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EXHIBIT 10.1
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AND CONSENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT AND CONSENT (this "Amendment"), dated as of December 6, 2000, is
entered into between CONGRESS FINANCIAL CORPORATION (WESTERN), a California
corporation ("Lender"), on the one hand, and WHEREHOUSE ENTERTAINMENT, INC., a
Delaware corporation, WHEREHOUSE.COM, INC., a California corporation, WHEREHOUSE
SUBSIDIARY I CO., INC., a Delaware corporation, WHEREHOUSE SUBSIDIARY II CO.,
INC., a California corporation, and WHEREHOUSE SUBSIDIARY III CO., INC., a
Delaware corporation (collectively, "Borrower"), on the other.
RECITALS
A. Borrower and Lender have previously entered into an Amended
and Restated Loan and Security Agreement dated as of October 26, 1998, as
amended by a First Amendment dated as of November 30, 1998, by a Second
Amendment dated as of May 14, 1999, by a Third Amendment dated as of August 31,
1999, and by a Fourth Amendment dated as of November 16, 1999 (the "Loan
Agreement"), pursuant to which Lender has made certain loans and financial
accommodations available to Borrower. Terms used herein without definition shall
have the meanings ascribed to them in the Loan Agreement.
B. Borrower and Lender wish to amend the Loan Agreement on the
terms and conditions set forth in this Amendment. Borrower is entering into this
Amendment with the understanding and agreement that, except as specifically
provided herein, none of Lender's rights or remedies as set forth in the Loan
Agreement is being waived or modified by the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Maximum Credit. "Maximum Credit" shall mean, with reference to
the Revolving Loans and the Letter of Credit Accommodations, the amount of One
Hundred Sixty-Five Million Dollars ($165,000,000); provided, however, that on
October 27, 2001, such amount shall be permanently reduced to One Hundred
Fifty-Five Million Dollars ($155,000,000).
2. Used Inventory; Eligible Used Inventory. The term "Used
Inventory" shall mean Inventory consisting of used merchandise held for retail
sale in the ordinary course of the business of Borrower. The term "Eligible Used
Inventory" shall mean Used Inventory, consisting of audio recordings on compact
disk, that would otherwise qualify as Eligible
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Inventory, bur for the fact that such Inventory is in used condition. Any Used
Inventory that is not Eligible Used Inventory shall nevertheless be part of the
Collateral.
3. Definition of Eligible Inventory. Section 1.20, the definition
of "Eligible Inventory" is amended to read in its entirety as follows:
"1.20 "Eligible Inventory" shall mean Inventory consisting of
finished merchandise held for sale in the ordinary course of the
business of Borrower that is located at one of Borrower's retail
stores, its distribution centers in the United States, a third
party return processing facility, or in transit between any such
location of Borrower, provided that, in any case, such location
is in a jurisdiction where Lender has a first priority security
interest in the Collateral, and is acceptable to Lender based on
the criteria set forth below. In general, Eligible Inventory
shall not include (without duplication in the following
exclusions for the effect of any Availability Reserves) (a)
spare parts for equipment; (b) packaging and shipping materials;
(c) supplies used or consumed in Borrower's business; (d)
Inventory at premises that are not owned by Borrower, unless,
with respect to leased premises (other than a retail store),
Lender has received a landlord waiver and, with respect to
locations where Inventory is held by third parties, Lender has
received a bailee waiver, in each case acknowledging the
priority of Lender's liens and allowing Lender access to the
premises for purposes of dealing with the Collateral, provided
that, Borrower shall not be required to provide a landlord
waiver with respect to the distribution center subject to that
certain Transition Services Agreement dated as of August 10,
1998, until September 30, 1999; (e) Inventory in transit (other
than Inventory in transit from one location of Borrower to
another location satisfying the requirements set forth in this
Section 1.20); (f) Inventory subject to a security interest or
lien in favor of any person other than Lender except those
permitted in this Agreement; (g) Inventory that is not subject
to the first priority, valid and perfected security interest of
Lender; (h) damaged and/or defective Inventory; (i) Inventory
consisting of demos; (j) Used Inventory, other than Eligible
Used Inventory; (k) Rental Merchandise; (l) Inventory purchased
or sold on consignment; and (m) Inventory that is not actively
held by Borrower for sale to retail customers, except for WEI
Eligible Return Inventory and Operating Subsidiary Eligible
Return Inventory. General criteria for Eligible Inventory may be
established and revised from time to time by Lender in its
reasonable credit judgment. Any Inventory that is not Eligible
Inventory shall nevertheless be part of the Collateral."
