1
EXHIBIT 10.23.2
SECOND AMENDMENT, WAIVER AND CONSENT AGREEMENT
This SECOND AMENDMENT, WAIVER AND CONSENT AGREEMENT (this
"Agreement"), is dated as of April 9, 1998, by and among The Maxim Group, Inc.,
("Maxim"), certain Subsidiaries of Maxim identified on the signature pages
hereto (together with Maxim, the "Borrowers"), the financial institutions
identified on the signature pages hereto as lenders (the "Lenders"), First Union
National Bank ("First Union"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), NationsBank, N.A., as documentation agent
(the "Documentation Agent"), and Fleet National Bank, as co-agent (the
"Co-Agent").
RECITALS
WHEREAS, the Borrowers, the Lenders, the Administrative Agent,
the Documentation Agent and the Co-Agent are parties to that certain Credit
Agreement dated as of August 26, 1997, as amended by that certain letter
agreement dated as of September 24, 1997 (as so amended, the "Credit
Agreement");
WHEREAS, the Borrowers desire to enter into that certain
Guaranty Agreement dated as of the date hereof (the "Guaranty"), pursuant to
which they will, jointly and severally, unconditionally guarantee the
obligations of First Security Bank, National Association, as trustee (the
"Owner-Trustee"), under that certain (i) promissory note dated as of the date
hereof (the "Bridge Note") issued by the Owner-Trustee and First Union, in its
capacity as co-trustee under that certain Trust Agreement (as defined in Section
3 below), to First Union in the principal face amount of $12,610,000, and (ii)
the Certificate dated as of the date hereof (the "Certificate") issued by the
Owner-Trustee to First Union in the principal face amount of $390,000;
WHEREAS, THE Borrower desires to enter into that certain (a)
Agency Agreement dated as of the date hereof (the "Agency Agreement") with the
Owner-Trustee, pursuant to which Maxim will act as agent for the Owner-Trustee
in connection with certain matters; (b) the Indemnification Agreement dated as
of the date hereof (the "Indemnification Agreement"; the Guaranty, the Bridge
Note, the Certificate, the Agency Agreement and the Indemnification Agreement
are referred to herein collectively as the "Bridge Loan Documents") with the
Owner-Trustee and First Union, pursuant to which, among other things, Maxim
will indemnify First Union, the Owner-Trustee and certain other Persons
identified therein from certain costs, expenses and liabilities;
WHEREAS, all of the obligations of the Borrowers under the
Guaranty will be secured by, among other things, (a) the Collateral (as such
term is defined in the Security Agreement), as provided in that certain First
Amendment to Security Agreement (the "Security Agreement Amendment") dated as of
the date hereof, and (b) an assignment by Maxim to First Union of all of Maxim's
rights under the Guaranty, the Agency Agreement and the Indemnification
Agreement, in each case, as provided for in the Indemnification Agreement
(together with any assignment of Maxim's rights under any leases of real
property entered into between the Owner-Trustee, as lessor, and Maxim, as
lessee, referred to herein collectively as the "Assignment"); and
2
WHEREAS, the Borrowers have jointly and severally requested
(i) the written approval of the Lenders to the execution, delivery and
performance by Maxim and each of the other Borrowers of each of the Bridge Loan
Documents to which they are party, including, without limitation, (A) the
Contingent Obligations incurred by the Borrowers under the Guaranty, and (B) the
Assignment, (ii) the amendment of the Credit Agreement as set forth in Section 2
hereof to, (iii) the amendment of the Security Agreement pursuant to the terms
of the Security Agreement Amendment, (iv) a waiver of enforcement of Section
7.12 of the Credit Agreement with respect to (A) the failure of the Borrowers to
cause CarpetMAX of Jacksonville, Inc., a Georgia corporation and a newly created
wholly-owned Subsidiary of Maxim (the "New Subsidiary"), to timely execute and
deliver to the Administrative Agent a Joinder Agreement and a supplement to the
Security Agreement upon the creation thereof, and (B) the failure of Maxim to
timely execute and deliver a supplement to the Pledge Agreement in favor of the
Administrative Agent for the benefit of the Lenders with respect to the shares
of the New Subsidiary owned by it, and (v) a waiver of enforcement of Section
4(a)(ii) of the Security Agreement and Section 10.1(e) of the Credit Agreement
with respect to the failure of the Borrowers to timely notify the Administrative
Agent of the change in the name of the Subsidiary Borrowers identified on
Schedule 1 attached hereto and made a part hereof.
