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SECOND AMENDMENT TO AMENDED AND RESTATED
TERM LOAN AGREEMENT AND OTHER
RESTRUCTURED LOAN DOCUMENTS
This Second Amendment to Amended and Restated Term Loan
Agreement and other Restructured Loan Documents ("Second Amendment") is made and
dated as of December 1, 1995, by and among BROADWAY STORES, INC., formerly known
as CARTER HAWLEY HALE STORES, INC., a Delaware corporation (the "Company" or
"CHH"), BARCLAYS BANK PLC, a bank organized under the laws of the United
Kingdom, THE TOKAI BANK LIMITED, a bank organized under the laws of Japan,
acting through its Los Angeles Agency, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association (collectively, "Banks," and
individually, a "Bank"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association, as agent for Banks (in such
capacity, "Agent").
RECITALS
A. Company, Banks and Agent are parties to that certain
Amended and Restated Term Loan Agreement, dated as of October 8, 1992, as
amended by that certain First Amendment to Amended and Restated Term Loan
Agreement and other Restructured Loan Documents, dated as of October 11, 1995
(the "Amended and Restated Term Loan Agreement"). Capitalized terms used herein
without definition have the meanings given to them in the Amended and Restated
Term Loan Agreement.
B. The Company, Agent and Banks desire to enter into this
Second Amendment in order to modify the Amended and Restated Term Loan Agreement
in certain respects.
NOW THEREFORE, in consideration of the foregoing recitals and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
AMENDMENTS TO AMENDED AND RESTATED TERM LOAN AGREEMENT
Effective upon the date hereof, Company, Agent and Banks
hereby amend the Amended and Restated Term Loan Agreement as follows:
I.1 Definitions. All references in the Amended and Restated
Term Loan Agreement and in the Restructured Loan Documents to the Amended and
Restated Term Loan
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Agreement or to any Restructured Loan Documents shall mean the Amended and
Restated Term Loan Agreement and such Restructured Loan Documents, in each case
as modified pursuant to this Second Amendment.
1.2 Amended Provisions Regarding Release of Stores. Section
3.02A of the Amended and Restated Term Loan Agreement is hereby amended and
restated as follows:
"Section 3.02 Release and Nondisturbance Provisions.
A. Release of Stores. In the event CHH
desires the release of a Store from the liens and security
interests created by the applicable Security Documents, CHH
shall deliver to Agent a release notice, which release notice
shall identify with particularity the Store proposed to be
released and shall certify as to the satisfaction of any and
all conditions to such proposed release hereunder. Provided
that the conditions set forth below are satisfied, Agent
shall, on behalf of Agent and Banks, execute and deliver to
CHH, within forty-five (45) days after receipt of the release
notice (or as soon thereafter as practical following
satisfaction of such conditions), an appropriate document
releasing or reconveying, without recourse and without any
warranty, express or implied, Agent's and Banks' interest in
such Store from the liens and security interests created under
the applicable Security Documents, upon payment by CHH to
Agent (for the ratable benefit of Agent and Banks) of the sum
of (1) a release price, which shall constitute a prepayment
hereunder subject to Section 2.07, equal to 110% of the pro
rata portion of the Amended and Restated Term Loan allocable
to such Store, as described on Schedule 7 hereto (the
"Allocable Loan Amount") plus (2) all accrued and unpaid
interest due to the date of such release on the release price
described in clause (1), plus (3) any breakage costs and other
amounts described in Section 2.06 of this Agreement which are
applicable to a prepayment in the amount of the release price
being paid, plus (4) all other amounts, if any, then due and
payable to Agent and Banks under the Restructured Loan
Documents, including, without limitation, late payment
charges, amounts advanced by Agent and/or Banks in accordance
with the terms of the Restructured Loan Documents to cure any
defaults under the Restructured Loan Documents, expenses of
Agent and/or Banks required to be reimbursed thereunder, and
any additional interest accrued to and including the date of
such release by reason of the applicability of a default rate
of interest. Notwithstanding anything to the contrary
contained in the Agreement, (a) no release of any Store shall
be permitted if a Default or an Event of Default exists
hereunder; and (b) at the option of Agent and Majority Banks,
as a condition to any release, Title Insurer (as hereinafter
defined) must, at CHH's cost and expense, issue an endorsement
to the Mortgagee's Title Policies (as hereinafter defined)
satisfactory to Agent and Majority Banks, insuring that the
release will not affect the priority of the Banks' liens on
any unreleased Collateral. In connection with any such
release, and as a condition thereto, CHH shall execute and
deliver to Agent (for the ratable benefit of Agent and Banks)
such modifications and supplements to the Restructured
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Loan Documents and all other documents deemed necessary or
appropriate by Agent and Majority Banks to ensure the
continued effectiveness, validity, priority and enforceability
of their liens, security interests and other rights under the
Restructured Loan Documents following such release. CHH shall
reimburse Agent and Banks for all reasonable direct
out-of-pocket costs and expenses (including, without
limitation, attorneys' fees and costs, including the allocable
costs of in-house counsel and legal staff) which Agent or any
Bank may incur in connection with any release hereunder. Any
Store which, in accordance with the provisions of this Section
3.02A, is released from the lien and security interests
created by the applicable Security Documents, shall no longer
be considered to be a "Store" for any purpose hereunder. The
term "Core Stores" or "Core Store" as used in the amended and
restated Term Loan Agreement or in the other Restructured Loan
Documents shall mean all or any portion of the Stores which
are described on Schedule 8 attached hereto."
