EXHIBIT NUMBER 10.41
CONSENT, WAIVER AND AMENDMENT NO. 4
TO
CREDIT AGREEMENT
THIS CONSENT, WAIVER AND AMENDMENT NO. 4 TO CREDIT AGREEMENTS
("Amendment") is dated as of June 30, 1997, by and among XXXXXX FURNITURE
CORPORATION, a Florida corporation ("LFC"), XXXXXX FURNITURE COMPANY OF THE
MIDWEST, INC., a Colorado corporation ("LFC Midwest"), XXXXXX FURNITURE COMPANY
OF THE PACIFIC, INC., a California corporation ("LFC Pacific"), XXXXXX FURNITURE
COMPANY OF WASHINGTON, INC., a Washington corporation ("LFC Washington") and
XXXX X. XXXXX COMPANY, an Illinois corporation ("Xxxxx") (LFC, LFC Midwest, LFC
Pacific, LFC Washington and Xxxxx sometimes hereinafter referred to individually
as a "Borrower" and collectively as the "Borrowers"); LFC, acting in its
capacity as borrowing agent for the Borrowers (LFC, in such capacity, the "LFC
Funds Administrator"); BT COMMERCIAL CORPORATION, a Delaware corporation (in its
individual capacity, hereinafter referred to as "BTCC"), acting in its capacity
as agent (in such capacity, hereinafter referred to as the "Tranche A Agent")
under the "Tranche A Credit Agreement" (as hereinafter defined); BTCC, acting in
its capacity as agent (in such capacity, hereinafter referred to as the "Tranche
B Agent") under the "Tranche B Credit Agreement" (as hereinafter defined); and
each of the Lenders under and as defined in the Tranche A Credit Agreement
(hereinafter referred to as the "Tranche A Lenders") and the "Tranche B Lenders"
(as defined in the Tranche A Credit Agreement). Capitalized terms used herein
but not otherwise defined herein shall have the respective meanings assigned to
such terms in the Tranche A Credit Agreement.
WITNESSETH:
WHEREAS, Borrowers, the Tranche A Agent and the Tranche A Lenders have
entered into that certain Credit Agreement dated as of July 1, 1996, as amended
(the "Tranche A Credit Agreement"), pursuant to which the Tranche A Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of Borrowers;
WHEREAS, Borrowers, the Tranche B Agent and the Tranche B Lenders have
entered into that certain Credit Agreement dated as of July 1, 1996, as amended
(the "Tranche B Credit Agreement"), pursuant to which the Tranche B Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of Borrowers.
WHEREAS, the Tranche A Agent and the Tranche B Agent (sometimes
hereinafter referred to collectively as the "Agents") and the Tranche A Lenders
and the Tranche B Lenders (sometimes hereinafter referred to collectively as the
"Lenders") have agreed to waive certain requirements set forth in, and amend
certain provisions of, the respective Credit Agreements, in each case on the
terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. CONSENTS AND WAIVERS. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in Section 3 below, and in
reliance upon the representations and warranties of Borrowers set forth herein:
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1.1 Agent and the Majority Lenders hereby consent to amendment of the
GECC Account Purchase Agreement pursuant to an amendment substantially in the
form attached hereto as Exhibit A.
1.2 Agent and the Majority Lenders hereby waive the Events of Default
arising under Section 7.1(b) of the Credit Agreement as a result of:
(a) Borrower's failure to deliver to each Lender not later than
ninety (90) days after the end of the fiscal year of the Consolidated
Entity ended as of March 31, 1997, the Financial Statements and other
items required to be so delivered pursuant to Section 7.1(b) for such
fiscal year, provided that all of such Financial Statements and other
items shall be delivered to each Lender no later than one hundred twenty
(120) days after the end of such fiscal year; and
(b) Borrower's failure to deliver an unqualified opinion of the
Auditor with respect to the audited consolidated Financial Statements of
the Consolidated Entity for the fiscal year ended March 31, 1997,
provided that in any event such opinion shall be subject only to a "going
concern" qualification.