NOW, THEREFORE, in consideration of the premises and the
agreements, covenants and provisions herein contained, for Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. General. Subject to the satisfaction in full of each of the
conditions set forth in Section 5 hereof, upon and after the date hereof, all
references to the Credit Agreement in that document or in any other Loan
Document shall mean the Credit Agreement as amended hereby. Except as expressly
provided herein, the execution and delivery of this Agreement does not and will
not amend, modify or supplement any provision of, or constitute a consent to or
a waiver of any noncompliance with the provisions of, the Credit Agreement, and,
except as specifically provided in this Agreement, the Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
2. Amendments. Subject to the satisfaction in full of each of
the conditions set forth in Section 5 hereof, the Credit Agreement is hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by
adding (in alphabetical order) the following new defined terms
to read in their entirety as follows:
"Borrowing Request Notice" shall have the meaning assigned
thereto in Section 2.13.
"Bridge Note" means that certain promissory note dated as
of April 9, 1998 issued by the Owner-Trustee and First
Union, acting in its capacity as co-trustee under the Trust
Agreement, to First Union in the principal face amount of
$12,610,000.
-2-
3
"Certificate" means that certain Certificate dated as of
April 9, 1998 issued by the Owner-Trustee to First Union in
the principal face amount of $390,000.
"Guaranty" means the Guaranty Agreement dated as of April
9, 1998 by the Borrowers in favor of First Union, pursuant
to which each of the Borrowers has jointly and severally
guaranteed the payment obligations of the Owner-Trustee
under the Bridge Note and the Certificate.
"Guaranty Reserve" means, at any time, an amount equal to
the lesser of (a) $13,000,000, and (b) the sum of (i) the
outstanding principal under the Bridge Note, together with
all accrued and unpaid interest and fees thereon, and all
other amounts then due and payable in respect of the Bridge
Note, plus (ii) the outstanding principal amount under the
Certificate, together with all accrued and unpaid yield and
fees thereon, and all other amounts then due and payable in
respect of the Certificate.
"Guaranty Payment Date" means any date upon which the
principal, interest, fees or other amounts become due and
payable under the Bridge Note or the Certificate.
"Owner-Trustee" means First Security Bank, National
Association, in its capacity as trustee pursuant to that
certain Trust Agreement dated as of April 9, 1998, by and
between First Union and First Security Bank, National
Association, together with its successors and assigns.
(b) Section 1.1 of the Credit Agreement is further amended
by amending and restating the following definitions to read in their
entirety as follows:
"Borrowing Base" means, at any date of determination ,
an amount equal to the lesser of (a) $50,000,000 less the
Guaranty Reserve (except with respect to any request or
deemed request for a Revolver Loan advance pursuant to
Section 2.13 hereof), and (b)(i) for any date of
determination prior to April 30, 1998, an amount equal to
four (4) times Consolidated EBITDAR, for the period of four
consecutive fiscal quarters then most recently ended, less
an amount equal to Consolidated Senior Debt at such date,
plus an amount equal to Debt outstanding under the Revolver
Facility at such date, less the Guaranty Reserve (except
with respect to any request or deemed request for a
Revolver Loan advance pursuant to Section 2.13 hereof), and
(ii) for any date of
-3-
4
determination on or after April 30, 1998, an amount equal
to three and three quarters (3.75) times Consolidated
EBITDAR, for the period of four consecutive fiscal quarters
then most recently ended, less an amount equal to
Consolidated Senior Debt at such date, plus an amount equal
to Debt outstanding under the Revolver Facility at such
date, less the Guaranty Reserve.
