EXHIBIT NUMBER 10.47
FIRST AMENDMENT AND WAIVER TO POSTPETITION
CREDIT AGREEMENT AND POSTPETITION SECURITY AGREEMENT
THIS FIRST AMENDMENT AND WAIVER, dated as of October 7, 1997 (this
"Amendment") to the POSTPETITION CREDIT AGREEMENT and the POSTPETITION SECURITY
AGREEMENT, each dated as of September 5, 1997 (the "Credit Agreement" and the
"Security Agreement," respectively), is among XXXXXX FURNITURE INCORPORATED, a
Delaware corporation and a debtor and debtor in possession ("LFI"), XXXXXX
FURNITURE COMPANY, a Florida corporation and a debtor and debtor in possession
("LFC"), XXXXXX FURNITURE REALTY CORPORATION, a Florida corporation and a debtor
and debtor in possession ("LFR"), XXXXXX SHOPPING SERVICE, INC., a Florida
corporation and a debtor and debtor in possession ("LSS"), XXXXXX FURNITURE
COMPANY OF THE MIDWEST, INC., a Colorado corporation and a debtor and debtor in
possession ("LFC Midwest"), XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a
California corporation and a debtor and debtor in possession ("LFC Pacific"),
XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a Washington corporation and a
debtor and debtor in possession ("LFC Washington") XXXXXX FURNITURE COMPANY OF
THE MIDWEST REALTY, INC., a Colorado corporation and a debtor and debtor in
possession ("LFC Midwest Realty"), XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation and a debtor and a debtor in possession
("LFC Pacific Realty"), XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY, INC., a
Washington corporation and debtor and a debtor in possession ("LFC Washington
Realty"), XXXX X. XXXXX COMPANY, an Illinois corporation and a debtor and debtor
in possession ("JMS") and XXXX X. XXXXX REALTY COMPANY, an Illinois corporation
and a debtor and debtor in possession ("JMS Realty") (LFI, LFC, LFR, LSS, LFC
Midwest, LFC Pacific, LFC Washington, LFC Midwest Realty, LFC Pacific Realty,
LFC Washington Realty, JMS and JMS Realty sometimes hereinafter individually
called a "Borrower" and collectively called the "Borrowers"); each Revolving
Lender and Term Lender signatories hereto (collectively the "Lenders"), and BT
COMMERCIAL CORPORATION, a Delaware corporation (in its individual capacity,
hereinafter called "BTCC"), acting in its capacity as agent for the Lenders (in
such capacity, together with its successors in such capacity, hereinafter called
the "Agent"). Capitalized terms used in this Amendment and not otherwise defined
have the meanings assigned such terms in the Credit Agreement and the Security
Agreement.
PRELIMINARY STATEMENTS:
A. The Borrowers and the Lenders are parties to the Credit Agreement.
B. The Borrowers and BTCC are parties to the Security Agreement.
C. The Borrowers have requested the Lenders and the Agent to amend and
to waive the Credit Agreement and the Security Agreement in certain respects.
D. The Lenders and the Agent have agreed to amend and to waive the
Credit Agreement and the Security Agreement as requested on the terms and
conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Amendment, the Borrowers, the Lenders and the Agent
hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 Section 7.15 of the Credit Agreement is hereby amended by deleting
the term "no fewer than 20 of the store locations" and replacing such term with
the term "no fewer than 18 of the store locations".
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1.2 Section 8.1 of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it as follows:
8.1 Minimum EBITDA. At the end of each period beginning on the
Petition Date and ending on the last day of each month set forth below, EBITDA
for such period shall be an amount not less than the following:
PERIOD FROM PETITION
DATE TO END OF AMOUNT
------------------------------- -------------
October 1997 $(12,400,000)
November 1997 (8,000,000)
December 1997 (4,500,000)
January 1998 (2,900,000)
February 1998 (2,100,000)
March 1998 (100,000)
1.3 Section 8.6 of the Credit Agreement is hereby amended by deleting
subsections (iv) and (v) in their entirety, respectively, and replacing such
subsections as follows:
(iv) sales or other dispositions of Inventory sold or
transferred outside of the ordinary course of business for cash or Cash
Equivalents and for not less than the fair market value so long as such sale or
disposition is approved by the Bankruptcy Court, (v) obsolete or worn out
property disposed of in the ordinary course of business and (vi) to any
Borrower.
1.4 Section 9.2 of the Credit Agreement is hereby amended by deleting
the terms "four (4) Business Days'" and "four (4) business days" in subsection
(b) and (d), respectively, thereof and replacing such terms with the term "five
(5) Business Days'".
2. AMENDMENT TO SECURITY AGREEMENT.
2.1 Section 2(J) of the Security Agreement is hereby amended by
deleting the term ",including without limitation all causes of action of the
Grantors pursuant to the Bankruptcy Code".
3. WAIVER TO CREDIT AGREEMENT.
3.1 Authority. To the extent that the granting of a security interest
in the Borrowers' leasehold properties in favor of the Collateral Agent pursuant
to (I) any Credit Document or (ii) the Permanent Financing Order results in the
breach or termination of, or constitutes a default under any of the Borrowers'
real property leases under Section 6.2(v) of the Credit Agreement, each of the
Lenders waives any Event of Default that may arise under Section 9.2(c) of the
Credit Agreement as a result of such breach, termination or default.
