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Exhibit 10.A
NINTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment ("Amendment") is made as of the 1st day of May 2000, by and
between DMI FURNITURE, INC., a Delaware corporation (the "Company") and BANK
ONE, INDIANA, N.A. (the "Bank").
WHEREAS, the Company and the Bank entered into Amended and Restated Credit
Agreement dated October 3, 1997, as amended from time to time, (collectively,
the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below:
NOW, THEREFORE, the parties hereto agree as follows:
1. Capitalized terms not defined herein shall have the meaning ascribed in
the Agreement.
2. The following new definition is added to Section 1.01 of the Agreement
as follows:
"Ninth Amendment" means the Ninth Amendment to Amended and Restated
Agreement, dated as of the 1st day of May 2001, executed by the
Company and the Bank.
3. Section 6.02(b)(8) and 6.02(m) of the Agreement are hereby amended and
restated in their entireties to read as follows:
(8) purchase money liens on inventory being imported by the Company,
securing the Company's obligation under commercial letters of
credit issued by National City Bank, Louisville, Kentucky, for
the account of the Company in an aggregate amount not to exceed
$2,500,000.00 at any one time outstanding.
(m) ADDITIONAL DEBT. The Company shall not create, incur, assume or
suffer to exist any Debt or liability on account of deposits or
advances or for borrowed money or the deferred purchase price of
any property or services or for Capital Lease obligations, except
those disclosed on the Schedule of Exception, and except for
Company's obligations under commercial letters of credit issued
by National City Bank, Louisville, Kentucky, for the account of
the Company to support inventory being imported by the Company in
an aggregate amount not to exceed $2,500,000.00 at any one time
outstanding.
4. The Company represents and warrants that (a) the representations and
warranties contained in the Agreement are true and correct in all material
respects as of the date of this Amendment, (b) no condition, act or event which
could constitute an Event of Default under the Agreement exists, and (c) no
condition, event, act or omission has occurred, which, with the giving of notice
or passage of time, would constitute an Event of Default under the Agreement.
5. The Company agrees to pay all fees and out-of-pocket disbursements
incurred by the Bank in connection with this Amendment, including legal fees
incurred by the Bank in the preparation, consummation, administration and
enforcement of this Amendment.
6. This Amendment shall become effective only after it is fully executed by
the Company and the Bank and the Bank shall have received from the Company the
following documents:
(a) Ninth Amendment to Amended and Restated Credit Agreement;
Except as amended by this Amendment, the Agreement shall remain in full force
and effect in accordance with its terms.
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7. This Amendment is a modification only and not a novation. Except for the
above-quoted modifications, the Agreement, any agreement or security document,
and all the terms and conditions thereof, shall be and remain in full force and
effect with the changes herein deemed to be incorporated therein. This Amendment
is to be considered attached to the Agreement and made a part thereof. This
Amendment shall not release or affect the liability of any guarantor, surety or
endorser of the Agreement or release any owner of collateral securing the
Agreement. The validity, priority and enforceability of the Agreement shall not
be impaired hereby. To the extent that any provision of this Amendment conflicts
with any term or condition set forth in the Agreement, or any agreement or
security document executed in conjunction therewith, the provisions of this
Amendment shall supersede and control. Company acknowledges that as of the date
of this Amendment it has no offsets with respect to all amounts owed by Company
to Bank and Company waives and releases all claims which it may have against
Bank arising under the Agreement on or prior to the date of this Amendment.
8. The Company acknowledges and agrees that this Amendment is limited to the
terms outlined above, and shall not be construed as an amendment of any other
terms or provisions of the Agreement; The Company hereby specifically ratifies
and affirms the terms and provisions of the Agreement. Company releases Bank
from any and all claims, which may have arisen, known or unknown, in connection
with the Agreement on or prior to the date hereof, except those claims stemming
from gross negligence and willful misconduct. This Amendment shall not establish
a course of dealing or be construed as evidence of any willingness on the Bank's
part to grant other or future amendments, should any be requested.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
day and year first above written.
BANK ONE, INDIANA, N.A. DMI FURNITURE, INC.
BY:________________________________________ BY: ____________________________
XXXXXX X. XXXXXXXX, FIRST VICE PRESIDENT
________________________________
(PRINTED NAME AND TITLE)
ACKNOWLEDGMENT AND AGREEMENT BY GUARANTOR AND/OR OWNER
OF COLLATERAL SECURING THE PROMISSORY NOTE
The undersigned (i) consent to the modification of the Agreement and all other
matters in the foregoing Amendment and, if a guarantor (ii) reaffirm the
Guaranty Agreement, dated June 9, 1994, and any other agreements, documents and
instruments securing or otherwise relating thereto ("Guarantor Documents"),
(iii) acknowledge that the Guarantor Documents continue in full force and
effect, remain unchanged, except as specifically modified hereby, and are valid,
binding and enforceable in accordance with their respective terms, (iv) agree
that all references, if any, in the Guarantor Documents to the Agreement are
modified to refer to that document as modified by the Amendment, and (v) agree
to be bound by the release of Bank set forth in the Amendment.
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DMI MANAGEMENT, INC.
BY: ____________________________
________________________________
(Printed Name and Title)
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