"Obligations" means, in each case, whether now in
existence or hereafter arising: (a) the principal of and
interest on (including interest accruing after the filing
of any bankruptcy or similar petition) the Loans, (b) all
payment and other obligations owing by a Borrower to any
Lender under any Hedging Agreement, (c) all payment and
other obligations of Maxim and the other Borrowers under or
in respect of the Guaranty, and (d) all other fees and
commissions (including attorney's fees), charges,
indebtedness, loans, liabilities, financial accommodations,
obligations (including, without limitation, the obligations
of Borrowers under the Reimbursement Agreement and the
reimbursement obligations of Borrowers under any and all
Letters of Credit), covenants and duties owing by a
Borrower to the Lenders or to the Administrative Agent
under or in respect of this Agreement, any Note or any of
the other Loan Documents, of every kind, nature and
description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated
or unliquidated, and whether or not evidenced by any note,
and whether or not for the payment of money.
(c) Section 1.1 of the Credit Agreement is further
amended by: deleting the word "and" immediately preceding clause
(g) of the definition of "Permitted Liens"; by deleting the period
appearing at the end of clause (g) of the definition of "Permitted
Liens"; and by adding a new clause (h) to the end of the
definition of "Permitted Liens" to read in its entirety as
follows:
and, (h) Liens in favor of the Administrative Agent to
secure the joint and several payment obligations of the
Borrowers in respect of the Guaranty.
(d) Section 2.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
SECTION 2.1 Revolver Loans. Subject to the terms
and conditions of this Agreement, each Lender
severally but not jointly agrees to make Revolver
Loans to the Borrowers jointly and severally from
time to time from the Closing Date through the
-4-
5
Revolver Facility Termination Date as requested by Maxim, on
behalf of Borrowers, in accordance with the terms of Section 2.2;
provided that (i) the aggregate principal amount of all
outstanding Revolver Loans (after giving effect to any amount
requested) shall not exceed the lesser of (A) the Borrowing Base
less (x) the aggregate principal amount of Swingline Loans
outstanding, and less (y) the aggregate Conventional LOC
Obligations, or (B) fifty million dollars ($50,000,000) less (x)
the aggregate principal amount of Swingline Loans outstanding,
less (y) the aggregate Conventional LOC Obligations, and less the
Guaranty Reserve (except with respect to any request or deemed
request for a Revolver Loan advance pursuant to Section 2.13
hereof), and (ii) the aggregate principal amount of Revolver Loans
from any single Lender shall not at any time exceed such Lender's
Revolver Loan Commitment. Each Revolver Loan by a Lender shall be
in a principal amount equal to such Lender's Revolver Loan
Commitment Percentage of the aggregate principal amount of
Revolver Loans requested on such occasion, up to a maximum
principal amount at any time outstanding under the Revolver
Facility equal to such Lender's Revolver Loan Commitment
Percentage of the Borrowing Base at such time. If at any time the
Lenders shall make Revolver Loans to the Borrowers such that the
aggregate amount of Revolver Loans outstanding hereunder exceeds
the Borrowing Base, such Revolver Loans shall nonetheless
constitute Obligations hereunder. Subject to the terms and
conditions hereof, the Borrowers may borrow, repay and reborrow
Revolver Loans hereunder until the Revolver Facility Termination
Date.
