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Exhibit 4.4(q)
SIXTH MODIFICATION AGREEMENT
This SIXTH MODIFICATION AGREEMENT (hereinafter called this "Agreement")
dated as of the 21st day of November, 1995, by and among PAYLESS CASHWAYS, INC.,
an Iowa corporation (hereinafter called "Borrower"), SOMERVILLE LUMBER AND
SUPPLY CO., INC., a Massachusetts corporation (hereinafter called "Somerville")
(Borrower and Somerville are hereinafter individually called a "Related Person"
and collectively sometimes called "Related Persons"), and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey corporation (hereinafter called
"Lender");
W I T N E S S E T H:
WHEREAS, Borrower has executed and delivered to Lender nine (9) certain
promissory notes dated June 20, 1989, payable to the order of Lender in the
original aggregate principal amount of $230,242,500 [including a promissory note
in the original principal amount of $57,013,750, which has been modified and
amended by (a) First Modification Agreement (hereinafter called the "First
Modification Agreement) dated October 18, 1991, by and among Related Persons,
Xxxx Home Centers, Inc., a Delaware corporation (hereinafter called "Xxxx"), and
Lender, and (b) Second Modification Agreement (hereinafter called the "Second
Modification Agreement) dated December 17, 1991, by and among Related Persons,
Xxxx and Lender] (said promissory notes are hereinafter collectively called the
"Note"), with interest and principal payable as therein provided, the
disbursement of which Note is governed by a Loan Agreement dated June 20, 1989,
by and among Related Persons and Lender (said Loan Agreement, as modified and
amended by (a) the First Modification Agreement, (b) the Second Modification
Agreement, (c) Third Modification Agreement [hereinafter called the "Third
Modification Agreement"] dated as of December 31, 1991, by and among Related
Persons, Xxxx and Lender relating to the merger of Xxxx into Borrower with
Borrower being the surviving entity, (d) Fourth Modification Agreement
[hereinafter called the "Fourth Modification Agreement"] dated as of March 8,
1993, by and among Related Persons and Lender, and (e) Fifth Modification
Agreement [hereinafter called the "Fifth Modification Agreement"] dated as of
May 25, 1995, by and among Related Persons and Lender, hereinafter called the
"Loan Agreement"), the payment of which Note is secured by the Mortgage,
reference being here made to the Mortgage and the record thereof, the Security
Documents, and all other agreements, certificates, affidavits or other documents
(other than legal opinions of Borrower's General Counsel) executed by any
Related Person or any officer of any Related Person and delivered at the Closing
being hereinafter collectively called the "Loan Documents";
WHEREAS, the Loan Agreement provides that each Related Person will
continuously maintain its existence and its right to
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do business in each state in which it owns Property together with its franchises
and trade names to the extent required by Applicable Laws;
WHEREAS, Borrower has requested that Lender consent to the merger of
Somerville, a Subsidiary of Borrower, into Borrower, with Borrower being the
surviving entity (hereinafter called the "Merger");
WHEREAS, Lender is willing to consent to the Merger on the
terms and conditions herein set forth; and
WHEREAS, Lender is the owner and holder of the Note and Somerville is
the owner of the legal and equitable title to the Somerville Property;
NOW THEREFORE, for and in consideration of the mutual covenants
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined terms used herein which are defined in the Loan Agreement as
amended hereby, and are not otherwise defined herein, shall have the same
meaning as set forth in the Loan Agreement as amended hereby.
2. Lender hereby consents to the Merger and agrees that the Merger does
not constitute a Default or Event of Default under the Loan Agreement or the
other Loan Documents.
3. Borrower hereby assumes and promises to keep and
perform all of the covenants and obligations in the Somerville
Mortgage to be performed by the Mortgagor or Grantor, as
applicable, thereunder.
4. From and after the date hereof, Lender shall not be required and
shall have no obligation to send to Somerville any notice, request, consent,
demand or other communication required or permitted under the Loan Agreement or
any other Loan Document.
5. Concurrently herewith Related Persons shall deliver, or cause to be
delivered, to Lender the following, duly executed and delivered and in form,
substance and date satisfactory to Lender:
(a) Conveyancing Deeds (hereinafter called collectively the
"Deeds") and an Assignment and Xxxx of Sale transferring all of
Somerville's right, title and interest in and to the Somerville
Property located in the States of Massachusetts, New Hampshire and
Rhode Island to Borrower together with appropriate UCC-1 Financing
Statements (herein so called) filed with the Secretaries of State of
the States of Massachusetts, New Hampshire and Rhode Island listing the
Borrower, as debtor, and Lender, as secured party.