1.3 Amended Provisions Regarding Cure
Rights. Clause C of Section 9.13 of the Amended and Restated Term Loan Agreement
is hereby amended by replacing the following phrase in the second sentence
thereof (i.e., the sentence which begins with the words, "Notwithstanding the
foregoing,"): "in the case of any Store which is not a Core Store", with the
following: "in the case of any Store".
ARTICLE II
AMENDMENTS TO OTHER RESTRUCTURED LOAN DOCUMENTS
Effective upon the date hereof, Company, Agent and Banks
hereby amend the other Restructured Loan Documents as follows:
2.1 Amendments to Security Documents.
(a) Each of the Mortgages is amended as follows: The
second sentence of Section 2.03 of each of the Mortgages is hereby amended by
replacing the following phrase: "in the case of any Store which is not a Core
Store", with the following: "in the case of any Store".
(b) Each of the Assignments of Leases is amended as
follows: The second sentence of Section 7(c) of each of the Assignments of
Leases is hereby amended by deleting the following phrase therefrom: "in the
event that the store located on the Property is not a Core Store".
(c) Each of the Assignments of Warranties is amended
as follows: The second sentence of Section 6(iii) of each of the Assignments of
Warranties is hereby amended by deleting the following phrase therefrom: "in the
event that the Store comprising part of the Property is not a Core Store (as
defined in the Loan Agreement)".
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce Agent and Banks to enter into this Second
Amendment, Company hereby represents and warrants to Agent and Banks as of the
date hereof as follows:
3.1 Authorization. The execution, delivery and performance of
this Second Amendment have been duly authorized by all necessary action of
Company.
3.2 No Conflict. The execution, delivery and performance by
company of this Second Amendment do not and will not (a) violate any Legal
Requirements applicable to Company or its organizational documents, (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation or indebtedness of the Company,
or (c) result in or require the creation or imposition of any lien upon any of
the properties of Company other than those created or permitted by the
Restructured Loan Documents, as amended pursuant hereto.
3.3 Consents. The execution, delivery and performance by
Company of this Second Amendment do not and will not require any registration
with, consent or approval of, or notice to, or other action by, any governmental
authority, or any trustee or holder of any indebtedness or obligation of Company
or other Person, or if required, such registration has been made, such consent
or approval given, such notice given or such other appropriate action taken, and
certified copies of the same have been delivered to Agent.
3.4 Binding Obligation. This Second Amendment is the legal,
valid and binding obligation of Company, enforceable against it in accordance
with its terms.
3.5 Representations and Warranties in Loan Documents. The
representations and warranties of Company contained in the Restructured Loan
Documents, as amended pursuant hereto, are true and correct on and as of the
date hereof as though made on and as of the date hereof, and no Default or Event
of Default has occurred and is continuing as of the date hereof or has resulted
or will result herefrom.
3.6 No Offset. Company has no claims, offsets or defenses with
respect to the payment of any sums or performance of any obligations due under
the Restructured Loan Documents.