(e) Article II of the Credit Agreement is hereby amended by adding
a new Section 2.13 thereto at the end thereof to read in its entirety as
follows:
2.13 Repayment of Guaranty with Revolver Loans. First Union
will promptly give notice to Maxim, on behalf of the Borrowers, of any
failure by the Owner-Trustee to pay any principal, interest, yield, fees
or other amounts then due and owing under the Bridge Note or the
Certificate on any Guaranty Payment Date. Unless Maxim, on behalf of the
Borrowers, shall cause First Union, for its own account, to be reimbursed
for such failure to timely pay other than from the proceeds of Revolver
Loans by no later than 11:00 a.m. (Charlotte time) on the day next
succeeding any Guaranty Payment Date, the Borrowers shall request or be
deemed to have requested a Revolver Loan advance (in an amount not to
exceed the Guaranty Reserve) to be used to pay the
-5-
6
principal, interest, yield, fees and other amounts then due and owing to
First Union under the Bridge Note and the Certificate, and the
Administrative Agent shall promptly (and in any event by not later than
2:00 p.m. (Charlotte time)) give notice ("Borrowing Request Notice") to
the Lenders that a Revolver Loan has been requested or deemed requested
by the Borrowers to be made in connection with the Guaranty, in which
case Lenders shall make Revolver Loans to the Borrowers jointly and
severally in a principal amount for each Lender equal to such Lender's
Revolver Loan Commitment Percentage of such Revolver Loan requested or
deemed to be requested by the Borrowers as provided below. Each Lender
shall make available to the Administrative Agent, at the office of the
Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, such Lender's Revolver Loan Commitment Percentage
of the Revolver Loans requested or deemed requested, and the proceeds
thereof shall be paid directly to First Union for application to the
payment of any and all principal, interest, yield, fees and other amounts
then due and owing under the Bridge Note and the Certificate. Each such
Lender hereby irrevocably agrees to make its Revolver Loan Commitment
Percentage of each such Revolver Loan immediately upon any such request
or deemed request in the amount and in the manner specified in the
preceding sentence on the date that any Borrowing Request Notice is
given, notwithstanding (i) the amount of such borrowing may not comply
with the minimum amount for advances of Revolver Loans otherwise required
hereunder, (ii) whether any conditions specified Section 4.3 are then
satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for Revolver Loans to
be made by the time otherwise required hereunder, (v) whether the date of
such borrowing is a date on which Revolver Loans are otherwise permitted
to be made hereunder or (vi) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such borrowing;
provided, however, that if any Revolver Loan cannot for any reason be
made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
with respect to any Borrower or any other Person obligated upon the
Obligations), then each such Lender hereby agrees that it shall forthwith
purchase (as of the date that any such Borrowing Request Notice is given,
but adjusted for any payments received from the Borrowers on or after
such date and prior to such purchase) from First Union such participation
in the outstanding principal amount of the Bridge Note and the
Certificate, as shall be necessary to
-6-
7
cause each such Lender to share in the outstanding principal amount of
the Bridge Note and the Certificate then due and owing, ratably (based
upon the respective Revolver Loan Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 2.8)), provided, further, that at the time any such
purchase of a participation is actually made, the purchasing Lender shall
be required to pay to First Union, to the extent not paid to First Union
by Maxim, interest and/or yield, as applicable, on the principal amount
of participation purchased for each day from and including the day upon
which such Borrowing Request Notice was given to but excluding the date
of payment for such participation, if paid within two (2) Business Days
of the date of the Revolver Loan, at the Federal Funds Rate, and
thereafter at the Base Rate.
(f) Section 3.5 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
SECTION 3.5 Crediting of Payments and Proceeds. In the event
that any Borrower shall fail to pay any of the Obligations when due and
the Obligations have been accelerated pursuant to Section 10.2, all
payments received by the Lenders upon the Notes and the other Obligations
and all net proceeds from the enforcement of the Obligations shall be
distributed pro rata among the Revolver Facility and the Term Loan and
shall be further applied among the Administrative Agent and such Lenders
first, to all Administrative Agent's fees and expenses then due and
payable, then to all other expenses then due and payable by the Borrowers
hereunder, then to all indemnity obligations then due and payable by the
Borrowers hereunder, then to all commitment and other fees and
commissions then due and payable, then to accrued and unpaid interest on
the Obligations and any termination payments due in respect of a Hedging
Agreement with any Lender (pro rata in accordance with all such amounts
due), then to the principal amount of the Obligations, in that order.
(g) Section 10.1 of the Credit Agreement is amended by adding a new
clause (p) and clause (q) to the end thereof to read in their entirety as
follows:
(p) any "Event of Default" (as such term is defined in the Bridge
Note) by the Owner-Trustee under the Bridge Note.
-7-
8
(q) any "Event of Default" (as such term is defined in the
Certificate) by the Owner-Trustee under the Certificate.
(h) The forms of the Notice of Borrowing and the Swingline Notice of
Borrowing, Exhibits B1 and B2, respectively, to the Credit Agreement are
hereby amended and restated in their entirety as set forth on Exhibit B1
and Exhibit B2 attached hereto and made a part hereof.
(i) Schedules 5.1(a), 5.1(b) and 5.1(r) to the Credit Agreement are
hereby replaced by new Schedules 5.1(a), 5.1(b) and 5.1(r), respectively,
attached hereto and made a part hereof.
