Exhibit 4(n)
AMENDMENT NO. 7 TO AMENDED AND RESTATED LOAN AGREEMENT
AND TO OTHER LOAN DOCUMENTS
AMENDMENT AGREEMENT, dated as of November 25, 2002, to the Amended and
Restated Loan Agreement, dated as of July 31, 1995 (as the same has been or may
be further amended, supplemented, modified or restated in accordance with its
terms, the "Loan Agreement") among XXX RADIO AND TELEVISION, INC., an Ohio
corporation ("Xxx Radio"), XXXXX & XXXXX APPLIANCES, INC., an Ohio corporation
("Xxxxx"), STEREO TOWN, INC., a Georgia corporation ("Stereo Town"), XXX KANSAS,
INC., a Kansas corporation ("Xxx Kansas"), XXX ALABAMA, INC., an Ohio
corporation ("Xxx Alabama"), XXXXXXXXX.XXX, INC., an Ohio corporation ("Xxx
Internet" and together with "Xxx Radio, Xxxxx, Stereo Town, Xxx Kansas and Xxx
Alabama, each a "Borrower" and collectively, the "Borrowers"), 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. The definition of "Borrower Stock Repurchase" in Section 1.01 of
the Loan Agreement is hereby amended by deleting "$25,000,000" where it appears
in clause (ii) thereof and substituting "$35,000,000" therefor.
2. Section 1.01 of the Loan Agreement is hereby further amended by
adding the following defined terms in correct alphabetical order:
"'Xxx Investment I' shall mean Xxx Investment I, LLC, an Ohio limited
liability company"
"'Xxx I Net Account' shall mean the excess of (i) the amounts advanced
by the Borrowers to Xxx Investment I from time to time over (ii) the
amounts repaid or returned by Xxx Investment I to any Borrower from
time to time, which shall not exceed $15,000,000 at any time
outstanding."
3. Section 9.06 of the Loan Agreement is hereby amended by:
(a) inserting the term "Xxx Investment I," after the term "Xxx
Investment," appearing in clause (viii) thereof; and
(b) deleting each reference to "$60,000,000" appearing in clause (xi)
thereof and substituting "$110,000,000", except that after the first
inclusion of "$110,000,000" there shall follow the following
parenthetical expression "(which shall include the Xxx I Net
Account)".
4. Section 10.01(j) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(j) if Availability shall be less than (x) $25,000,000 at any time
during the twelve month period immediately subsequent to any Permitted
Acquisition or Borrower Acquisition or (y) $35,000,000 at any time during
the twelve month period immediately subsequent to any Stock Repurchase or
Borrower Stock Repurchase."
SECTION II. AMENDMENT TO PARENT GUARANTY
1. Section 14 of the Parent Guaranty is hereby amended by (i) deleting
each reference to "$60,000,000" appearing in paragraph (g) thereof and
substituting "$110,000,000" therefor and (ii) deleting "$25,000,000" where it
appears in clause (I) of paragraph (g) thereof and substituting "$35,000,000"
therefor.
SECTION III. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective upon the execution and
delivery of counterparts hereof by the Borrowers, 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 and the
Parent in this Amendment Agreement shall be true and correct.
3. All required corporate actions in connection with the execution and
delivery of this Amendment Agreement shall have been taken, and each shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received all information and copies of all documents, including, without
limitation, records of requisite corporate action that the Agent may reasonably
request, to be certified by the appropriate corporate person or governmental
authorities.
4. The Borrower(s) 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 Xxx Investment I and which are filed in the
appropriate offices in the States in which are located the chief executive
office and other operating offices of Xxx Investment I and in which Xxx
Investment I has been established, together with copies of such financing
statements.
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SECTION IV. CONDITIONS SUBSEQUENT
The Borrowers 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 Xxx Investment I, 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 Xxx Investment I and which are filed in the
appropriate offices in the States in which are located the chief executive
office and other operating offices of Xxx Investment I and in which Xxx
Investment I has been established, 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 Xxx Investment I other
than the facility presently located at Gillette, Wyoming.
4. The Agent shall have received a Pledge Agreement executed by AVA
and Pinnacle Advisors, LLC ("Pinnacle") pledging their respective membership
interests in Xxx Investment I, it being understood that the Borrowers shall use
their best efforts to obtain such pledge from Pinnacle.
5. The Agent shall have received a Phase II environmental report
performed on the property of Xxx Investment I located in Gillette, Wyoming and a
copy of the IRS private ruling letter received by Xxx Investment I relating to
'SS'29 of the Code.
6. The Agent shall have received such other opinion letters, documents
and assignments as it may reasonably request in respect of the foregoing.
SECTION V. MISCELLANEOUS
1. By its signature below, each of the Borrowers 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 and the Parent represents and
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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 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 and the Parent and constitutes a legal, valid and
binding obligation of each of the Borrowers 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;
(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 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 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 and the Parent Guaranty is hereby
ratified and confirmed in all respects and, except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Loan Agreement and the Parent Guaranty shall remain unamended, unwaived and in
effect in accordance with their respective terms. The amendments 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 or the Parent requiring the consent of the Agent or any Lender,
except to the extent specifically provided for herein.
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3. Each Borrower 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.
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"
XXX RADIO AND TELEVISION, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX KANSAS, INC.
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By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Parent"
XXX STORES CORPORATION
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
"Guarantors"
XXX RADIO AND TELEVISION, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXX & XXXXX APPLIANCES, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
STEREO TOWN, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
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Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX KANSAS, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX ALABAMA, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX STORES CORPORATION
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
AVA ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
XXX INVESTMENT, LLC
By:
----------------------------------------
Name: Xxxxx & Xxxxx Appliances, Inc.
Title: Managing Member
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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"Lenders"
FLEET BANK, N.A.,
Individually
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: VP--Loan Officer
BANK ONE, N.A. (successor to Bank One,
Dayton, N.A.)
By:
----------------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By: /s/ R. XXXXXXX XXXXXXXX
----------------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK (as successor by merger
to National City Bank, Dayton)
By: /s/ XXXX X. XXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
THE PROVIDENT BANK
By: /s/ XXXXXX X. BRUNSWICK
----------------------------------------
Name: Xxxxxx X. Brunswick
Title: Senior Vice President
U.S. BANK (successor to Firstar Bank, N.A.)
By:
----------------------------------------
Name:
Title:
"Agent"
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FLEET BANK, N.A.,
As Agent
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: VP--Loan Officer
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