4. Lending Formulas. Section 2.1(a) of the Loan Agreement is
amended to read in its entirety as follows:
"2.1 Revolving Loans.
(a) Subject to, and upon the terms and conditions contained
herein, Lender agrees to make Revolving Loans (the "Tranche A Line") to Borrower
from time to time in
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amounts requested by Borrower up to the lesser of One Hundred Fifty-five Million
Dollars ($155,000,000) or an amount equal to:
(1) The lesser of: (A) sixty-two percent (62%) (sixty-five
percent (65%) during the Seasonal Period) of the Value of Eligible Inventory,
other than Eligible Used Inventory, or (B) ninety percent (90%) of the Net
Recovery Cost Percentage multiplied by the Value of the Eligible Inventory, plus
(2) The lesser of (A) fifty percent (50%) of the Value of
Eligible Used Inventory up to a maximum of $25,000,000 (not to exceed 15% of
total Inventory), or (B) eighty-five percent (85%) of the Net Recovery Cost
Percentage multiplied by the Value of the Eligible Used Inventory, up to a
maximum of $25,000,000 (not to exceed 15% of total Inventory), minus
(3) the then undrawn amounts of outstanding Letter of
Credit Accommodations, minus
(4) any Availability Reserves.
The Revolving Loans made under Section 2.1(a) shall together be referred to as
the "Tranche A Loans".
5. Collection of Accounts. Sections 6.3(a)(i) and (ii) are amended
to read in their entirety as follows:
"(i) Borrower shall deposit all proceeds from sales of Inventory
and rentals of Rental Merchandise in every form (including,
without limitation, cash, checks, credit card sales drafts,
credit card sales or charge slip or receipts and other forms of
daily store receipts), from each retail store location of
Borrower, and all other proceeds of Collateral, on each business
day into the deposit accounts of Borrower used solely for such
purpose and identified to each retail store location as set
forth on Schedule 6.3. Borrower shall irrevocably authorize and
direct in writing, in form and substance satisfactory to Lender,
each of the banks into which proceeds from sales of Inventory
and rentals of Rental Merchandise from each retail store
location of Borrower and any and all other proceeds of
Collateral are at any time deposited as provided above to send
by wire transfer on a daily basis all funds deposited in such
account, and shall irrevocably authorize and direct in writing
its account debtors, Credit Card Issuers and Credit Card
Processors to directly remit payments on its Accounts, Credit
Card Receivables and all other payments constituting proceeds of
Inventory and rentals of Rental Merchandise to the Blocked
Accounts described in Section 6.3(a)(ii) below; provided, that
at any time when Excess Availability (which calculation, for
purposes of this clause (i), shall not include available
advances against Eligible Used Inventory) is less than or equal
to Three Million Dollars ($3,000,000) or when an Event of
Default, or an event that with notice or passage of time or both
would be an Event of Default, has occurred, Borrower shall
segregate into
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separate depository accounts any monies that are held or
received by Borrower as trust fund taxes, or for the benefit of
Ticketmaster pursuant to the Ticketmaster Agreement or for the
benefit of Bass pursuant to the Bass Agreement and shall direct
account debtors, Credit Card Issuers and Credit Card Processors
to remit payments, to the extent they constitute such trust fund
taxes or monies held for the benefit of Ticketmaster or Bass, to
such separate depository accounts. Such authorizations and
directions shall not be rescinded, revoked or modified without
the prior written consent of Lender.
(ii) Borrower shall establish and maintain, at its expense,
pursuant to an agreement described in the following sentence,
one or more blocked accounts with such bank or banks as are
acceptable to Lender (each a "Blocked Account" and collectively
the "Blocked Accounts"). Each bank at which a Blocked Account is
established shall enter into an agreement, in form and substance
satisfactory to Lender, providing (unless otherwise agreed to by
Lender) that all items received or deposited in such Blocked
Account are the Collateral of Lender, that the depository bank
has no lien upon, or right to setoff against, the Blocked
Accounts, the items received for deposit therein, or the funds
from time to time on deposit therein, other than liens or rights
of set-off with respect to returned checks and customary service
charges, and that the depository bank will wire, or otherwise
transfer, in immediately available funds, on a daily basis, all
funds received or deposited into such Blocked Account to such
bank account of Lender as Lender may from time to time designate
for such purpose (the "Payment Account"); provided, however, if
there has occurred no Event of Default or event that with notice
or passage of time or both would be an Event of Default, and, at
such time, Borrower has Excess Availability (which calculation,
for purposes of this clause (ii), shall not include available
advances against Eligible Used Inventory) of at least Fifteen
Million Dollars ($15,000,000), Borrower may receive such funds
directly from the Blocked Accounts (rather than remittance to
the Payment Account) so long as Borrower is in compliance with
the conditions of this sentence. If at any time Borrower fails
to meet the requirements of this paragraph, Lender may withdraw
its consent and take all steps in order that all funds are
immediately remitted to the Payment Account. Borrower agrees
that all amounts deposited in the Blocked Account(s) or other
funds received and collected by Lender, whether as proceeds of
Inventory, the collection of Accounts or other Collateral or
otherwise shall be the Collateral of Lender."