3. Consent and Waiver. Subject to the satisfaction in full of each of the
conditions set forth in Section 5 hereof, the Lenders hereby (a) consent to the
loan by First Union to the Owner-Trustee in the aggregate principal amount of
$12,610,000, as evidenced by the Bridge Note, (b) consent to First Union's
equity contribution to the Maxim Real Estate Trust 1998-1 in the principal
amount of $390,000, as evidenced by the Certificate, and to First Union's
beneficial ownership interest in the trust created pursuant to the Trust
Agreement dated as of the date hereof (the "Trust Agreement") by and between
First Union and the Owner-Trustee, (c) consent to First Union acting in its
capacity as co-trustee under the Trust Agreement, (d) consent to the
unconditional guarantee by Maxim and each of the other Borrowers of the
obligations of the Owner-Trustee under the Bridge Note pursuant to the terms and
provisions of the Guaranty, (e) consent to the execution, delivery and
performance by each of the Borrowers and First Union of each of the Bridge Loan
Documents to which they are a party to, (f) waive any violation of Section 9.2
of the Credit Agreement due to the incurrence by Maxim of the Contingent
Obligations under the Guaranty and the Indemnification Agreement, (g) consent to
the execution, delivery and performance by the Borrowers of the Security
Agreement Amendment, (h) consent to the Assignment and waive any violation of
Section 9.3 of the Credit Agreement arising as a result of the Assignment, (i)
waives enforcement of Section 7.12 of the Credit Agreement with respect to (1)
the failure of the Borrowers to cause the New Subsidiary to timely execute and
deliver to the Administrative Agent a Joinder Agreement and a supplement to the
Security Agreement, and (2) the failure of Maxim to timely execute and deliver a
supplement to the Pledge Agreement in favor of the Administrative Agent for the
benefit of the Lenders, with respect to the shares of the New Subsidiary owned
by it; and (j) waives enforcement of Section 4(a)(ii) of the Security Agreement
and Section 10.1(e) of the Credit Agreement with respect to the failure of the
Borrowers to timely notify the Administrative Agent of the change in the name of
the Subsidiary Borrowers identified on Schedule 1 attached hereto and made a
part hereof.
-8-
9
4. Representations and Warranties. Each Borrower (including the New
Subsidiary) hereby represents and warrants to the Administrative Agent and the
Lenders as follows:
(a) Authorization of Amendment, Etc. Each Borrower has the right
and power, and has taken all necessary action to authorize it, to
execute, deliver and perform this Agreement in accordance with its terms.
This Agreement has been duly executed and delivered by each Borrower and
is a legal, valid and binding obligation of such Borrower, enforceable
against such Borrower in accordance with its terms.
(b) Compliance of Amendment with Laws, Etc. The execution,
delivery and performance of this Agreement in accordance with its terms
do not and will not, by the passage of time, the giving of notice or
otherwise,
(i) require any governmental approval or violate any
applicable law relating to any Borrower;
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or
bylaws of any Borrower, any material provisions of any indenture,
agreement or other instrument to which any Borrower is a party or
by which any Borrower or any of its properties may be bound or any
governmental approval relating to any Borrower, or
(iii) result in or require the creation or imposition of any
Lien (other than Permitted Liens) upon or with respect to any
property now owned or hereafter acquired by any Borrower.
(c) Representations in Credit Agreement. After giving effect to
this Agreement, all of the representations set forth in the Credit
Agreement are accurate in all material respects as of the date hereof,
except to the extent that such representations and warranties relate
solely to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier
date.