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(b) Favorable opinions from (i) Xxxxxxxxx Xxxxxxx Xxxxxxx
Weary & Xxxxxxxx, X.X., counsel for Borrower (hereinafter called the
"Xxxxxxxxx Xxxxxxx Opinion") and (ii) Xxxxx Xxxxxx, General Counsel of
Borrower.
(c) A solvency and compliance certificate of a
representative of Borrower and Somerville acceptable to
Lender.
(d) An affidavit of a representative of Borrower
acceptable to Lender.
(e) A Notice and Agreement relating to Section 26.02
of the Texas Business and Commerce Code.
(f) A UCC-3 Financing Statement (herein so called) amending
the UCC-1 Financing Statement currently filed with the Secretary of
State of the State of Missouri listing the Borrower, as debtor, and
Lender, as secured party, to include the Somerville Property.
(g) Endorsements to the mortgagee policies of title insurance
insuring the liens of the Somerville Mortgage, to the effect that the
coverage of said title policies is in effect and unimpaired
notwithstanding the execution and delivery of the Deeds and the
consummation of the Merger, and containing such other assurances as
reasonably required by Lender.
(h) Documentation effecting the consummation of the
Merger (such documentation is hereinafter called the "Merger
Documentation").
This Agreement, together with the instruments described in clauses (a), (c),
(d), (e), (f), (g) and (h) are hereinafter collectively called the "Merger
Documents." The Merger Documents (except for the Merger Documentation) shall
hereinafter be deemed for all purposes to be "Loan Documents" as that term is
defined in the Loan Agreement.
6. Related Persons hereby represent and warrant that (a) before giving
effect to the Merger, Somerville is the sole legal and beneficial owner of the
Somerville Property; (b) after giving effect to the Merger, Borrower is the sole
legal and beneficial owner of the Somerville Property; (c) no Related Person is
in Default in the performance of any of the covenants and agreements contained
herein or in the Loan Documents; (d) no event has occurred and is continuing
which constitutes a Default; (e) each of Borrower, and, before giving effect to
the Merger, Somerville, is a corporation duly organized, validly existing and in
good standing under the laws of its state or organization, having all corporate
or partnership powers required to carry on its business and enter into and carry
out the transactions
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contemplated hereby; (f) before giving effect to the Merger, Somerville has all
requisite power and all governmental certificates of authority, licenses,
permits, qualifications and other documentation to own, lease and operate the
Somerville Property and to carry on its business as now conducted and as
contemplated to be conducted except where failure to obtain any such
governmental certificate of authority, license, permit, qualification or other
documentation would not have a Materially Adverse Effect; (g) Borrower has all
requisite power and all governmental certificates of authority, licenses,
permits, qualifications and other documentation to own, lease and operate the
Somerville Property and to carry on its business as now conducted and as
contemplated to be conducted except where failure to obtain any such
governmental certificate of authority, license, permit, qualification or other
documentation would not have a Material Adverse Effect; (h) each of Borrower
and, before giving effect to the Merger, Somerville is duly qualified, in good
standing and authorized to do business in the jurisdiction where the Somerville
Property is located; (i) each Related Person has duly taken all corporate action
necessary to authorize the execution and delivery by it of this Agreement and
the Merger Documents to which it is a party and to authorize the consummation of
the transactions contemplated thereby and the performance of its obligations
hereunder and thereunder; (j) the execution and delivery by Related Persons of
this Agreement and the Merger Documents, the performance by each of its
obligations under this Agreement and the Merger Documents, and the consummation
of the transactions contemplated by this Agreement and the Merger Documents, do
not and will not (1) conflict with any provision of (A) any applicable domestic
or foreign law, statute, decree, rule or regulation, except where failure to
comply therewith would not have a Materially Adverse Effect, (B) the articles or
certificate of incorporation, bylaws, charter or partnership agreement or
certificate of any Related Person or (C) any agreement, judgment, license, order
or permit applicable to or binding upon any Related Person, (2) result in the
acceleration of any debt owed by any Related Person, (3) result in or require
the creation of any Lien upon any assets or properties of any Related Person
except as expressly contemplated in this Agreement, the Merger Documents or the
Loan Documents, or (4) contravene, result in a breach of or constitute a default
under any mortgage, deed of trust, lease, promissory note, loan agreement or
other material contract or material agreement to which any Related Person is a
party or by which any Related Person or any of its properties may currently be
bound or affected; (k) no consent, approval, authorization or order of, and no
notice to or filing with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by any
Related Person of this Agreement or the Merger Documents or to consummate any
transactions contemplated by the Merger, this Agreement or the Merger Documents,
other than (1) the filing of the Deeds, the UCC-1 Financing Statements and the
UCC-3 Financing Statement in the appropriate locations or with the appropriate
officials and (2) the filing of the Merger Documentation in the
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locations as set forth in the Xxxxxxxxx Xxxxxxx opinion; and (l) this Agreement
and the Merger Documents are legal and binding obligations of each Related
Person which is a party hereto or thereto, enforceable in accordance with their
respective terms, except as limited by bankruptcy, insolvency or similar laws of
general application relating to the enforcement of creditors' rights. Related
Persons agree to indemnify and hold Lender harmless against any loss, claim,
damage, liability or expense (including without limitation attorneys' fees)
incurred as a result of any representation or warranty made by them herein
proving to be untrue in any material respect.