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ARTICLE IV
MISCELLANEOUS
4.1 Ratification of Loan Documents. Except as expressly
amended or terminated hereby or pursuant hereto, the Amended and Restated Term
Loan Agreement and the other Restructured Loan Documents shall remain in full
force and effect accordance with their terms, and hereby in all respects
ratified and confirmed. Nothing in this Second Amendment shall impair the first
priority liens of the Mortgages on any unreleased collateral. Agent and Banks
hereby reserve all rights provided under the Restructured Loan Documents, as
amended hereby, with respect to any existing Defaults or Events of Default, if
any. The Company affirms and agrees that the Security Documents, as amended
hereby, secure the full performance of each and every obligation under the
Master Principal Note, the Master Capitalized Interest Note, the Amended and
Restated Term Loan Agreement and the Obligations as defined therein, and that
the Security Documents continue to be effective as, and to constitute, first and
prior liens and charges on the Stores to the full extent of all obligations
secured thereby.
4.2 Waiver of One Form of Action and Anti-Deficiency Rules. In
consideration of the Agent's and Banks' entering into this Second Amendment, the
Company hereby expressly and irrevocably waives all rights, privileges, benefits
and defenses that the Company may have under, arising out of, or based on
California Code of Civil Procedure Sections 580a, 580d and 726. Without limiting
the foregoing, the company agrees not to plead or assert California Code of
Civil Procedure Section 580a, 580d or 726 as an affirmative claim or a defense
to, or in connection with, any action or other proceeding (including, but not
limited to, any judicial or nonjudicial foreclosure under any of the Mortgages).
The company hereby represents, warrants, and acknowledges that (a) the
modifications of the Amended and restated Term Loan herein constitute a revision
or modification and do not constitute a renewal of the Amended and restated Term
Loan; and (b) the Agent and banks are relying upon such waivers and the
foregoing representations, warranties and acknowledgments in entering into this
Second Amendment, and without such waivers, representations, warranties and
acknowledgments, the Agent and Banks would not do so.
4.3 Counterparts. This Second Amendment may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, and all such counterparts together
shall constitute but one and the same.
4.4 Fees and Expenses. Whether or not the transactions
contemplated hereby are consummated, Company shall pay promptly upon demand all
reasonable fees, expenses and disbursements of counsel (including reasonably
allocated costs of in-house counsel), and other out-of-pocket costs incurred by
the Agent and any Bank in connection with the negotiation, documentation and
closing of the transactions contemplated hereby.
4.5 Integration. The Restructured Loan Documents, including
this Second Amendment: (a) integrate all the terms and conditions mentioned in
or incidental to the Restructured Loan Documents, (b) supersede all oral
negotiations and prior and other writings
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with respect to their subject matter, and (c) are intended by the parties as the
final expression of their agreement with respect to the terms and conditions set
forth in the Restructured Loan Documents and as the complete and exclusive
statement of the terms agreed to by the parties. If there is any conflict
between the terms, conditions and provisions of this Second Amendment and those
of any other Restructured Loan Documents, the terms, conditions and provisions
of this Second Amendment shall prevail.
4.6 Separability. If any court of competent jurisdiction
determines any provision of this Second Amendment or any of the other
Restructured Loan Documents to be invalid, illegal or unenforceable, that
portion shall be deemed severed from the rest, which shall remain in full force
and effect as though the invalid, illegal or unenforceable portion had never
been a part of the Restructured Loan Documents. This Second Amendment shall be
governed by California law. This Second Amendment is a Restructured Loan
Document.
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WITNESS the due execution of this Second Amendment by the
respective duly authorized officers of the undersigned as of the date first
written above.
Company/CHH: BROADWAY STORES, INC. (formerly
known as CARTER HAWLEY HALE STORES,
INC.), a Delaware corporation
By: /s/ Karen Hoguet
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Name: Karen M. Hoguet
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Title: Vice President & Treasurer
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Agent and Banks: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national
banking association, as Agent
By: /s/ Charles D. Graber
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Name: Charles D. Graber
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national
banking association, as a Bank
By: /s/ Clara Y. Strand
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Name: Clara Y. Strand
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Title: Vice President
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BARCLAYS BANK PLC, as a Bank
By: /s/ Diane R. Vargas
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Name: Diane R. Vargas
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Title: Vice President
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THE TOKAI BANK LIMITED, as a Bank
By: /s/ Masahiko Saito
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Name: MASAHIKO SAITO
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Title: Assistant General Manager
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