xxxxx, Xxxxxxxx 00000
January 31, 1997
Congress Financial Corporation (Southwest)
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
BankAmerica Business Credit, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation (Southwest), a Texas corporation in its
individual capacity ("Congress"), BankAmerica Business Credit, Inc., formerly
known as BA Business Credit Inc., a Delaware corporation ("BABC," together with
Congress each individually a "Lender" and collectively, "Lenders"), Pamida,
Inc., a Delaware corporation ("Pamida"), Seaway Importing Company, a Nebraska
corporation ("Seaway," together with Pamida, collectively, "Borrowers") and
Congress Financial Corporation (Southwest), a Texas corporation, as Agent for
Lenders (in such capacity, "Agent") have entered into certain financing
arrangements pursuant to the Loan and Security Agreement, dated March 30, 1993,
by and among Agent, Lenders and Borrowers (as amended by Amendment No. 1 to Loan
and Security Agreement dated as of January 23, 1995, and Amendment No. 2 to Loan
and Security Agreement dated as of January 28, 1996 and Amendment No. 3 to Loan
and Security Agreement dated as of September 16, 1996 and as amended hereby, the
"Loan Agreement", and together with all agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto,
as the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, collectively, the "Financing
Agreements").
Borrowers have requested that the advance rate provisions of the Financing
Agreement be amended, and Agent and Lenders are willing to amend such provisions
of the Financing Agreements, subject to the terms and conditions contained
herein. By this Amendment, Agent, Lenders and Borrowers desire and intend to
evidence such amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein shall have the meanings
assigned thereto in the other Financing Agreements, unless otherwise defined
herein.
2. Revolving Loans; Advance Rate. Section 2.1(a) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefor:
(a) Subject to, and upon the terms and conditions contained herein and in the
other Financing Agreements, at the request of Borrowers, each of Lenders
severally, but not jointly, agrees to lend to Borrowers and authorizes and
appoints Agent to make Revolving Loans to Borrowers, for the account of and
as Agent for Lenders, in such amounts from time to time as Agent shall
determine, in its discretion, at Borrowers' request during the periods
indicated below of up to the percent of the value of Eligible Inventory of
Borrowers indicated for such period (or such greater or lesser percentage
thereof as Agent may determine from time to time), in any year:
Period Percent
---------------------------------- -------
(i) from February 1 through and 45%
including April 30
(ii) from October 1 through and 45%
including November 30
(iii) at all other times 40%
3. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrowers to Agent and Lenders pursuant to the Financing Agreements, Borrowers
hereby represent, warrant and covenant with and to Agent and Lenders as follows
(which representations, warranties and covenant are continuing and shall survive
the execution and delivery hereof and shall be incorporated into and made a part
of the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment (after giving
effect to the amendments to the Financing Agreements made by this
Amendment).
(b) This Amendment and the other amendment agreements delivered in connection
herewith, have been duly authorized, executed and delivered by each of
Borrowers and are in full force and effect as of the date hereof, and the
agreements and obligations of each of Borrowers contained herein and
therein constitute legal, valid and binding obligations of each of
Borrowers enforceable against each of Borrowers in accordance with their
respective terms.
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(c) All required consents or approvals of any persons other than Lenders and
Agent to the authorization, execution and delivery of this Amendment and
the other amendment agreements delivered in connection herewith have been
obtained by each of Borrowers and Guarantors, and the authorization,
execution and delivery hereof does not violate or breach any provision of
or constitute a default under any material indenture, mortgage, deed of
trust, agreement or instrument to which any of Borrowers or Guarantors is
or may be bound, including, without limitation, the Note Indenture.
4. Conditions Precedent. The effectiveness of the amendments contained
herein shall be subject to the satisfaction of each of the following conditions
precedent in a manner satisfactory to Agent on behalf of Lenders:
(a) Agent shall have received, in form and substance satisfactory to Agent, an
executed original of this Amendment, duly authorized, executed and
delivered by each of Borrowers and Guarantors; and
(b) no Event of Default shall have occurred and be continuing and no event
shall have occurred or condition be existing and continuing which, with
notice or passage of time or both, would constitute an Event of Default.
5. Effect of this Amendment.Except as modified pursuant hereto, no other
changes or modifications to the Financing Agreements are intended or implied and
in all other respects the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date hereof. To
the extent of any conflict between the terms of this Amendment and the other
Financing Agreements, the terms of this Amendment shall control.
6. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
7. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
8. Binding Effect.This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
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Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Agent and Lenders,
shall become a binding agreement among Borrowers, Agent and Lenders.
Very truly yours,
PAMIDA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: Sr. V.P.
SEAWAY IMPORTING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Title: Sr. V.P.
AGREED:
CONGRESS FINANCIAL CORPORATION
(SOUTHWEST), individually and as Agent
By: /s/ Xxxxxx Xxxxxx
Title: Sr. Vice President
BANKAMERICA BUSINESS CREDIT, INC., formerly known as BA Business Credit Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED:
PAMIDA HOLDINGS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Title: Sr. V.P.
PAMIDA TRANSPORTATION COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Title: Sr. V.P.
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