6. Covenant Regarding Investments. Section 9.10(f) is amended to
read in its entirety as follows:
"(f) Investments or Distributions, if the aggregate amount of
cash consideration or real and other personal property
consideration relating to Investments made pursuant to this
Section 9.10 does not (1) exceed, for the term of this Agreement
and in the aggregate, Twenty Million Dollars ($20,000,000) (the
"Investment Basket"), provided that Borrower has at the time of
such Investment or Distribution or entering into a commitment
therefor, after giving effect to such
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Investment or Distribution, Excess Availability (which
calculation, for purposes of this Section 9.10(f), shall not
include available advances against Eligible Used Inventory) of
at least Twenty Million Dollars ($20,000,000) under the Tranche
A Line, or (2) exceed, for the term of this Agreement and in the
aggregate, Fifty Million Dollars ($50,000,000) (inclusive of all
amounts expended from October 26, 1998 until December , 2000)
(the "Investment Cap"), provided that, Borrower has at the time
of such Investment or Distribution or entering into a commitment
therefor, after giving effect to such Investment or
Distribution, Excess Availability (which calculation, for
purposes of this Section 9.10(f), shall not include available
advances against Eligible Used Inventory) of at least Thirty
Million Dollars ($30,000,000) under the Tranche A Line; provided
that in the case of each of clause (1) or (2), at the time of
such Investment or Distribution, after giving effect to such
Investment or Distribution, there is no Event of Default and no
event that with notice or passage of time or both would be an
Event of Default; provided further that, with respect to an
Investment hereunder, such Investment is an Investment in a
Person with a line of business similar to Borrower's business;
provided further that, the Investment Basket shall automatically
be increased by the amount of any proceeds from the sale of
equity securities of Borrower (not to exceed the Investment
Cap);"
7. Adjusted Net Worth. Section 9.14 is amended to read in its
entirety as follows:
"9.14 Adjusted Net Worth. Borrower shall, at all times, maintain
Adjusted Net Worth of not less than Seventy-Five Million Dollars
($75,000,000), computed on a consolidated basis for all entities
comprising the Borrower, provided, this covenant shall not apply
if (a) No Event of Default has occurred and (b) during the
period when Excess Availability (which calculation, for purposes
of this Section 9.14, shall not include available advances
against Eligible Used Inventory) equals or exceeds Fifteen
Million Dollars ($15,000,000)."
8. Exhibit B -- Application of Payments. Clause (d) of Exhibit B --
Application of Payments to the Loan Agreement is amended to read in its entirety
as follows:
"(d) fourth, to the payment of the principal of the Tranche A
Loans (except as of the opening of business on the next Business
Day after a day that is the last day of any Settlement Period
during which both (i) any Tranche B Loans are outstanding and
(ii) Excess Availability (which calculation, for purposes of
this clause (d), shall not include available advances against
Eligible Used Inventory) is greater than $2,000,000 (such day
being referred to herein as a "Tranche B Repayment Date"), the
proceeds of any Tranche A Loans deemed made pursuant to Section
2.3 of the Participation Agreement for application to the
Tranche B Loans shall be so applied as provided in Section 2.3
of the Participation Agreement);"
9. Fees.
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(a) Additional Fees. Borrower shall pay the following fees in
connection with this Amendment, in addition to the fees specified in the Loan
Agreement:
(i) Amendment Closing Fee. Borrower shall pay an amendment
closing fee of $387,500, which fee shall be fully earned upon execution of this
Amendment and shall be payable one-half on October 26, 2001 and one-half on
October 31, 2002.
(ii) Syndication Fee. Borrower shall pay a syndication fee
of $112,500, which fee shall be fully earned upon execution of this Amendment
and shall be payable on October 26, 2001.