2. AMENDMENT TO CREDIT AGREEMENTS. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in Section 3 below, and in
reliance upon the representations and warranties of Borrowers set forth herein,
each of the Credit Agreements is hereby amended as follows:
2.1 SECTION 8.1 of each of the Credit Agreements is hereby deleted in its
entirety and the following language is hereby substituted therefor:
8.1 INTEREST COVERAGE.
The Borrowers shall not permit the ratio of EBITDA to Interest Expense,
in each case of the Consolidated Entity as the end of any period described
below; to be less than the ratio set forth opposite such period:
PERIOD RATIO
------ -----
For each twelve month period ending as of the
end of each fiscal quarter during the period
commencing October 1, 1996 through and
including March 31, 1997 1.00 to 1.00
For the twelve month period ending as of June
30, 1997 0.94 to 1.00
For each twelve month period ending as of the
end of each fiscal quarter during the period
commencing July 1, 1997 through and including
June 30, 1998 1.00 to 1.00
For each twelve month period ending as of the
end of each fiscal quarter during the period
commencing July 1, 1998 through and including
December 31, 1998 1.20 to 1.00
For each twelve month period ending as of the
end of each fiscal quarter thereafter until the
fifth anniversary of the Closing Date 1.40 to 1.00
2.2 Clause (f) of Section 8.3 of each of the Credit Agreements is
hereby deleted in its entirety and the following language is hereby
substituted therefor:
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(f) indebtedness and other obligations under the GECC Account
Purchase Agreement, without giving effect to any amendments or
modifications or restatements thereof, or supplements thereto, except for
any of the foregoing consented to in writing by the Majority Lenders
pursuant to Section 8.14;
3. CONDITIONS PRESENT. This Amendment shall become effective as of the
date hereof, upon satisfaction of each of the following conditions:
(a) Agents shall have received twelve (12) copies of this
Amendment, duly executed by the LFC Funds Administrator, each of the
Borrowers and the Majority Lenders.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1 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 each of the
Credit Agreements and the other Transaction 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 of Default has occurred which has not been
waived (or, in the case of an Event of Default, cured) pursuant to the
respective terms of the Credit Agreements;
(c) this Amendment, and each of the Credit Agreements 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, except such consents and approvals as shall have
been obtained.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENTS AND THE OTHER
TRANSACTION DOCUMENTS.
5.1 Upon the effectiveness of this Amendment, each reference in
each of the Credit Agreements to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in each of the other
Transaction Documents to the "Credit Agreement", the "Tranche A Credit
Agreement" and/or the "Tranche B Credit Agreement" shall in each case mean and
be a reference to the respective Credit Agreements as amended hereby.
5.2 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 either of the Agents or any of the Lenders with respect to
any Default or Event of Default nor constitute a waiver of any provision of
either of the Credit Agreements or any of the other Transaction Documents and
(ii) all of the respective terms and conditions of the Credits Agreement, the
other Transaction 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 Agents and each of the Lenders
shall in no way obligate the Agents or any of the Lenders, at any time
hereafter, to consent to any other amendment or
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modification of any term or provision of the Credit Agreements or any of the
other Transaction Documents, whether of a similar or different nature.
6. 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.
7. 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.
8. 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.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and 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/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: VICE PRESIDENT
-------------------------------
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AGENTS:
BT COMMERCIAL CORPORATION, in its
respective capacities as Tranche A
Agent and Tranche B Agent
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
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LENDERS:
BT COMMERCIAL CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ XXXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
-------------------------------
Title: VICE PRESIDENT
-------------------------------
LASALLE NATIONAL BANK
By: /s/ XXXXXXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
-------------------------------
Title: SENIOR VICE PRESIDENT
-------------------------------
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By:
------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
------------------------------------
Name:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
------------------------------------
Name:
Title:
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FINOVA CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
SILVER OAK CAPITAL L.L.C.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title:
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EXHIBIT A
TO
CONSENT, WAIVER AND AMENDMENT NO. 4
TO CREDIT AGREEMENTS
DATED AS OF JUNE 31, 1997
FORM OF AMENDMENT TO GECC ACCOUNT PURCHASE AGREEMENT
Attached
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