5. Conditions to Effectiveness.
(a) The effectiveness of the amendments, waivers and consents set
forth herein are subject to the Administrative Agent's receipt of each of
the following on the date first set forth above:
(i) counterparts of this Agreement, duly executed and
delivered by the Borrowers (including the New Subsidiary) and the
Lenders;
(ii) counterparts of the Security Agreement Amendment, duly
executed and delivered by the Borrowers (including the New
Subsidiary) and the Administrative Agent;
-9-
10
(iii) certified copies of all corporate action taken by the
Borrowers (including the New Subsidiary) to authorize the
execution, delivery and performance of this Agreement, the
Security Agreement Amendment and each other certificate, agreement
or other document to be executed by the Borrowers in connection
with this Agreement;
(iv) a favorable opinion of outside counsel to the Borrowers
(including the New Subsidiary) addressed to the Administrative
Agent and Lenders with respect to the Borrowers and such other
Persons, this Agreement, the Guaranty, the Security Agreement
Amendment, the Joinder Agreement (defined below), the Security
Agreement Supplement (defined below), the Stock Pledge Supplement
(defined below), and the transactions contemplated hereby and
thereby, and such other matters as the Administrative Agent and
the Lenders may reasonably request, reasonably satisfactory in
form and substance to the Administrative Agent and Lenders;
(v) a Joinder Agreement dated as of the date hereof (the
"Joinder Agreement"), duly executed by the New Subsidiary and
substantially in the form as set forth in Exhibit I to the Credit
Agreement;
(vi) a Security Agreement Supplement dated as of the date
hereof (the "Security Agreement Supplement"), duly executed by the
New Subsidiary and substantially in the form as set forth in Annex
I to the Security Agreement; and
(vii) a Pledge Agreement Supplement dated as of the date
hereof (the "Pledge Agreement Supplement"), duly executed by Maxim
and substantially in the form as set forth in form of Pledge
Agreement Supplement attached to the Pledge Agreement executed by
Maxim in favor of the Administrative Agent.
(b) The continued effectiveness of the waivers set forth in clause
(i) and clause (j) of Section 3 hereof are subject to the satisfaction in
full of the following conditions:
(i) Within ten (10) Business Days after the date hereof, the
Administrative Agent shall have received duly executed UCC-3
financing statements with respect to each of the Borrowers listed
on Schedule 1 hereto, amending the original UCC-1s that were filed
in connection with the closing that occurred on August 26, 1997,
to reflect the name changes of the Borrowers described on Schedule
1 hereto, in each case, in the appropriate form for filing with
the applicable Governmental Authorities; and
(ii) Within ten (10) Business Days after the date hereof, the
Administrative Agent shall have received UCC-1 financing
statements with respect to the New Subsidiary, in each case, duly
executed by an officer of the New Subsidiary and in the
appropriate form for filing with the applicable Governmental
Authorities in order to perfect all of the Liens and security
interests granted by the New Subsidiary in favor of the
Administrative Agent for the benefit of the Lenders pursuant to
the Security Agreement Supplement.
-10-
11
Without limiting the foregoing, the waivers set forth in clause (h) and clause
(i) of Section 3 hereof will terminate and be of no further force and effect if
Borrowers' fail to satisfy the conditions referred to in clauses (i) and (ii) of
this Section 5(b) within ten (10) Business Days after the date hereof. This
Agreement, including, without limitation Section 5(b) hereof, is not intended to
and shall not be construed as in any way limiting the provisions of clauses (d)
and (e) of Section 7.12 of the Credit Agreement or of clauses (iii) and (x) of
Section 4 of the Security Agreement.
6. Covenants. Each of the Borrowers hereby covenants and agrees that,
on and at all times after the date hereof, for purposes of (a) determining
compliance with the covenants set forth in Article VIII of the Credit Agreement
and Sections 9.1 and 9.2 of the Credit Agreement, and (b) calculating the
Applicable Margin and the Commitment Fee, or any adjustments thereto, in
accordance with Article III of the Credit Agreement, the Contingent Obligations
of Maxim shall be deemed to include (irrespective of whether Maxim or any other
Borrower is obligated to pay all or any portion of such amounts pursuant to the
Guaranty, any other Bridge Loan Document or otherwise), at any date of
determination thereof, the entire amount of principal then outstanding under the
Bridge Note, together with all accrued and unpaid interest and fees thereon, and
all other amounts then due and payable in respect of the Bridge Note, plus (ii)
the entire amount of principal then outstanding under the Certificate, together
with all accrued and unpaid yield and fees thereon, and all other amounts then
due and payable in respect of the Certificate. For the avoidance of doubt, the
parties hereto hereby agree that solely for purposes of calculating the
Commitment Fee under the Credit Agreement (i) the establishment and maintenance
of the Guaranty Reserve, together with any adjustments in the amount of such
reserve made from time to time on and after the date hereof, shall not
constitute usage in respect of the Commitment under the Credit Agreement, and
(II) the amount of the Revolver Loan Commitment shall not be deemed to be
reduced by the amount of the Guaranty Reserve.
