EXHIBIT 10.21
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (the "First
Amendment") is made as of this 23rd of August, 2002 by and among
Fleet Retail Finance Inc. (the "Agent"), a Delaware corporation with
its principal executive offices at 40 Broad Street, Boston, Massachusetts, for
the Revolving Credit Lenders party to the Agreement (defined below), and
The CIT Group/Business Credit, Inc. (the "Co-Agent"), a New York
corporation with offices at 5420 LBJ Freeway (Suite 200), Dallas, Texas, and
The Revolving Credit Lenders party to the Agreement, and
Hastings Entertainment, Inc. (the "Borrower"), a Texas corporation with
its principal executive offices at 3601 Plains Boulevard, Amarillo, Texas 79102
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH:
WHEREAS, on August 29, 2000, the Agent, the Co-Agent, the Revolving
Credit Lenders and the Borrower entered in a certain Loan and Security Agreement
(as amended and in effect, the "Agreement"); and
WHEREAS, the Agent, the Co-Agent, the Revolving Credit Lenders and the
Borrower desire to modify certain provisions of the Agreement as set forth
herein.
NOW, THEREFORE, it is hereby agreed among the Agent, the Co-Agent, the
Revolving Credit Lenders and the Borrower as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the
Agreement.
2. Amendments to Article 1. The provisions of Article 1 of the
Agreement are hereby amended as follows:
(a) The definition of "Base Margin Rate" is hereby
deleted in its entirety, and the following
substituted in its stead:
"BASE MARGIN RATE": That rate per annum which is the
aggregate of Base plus the Base Margin.
(b) The definition of "Libor Margin" is hereby deleted in
its entirety, and the following substituted in its
stead:
"LIBOR MARGIN": Shall mean as of the effective date
of the First Amendment, 2.0% (notwithstanding that
Average Availability requirements for another Level
may have been satisfied). Thereafter, commencing May
1, 2003, and on the first day of each calendar
quarter thereafter, the Libor Margin shall be
adjusted based upon the Borrower's aggregate daily
Average Availability for the immediately
preceding calendar quarter divided by the total
number of days in such immediately preceding calendar
quarter. Provided, however, upon the occurrence of an
Event of Default, the Libor Margin shall be
immediately increased to the percentage set forth in
Level IV below (even if the Average Availability
requirements for another Level have been met), and
interest shall be determined in the manner set forth
in Section 2-11(f).
<Table>
<Caption>
LEVEL AVERAGE AVAILABILITY LIBOR MARGIN
----- -------------------- ------------
I Greater than $50,000,000 1.75%
II Greater than $35,000,000 and less than 2.00%
or equal to $50,000,000
III Greater than $25,000,000 and less than 2.25%
or equal to $35,000,000
IV less than or equal to $25,000,000 2.50%
</Table>
(c) The definition of "Maturity Date" is hereby amended
by deleting the following therefrom:
AUGUST 29, 2003
and substituting the following in its stead:
AUGUST 29, 2005
(d) The definition of "Revolving Credit Ceiling" is
hereby deleted in its entirety, and the following
substituted in its stead:
"REVOLVING CREDIT CEILING": $80,000,000.00.
(e) The following new definitions are hereby added to the
Agreement:
(i) "BASE MARGIN": Shall mean as of the
effective date of the First
Amendment, 0.0% (notwithstanding
that Average Availability
requirements for another Level may
have been satisfied). Thereafter,
commencing May 1, 2003, and on the
first day of each calendar quarter
thereafter, the Base Margin shall
be adjusted based upon the
Borrower's aggregate daily Average
Availability for the immediately
preceding calendar quarter divided
by the total number of days in such
immediately preceding calendar
quarter. Provided, however, upon
the occurrence of an Event of
Default, the Base Margin shall be
immediately increased to the
percentage set forth in Level IV
below (even if the Average
Availability requirements for
another Level have
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been met), and interest shall be
determined in the manner set forth
in Section 2-11(f).
<Table>
<Caption>
LEVEL AVERAGE AVAILABILITY BASE MARGIN
----- -------------------- -----------
I Greater than $50,000,000 0.0%
II Greater than $35,000,000 and less than 0.0%
or equal to $50,000,000
III Greater than $25,000,000 and less than 0.25%
or equal to $35,000,000
IV less than or equal to $25,000,000 0.50%
</Table>
(ii) "FIRST AMENDMENT" Shall mean that
certain First Amendment to Loan and
Security Agreement dated August
23rd by and among the Borrower, the
Agent, and the Revolving Credit
Lenders.
3. Amendments to Article 2. The provisions of Article 2 are
hereby amended as follows:
(a) Section 2-14 of the Agreement is hereby amended by deleting
the following from the fourth (4th) line thereof:
$70,000,000.00
and substituting the following in its stead:
$80,000,000.00
(b) Section 2-15 of the Agreement is hereby amended by deleting
the following from the third (3rd) line thereof:
February 28, 2002
and substituting the following in its stead:
February 28, 2004
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4. Amendments to Exhibits.
(a) Exhibit 2:2-22 is hereby deleted in its entirety, and
is replaced by Exhibit 2:2-22 annexed hereto and
incorporated herein by reference.
(b) The remaining Exhibits to the Agreement are true and
accurate in all respects and there have been no
changes thereto from the date on which such Exhibits
were delivered to the Agent.