4. CONDITIONS PRECEDENT.
This Amendment shall become effective upon satisfaction of each of the
following conditions:
(a) The Agent shall have received ten (10) copies of this
Amendment, duly executed by the LFC Funds Administrator, each of the
Borrowers, and each of the Lenders.
(b) The Bankruptcy Court shall have entered an order in form
and substance satisfactory to the Agent authorizing the LFC Funds
Administrator and the Borrowers to enter into this Amendment. Such
order shall be in full force and effect and shall not have been
vacated, reversed, modified or stayed in any respect and, if such order
is the
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subject of any pending appeal, no performance of any obligation of any
party hereto shall have been stayed pending such appeal.
5. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers hereby represents and warrants to each of the
Agents and Lenders that, after giving effect to this Amendment:
(a) all representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on and as of the date of this Amendment, in each case
as if then made, other than representations and warranties that
expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such
earlier date);
(b) no Default or Event or Default has occurred which has not
been waived (or, in the case of an Event of Default, cured) pursuant to
the terms of the Credit Agreement;
(c) this Amendment, and the Credit Agreement as amended
hereby, constitute legal, valid and binding obligations of the LFC
Funds Administrator and each of the Borrowers and are enforceable
against such Persons in accordance with their respective terms; and
(d) the execution and delivery by the LFC Funds Administrator
and each of the Borrowers of this Amendment does not require the
consent or approval of any Person other than the Bankruptcy Court,
except such consents and approvals as shall have been obtained.
6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
6.1 Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import, and each reference in each of the other Credit Documents to the
"Credit Agreement" shall mean and be a reference to the Credit Agreement as
amended hereby.
6.2 Except as expressly set forth herein, (i) the execution and
delivery of this Amendment shall in no way affect any of the respective rights,
powers or remedies of the Agent or any of the Lenders with respect to any Event
of Default nor constitute a waiver of any provision of the Credit Agreement or
any of the other Credit Documents and (ii) all of the terms and conditions of
the Credit Agreement, the other Credit Documents and all other documents,
instruments, amendments and agreements executed and/or delivered by the
Borrowers and/or the LFC Funds Administrator pursuant thereto or in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed in all respects. The execution and delivery of this Amendment by the
Agent and each of the Lenders shall in no way obligate the Agent or any of the
Lenders at any time hereafter to consent to any other amendment or modification
of any term or provision of the Credit Agreement or any of the other Credit
Documents, whether of a similar or different nature.
7. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND
DECISIONS OF THE STATE OF NEW YORK.
8. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
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9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their duly authorized officers as of the date
first set forth above.
LFC FUNDS ADMINISTRATOR:
XXXXXX FURNITURE CORPORATION, a
Florida corporation, in its capacity as
LFC Funds Administrator
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
BORROWERS:
XXXXXX FURNITURE CORPORATION, a
Florida corporation, in its individual
capacity and in its capacity as the
LFC Funds Administrator
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE INCORPORATED, a
Delaware corporation
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE REALTY CORPORATION,
a Florida corporation
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX SHOPPING SERVICE, INC., a
Florida corporation
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
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XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
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XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
XXXX X. XXXXX REALTY COMPANY, an
Illinois corporation
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXX
Title: TREASURER
AGENT:
BT COMMERCIAL CORPORATION, in its
capacity as Agent
By: /S/ XXXXX XXXXX
------------------------------------
Name: XXXXX XXXXX
Title: VICE PRESIDENT
REVOLVING LENDERS:
BT COMMERCIAL CORPORATION, a Delaware
corporation in its respective capacities
as Revolving Lender and Collateral Agent
By: /S/ XXXXX XXXXX
------------------------------------
Name: XXXXX XXXXX
Title: VICE PRESIDENT
CARGILL FINANCIAL SERVICES CORPORATION,
in its capacity as Revolving Lender
By: /S/ XXXXXXX X. XXX
-----------------------------------
Name: XXXXXXX X. XXX
Title: SENIOR VICE PRESIDENT
FINOVA CAPITAL CORPORATION, it its
capacity as Revolving Lender
By: /S/ XXXX XXXXXXXX
-----------------------------------
Name: XXXX XXXXXXXX
Title: VICE PRESIDENT
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XXXXXX FINANCIAL, INC., in its capacity
as Revolving Lender
By: /S/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: VICE PRESIDENT
LASALLE NATIONAL BANK, in its capacity
as Revolving Lender
By: /S/ XXXXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: XXXXXXXXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT
CONGRESS FINANCIAL CORPORATION
(CENTRAL), in its capacity as Revolving
Lender
By: /S/ XXXXXXX X. XXXXX
-----------------------------------
Name: XXXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT
TRANSAMERICA BUSINESS CREDIT
CORPORATION, in its capacity as
Revolving Lender
By: /S/ XXXXXX X. XXXXXXXXX
-----------------------------------
Name: XXXXXX X. XXXXXXXXX
Title: SENIOR ACCOUNT EXECUTIVE
SILVER OAK CAPITAL L.L.C., in its
capacity as Revolving Lender
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: AUTHORIZED SIGNATURE
TERM LENDER:
SILVER OAK CAPITAL L.L.C., in its
capacity as Revolving Lender
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: XXXXXXX X. XXXXXXX
Title: AUTHORIZED SIGNATURE
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