(b) Early Termination Fee. In lieu of the early termination fee
provided in Section 12.1(c) of the Loan Agreement, Borrower shall pay an early
termination fee as follows if the Loan Agreement is terminated in the periods
specified below:
<TABLE>
<CAPTION>
Amount Period
------ ------
<S> <C> <C>
(i) 0.50% of the Maximum Credit from the date of this Amendment to
and including October 26, 2001
(ii) $300,000 After October 26, 2001 to and
including October 31, 2002
(iii) $150,000 After October 31, 2002 to and
including October 31, 2003
</TABLE>
10. Amendment to Term of Loan Agreement: The Renewal Date as set
forth in Section 12.1 of the Loan Agreement shall be October 31, 2003; provided,
however, that such renewal shall not apply to the Tranche B Line, and Lender
shall not be obligated to make any Tranche B Loans on or after October 26, 2001.
11. Effectiveness of this Amendment. Lender must have received the
following items, in form and content acceptable to Lender, before this Amendment
is effective and before Lender is required to extend any credit to Borrower as
provided for by this Amendment:
(a) Amendment. This Amendment fully executed in a sufficient
number of counterparts for distribution to Lender and Borrower;
(b) Authorizations. Evidence that the execution, delivery and
performance by Borrower and each guarantor or subordinating creditor of this
Amendment and any instrument or agreement required under this Amendment have
been duly authorized;
(c) Representations and Warranties. The representations and
warranties set forth in the Loan Agreement must be true and correct;
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(d) Consents. Counterparts of the Consent appended hereto (the
"Consent") executed on behalf of each of Wherehouse Holding I Co., Inc., a
Delaware corporation and Wherehouse Holding II Co., Inc., a Delaware corporation
("Guarantors", and together with Borrower, each a "Loan Party" and collectively
the "Loan Parties");
12. Representations and Warranties. Borrower represents and warrants
as follows:
(a) Authority. Each Loan Party has the requisite corporate power
and authority to execute and deliver this Amendment or the Consent, as
applicable, and to perform its obligations hereunder and under the Financing
Agreements (as amended or modified hereby) to which it is a party. The
execution, delivery and performance by Borrower of this Amendment and by each
other Loan Party of the Consent, and the performance by each Loan Party of each
Financing Agreement (as amended or modified hereby) to which it is a party have
been duly approved by all necessary corporate action of such Loan Party and no
other corporate proceedings on the part of such Loan Party are necessary to
consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by Borrower. The Consent has been duly executed and delivered by each
Guarantor. This Amendment and each Financing Agreement (as amended or modified
hereby) is in full force and effect (subject to the terms of Section 10 hereof)
and is the legal, valid and binding obligation of each Loan Party hereto or
thereto, enforceable against such Loan Party in accordance with its terms, and
is in full force and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Financing Agreement (other than any such
representations or warranties that, by their terms, are specifically made as of
a date, or otherwise relate to a date, other than the date hereof) are correct
on and as of the date hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
constitutes an Event of Default.
(e) No Tranche B Loans. No Tranche B Loans are presently
outstanding.
13. Governing Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of California governing contracts only to be performed in that
State.
14. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment or the Consent by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment or the Consent.
15. Reference to and Effect on the Financing Agreements.
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(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Loan Agreement, and each reference in the
other Financing Agreements to "the Loan Agreement", "thereof" or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Loan Agreement and
all other Financing Agreements, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrower to
Lender.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of Lender under any of the Financing Agreements, nor
constitute a waiver of any provision of any of the Financing Agreements.
IN WITNESS WHEREOF, the parties have entered into this Amendment
as of the date first above written.
CONGRESS FINANCIAL CORPORATION
(WESTERN)
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WHEREHOUSE ENTERTAINMENT, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WHEREHOUSE.COM, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WHEREHOUSE SUBSIDIARY I CO., INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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WHEREHOUSE SUBSIDIARY II CO., INC.
By:
--------------------------------
Name:
------------------------------
Title:
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WHEREHOUSE SUBSIDIARY III CO., INC.
By:
--------------------------------
Name:
------------------------------
Title:
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CONSENT
Dated as of December ___, 2000
The undersigned, as Guarantors under their respective Guarantee,
each dated as of October 26, 1998 (as such terms are defined in and under the
Loan Agreement referred to in the foregoing Amendment), each hereby consents and
agrees to said Amendment and hereby confirms and agrees that its respective
Guarantee is, and shall continue to be in, in full force and effect and is
hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of said Amendment, each reference in
each such Guarantor's Guarantee to the "Loan Agreement", "thereunder", "thereof"
or words of like import referring to the Loan Agreement, shall mean and be a
reference to the Loan Agreement as amended or modified by the said Amendment.
WHEREHOUSE HOLDING I CO., INC.
By:
--------------------------------
Name:
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Title:
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WHEREHOUSE HOLDING II CO., INC.
By:
--------------------------------
Name:
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Title:
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