5. Amendment Fee. As compensation for the commitments of the
Revolving Credit Lenders to enter into this First Amendment
with the Borrower and to continue to make loans and advances
to the Borrower and as compensation for such Revolving Credit
Lenders' respective maintenance of sufficient funds available
for such purpose, such Revolving Credit Lenders have earned an
Amendment Fee (the "Amendment Fee") in the amount and which
shall be paid, in accordance with the terms and conditions of
the Amendment Fee Letter of even date herewith by and between
the Borrower and the Agent (the "Amendment Fee Letter"). The
Amendment Fee shall be deemed fully earned upon the execution
hereof and shall not be subject to refund or rebate under any
circumstances.
6. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Agreement and the other Loan
Documents remain in full force and effect. The Borrower hereby
ratifies, confirms, and reaffirms all representations,
warranties, and covenants contained therein and hereby
represents that no Events of Default exist under the Loan
Documents. The Borrower further ratifies and confirms that any
and all Collateral previously granted to the Agent for the
ratable benefit of the Revolving Credit Lenders continues to
secure the existing Liabilities as well as the Liabilities as
amended hereby, and any future Liabilities.
7. Conditions to Effectiveness. This First Amendment shall
become effective upon the satisfaction of the following
conditions precedent:
(a) This First Amendment shall have been duly executed
and delivered by each of the Borrower, the Revolving
Credit Lenders and the Agent and shall be in full
force and effect.
(b) The Borrower shall have paid to the Agent, for the
ratable benefit of the Revolving Credit Lenders, the
Amendment Fee.
(c) The Borrower shall have delivered to the Agent its
Secretary's Certificate with certified copies of (i)
Incumbency Certificate; (ii) Specimen Signatures; and
(iii) Resolutions.
(d) All proceedings in connection with the transactions
contemplated by this First Amendment and all
documents incident thereto shall be reasonably
satisfactory in substance and form to the Agent, and
the Agent shall have
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received all information and such counterpart
originals or certified or other copies of such
documents as the Agent may reasonably request.
Further, the Borrower shall have delivered to the
Agent such additional documents which the Agent may
reasonably request, including, without limitation, an
amended and restated Revolving Credit Note to reflect
the increase in the Revolving Credit Ceiling, the
Amendment Fee Letter, and a ratification by each
guarantor of their respective guaranties.
(e) The Borrower shall have paid all reasonable costs and
expenses of the Agent including, without limitation,
all attorneys' fees and expenses incurred by the
Agent in connection with the Agreement, the Loan
Documents, and the preparation, negotiation and
execution of this First Amendment.
8. Miscellaneous.
(a) This First Amendment may be executed in several
counterparts and by each party on a separate counterpart, each
of which when so executed and delivered shall be an original,
and all of which together shall constitute one instrument.
(b) This First Amendment expresses the entire
understanding of the parties with respect to the transactions
contemplated hereby. No prior negotiations or discussions
shall limit, modify, or otherwise affect the provisions hereof
(c) Any determination that any provision of this
First Amendment or any application hereof is invalid, illegal
or unenforceable in any respect and in any instance shall not
effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this First
Amendment.
(d) The Borrower shall pay on demand all costs and
expenses of the Agent, including, without limitation,
reasonable attorneys' fees in connection with the preparation,
negotiation, execution and delivery of this First Amendment.
(e) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this First Amendment
and is not relying on any representations or warranties of any
Revolving Credit Lender or the Agent or their respective
counsel in entering into this First Amendment.
(f) The Borrower acknowledges and agrees that the
Borrower does not have any claims, counterclaims, offsets, or
defenses against any Revolving Credit Lender or the Agent
directly or indirectly relating to the Borrower's relationship
with, and/or the Borrower's Liabilities, and to the extent
that the Borrower has or ever had any such claims,
counterclaims, offsets, or defenses against any of the
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Revolving Credit Lenders or the Agent, the Borrower
affirmatively WAIVES the same. The Borrower, and for its
representatives, successors and assigns, hereby RELEASES, and
forever discharges the Revolving Credit Lenders and the Agent
and their respective officers, directors, agents, servants,
attorneys, and employees, and their respective
representatives, successors and assigns, of, to, and from all
known debts, demands, actions, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims,
demands, or liabilities whatsoever, of every name and nature,
both at law and in equity through the date hereof.
[remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties have hereunto caused this First
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
HASTINGS ENTERTAINMENT, INC.
("Borrower")
By: /s/ DANNY CROW
-------------------------------------
Name: Danny Crow
------------------------------------
Title: CFO
-----------------------------------
FLEET RETAIL FINANCE INC.
("Agent")
By: /s/ TIMOTHY R. TOBIN
-------------------------------------
Name: Timothy R. Tobin
------------------------------------
Title: Director
-----------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
("Co-Agent")
By: /s/ ROBERT J. MOLLOY
-------------------------------------
Name: Robert J. Molloy
------------------------------------
Title: Vice President
-----------------------------------
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The "Revolving Credit Lenders"
FLEET RETAIL FINANCE INC.
By: /s/ TIMOTHY R. TOBIN
-------------------------------------
Name: Timothy R. Tobin
------------------------------------
Title: Director
-----------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ ROBERT J. MOLLOY
-------------------------------------
Name: Robert J. Molloy
------------------------------------
Title: Vice President
-----------------------------------
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EXHIBIT 2:2-22
REVOLVING CREDIT LENDERS' COMMITMENTS
<Table>
<Caption>
REVOLVING CREDIT REVOLVING CREDIT
REVOLVING CREDIT LENDER DOLLAR COMMITMENT COMMITMENT PERCENTAGE
- ----------------------- ----------------- ---------------------
Fleet Retail Finance Inc. $40,000,000.00 50%
The CIT Group/Business Credit, Inc. $40,000,000.00 50%
-------------- --
Totals $80,000,000.00 100.000%
============== =======
</Table>
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