7. Related Persons, upon request from Lender, agree to execute such
other and further documents as may be reasonably necessary or appropriate to
consummate the transactions contemplated herein or in the Merger Documents or to
perfect the liens and security interests intended to secure the payment of the
Note.
8. If (a) any Related Person shall fail to keep or perform any of the
covenants or agreements contained herein or in the Merger Documents and such
failure is not remedied within the Grace Period as provided in the Loan
Agreement with respect to an Event of Default for which a Grace Period is
provided under subsection (c) of Section 7.1 of the Loan Agreement, or (b) if
any statement, representation or warranty contained herein or in the Merger
Documents (other than the Merger Documentation) shall prove to have been false
or incorrect in any material respect as of the date hereof, and the represented
or warranted state of affairs does not become true within the Grace Period as
provided in the Loan Agreement with respect to an Event of Default for which a
Grace Period is provided under subsection (d) of Section 7.1 of the Loan
Agreement, or (c) with respect to any false or incorrect statement,
misrepresentation or breach of warranty contained in the Merger Documentation
which results in the Merger being nullified or otherwise set aside, an Event of
Default shall be deemed to have occurred under the Loan Agreement and Lender
shall be entitled at its option to exercise any and all of the rights and
remedies granted pursuant to the Loan Agreement or any other Loan Document or to
which Lender may otherwise be entitled, whether at law or in equity.
9. Except as provided or contemplated herein, the terms and provisions
of the Note, the Loan Agreement and the other Loan Documents shall remain
unchanged and shall remain in full force and effect. Any modification herein of
the Loan Agreement and the other Loan Documents shall in no way affect the
security of the Security Documents and the other Loan Documents for the payment
of the Note. Related Parties hereby agree, covenant and represent that the Note,
the Loan Agreement and the other Loan Documents as modified and amended hereby
are and remain valid and that nothing herein shall affect the validity or
enforceability thereof.
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10. Related Persons hereby acknowledge that the liens and security
interests created and evidenced by the Somerville Mortgage are valid and subs
sting and further acknowledge and agree that there are no offsets, claims or
defenses to the Note, the Loan Agreement or any other Loan Documents. Related
Persons further acknowledge that they have no knowledge that there are any
defects or deficiencies with respect to the validity of the liens and security
interests created and evidenced by any of the Security Documents.
11. Contemporaneously with the execution and delivery hereof, Borrower
shall pay, or cause to be paid, all costs and expenses incident to the
preparation hereof and the consummation of the transactions specified herein,
including but not limited to legal fees and expenses of outside counsel and
title costs.
12. This Agreement may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
13. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their
successors and assigns.
14. Related Persons hereby release, remise, acquit and forever
discharge Lender, together with its employees, agents, representatives,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties"), from any and all actions and causes of action,
judgments, executions, suits, debts, claims, demands, liabilities, obligations,
damages and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter accruing, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date hereof, and in any way directly or indirectly arising out of or in any way
connected to this Agreement, the Loan Agreement, the Note, the Security
Documents, or any other document executed by Related Persons in connection with
any of the transactions associated therewith, or the Property, including
specifically but not limited to claims of usury.
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IN WITNESS WHEREOF, this Agreement is executed effective as of the date
first above written.
PAYLESS CASHWAYS, INC., an Iowa
corporation
By:
S/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Sr. Vice President-
Finance and Treasurer
SOMERVILLE LUMBER AND SUPPLY CO.,
INC., a Massachusetts corporation
By:
S/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By:
S/ Xxxxxxx X. Xxxx
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Name:
Xxxxxxx X. Xxxx
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Title:
Vice President
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