7. Release. Each Borrower hereby (a) acknowledges that First Union is a
beneficiary under the Maxim Real Estate Trust 1998-1 formed under the Trust
Agreement (the "Trust"), (b) consents to First Union being appointed, and
acting, as co-trustee under the Trust Agreement, and (c) irrevocably releases,
remises, quitclaims, and forever discharges First Union and First Union's
affiliates, subsidiaries, officers, directors, employees, agents, counsel, and
representatives, together with their predecessors, successors and assigns
(collectively, the "Released Parties") from any and all actions, causes of
action, suits, debts, demands, controversies, damages, judgments, liens, claims,
charges and liabilities whatsoever, in law or in equity or otherwise which arise
out of or relate to any act or failure to act by First Union in its capacity as
co-trustee under the Trust Agreement, including without limitation, any
communications, transactions, dealings, loans to and payments from, services
performed for, or any other relationship with or work performed for or in
connection with the Trust or any beneficiaries thereof, which such Borrower,
directly or indirectly ever had, now has or hereafter may have against the
Released Parties; provided that the release contained in clause (c) of this
Section 7 shall not apply to any actions arising solely
-11-
12
out of the gross negligence or willful misconduct of First Union acting in its
capacity as co-trustee under the Trust Agreement.
8. Counterparts. This Agreement may be executed by each party to this
Agreement upon a separate copy, and in such case one counterpart of this
Agreement shall consist of enough of such copies to reflect the signature of all
of the parties to this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or its terms to produce or account
for more than one of such counterparts.
9. Section References. The references in this Agreement to any section
are, unless otherwise specified, to such section of this Agreement.
10. Construction. This Agreement is a Loan Document executed pursuant
to the Credit Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Credit Agreement.
11. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Georgia, without reference
to the conflicts or choice of law principles thereof.
12. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Signatures appear on following pages]
-12-
13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers hereunder duly authorized
as of the day and year first written above.
[CORPORATE SEAL] THE MAXIM GROUP, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] IMAGE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
----------------------
Title: Assistant Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF KENTUCKY, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF JACKSONVILLE, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
----------------------
Title: Secretary
----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
14
[CORPORATE SEAL] CARPETMAX OF UTAH, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF FLORIDA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] RNA ENTERPRISES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] GCO, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] XXXXXX CARPETS & FLOORS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
15
[CORPORATE SEAL] RUGS N REMNANTS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF ALABAMA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF INDIANA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] CARPETMAX OF NORTH CAROLINA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[CORPORATE SEAL] INVESTOR MANAGEMENT, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
16
[CORPORATE SEAL] GCO CARPET OUTLET, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] MAXIM RETAIL GROUP, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CARPETMAX OF IOWA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CARPETMAX, L.P.
By: The Maxim Group, Inc., as
its sole general partner
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] TRI-R OF ORLANDO, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
17
[CORPORATE SEAL] CARPETMAX OF PALM BEACH, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CREDITMAX CORP.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CARPETMAX OF NEW MEXICO, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CARPETMAX OF CHARLOTTE, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] CLOUD CARPETS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
18
[CORPORATE SEAL] CARPETMAX ALABAMA CONTRACT, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] XXXXXX & XXXXXXX CARPETMAX OF
TENNESSEE, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
[CORPORATE SEAL] MAXIM EQUIPMENT LEASING
COMPANY, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-----------------------
Title: Secretary
-----------------------
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------
Title: Senior Vice President
-----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
19
NATIONSBANK, N.A., as Lender and
as Documentation Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------
Title: Vice President
-----------------------
FLEET NATIONAL BANK, as Lender
and as Co-Agent
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
-----------------------
Title: Vice President
-----------------------
SUNTRUST BANK, ATLANTA, as Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------
Title: Assistant Vice President
-----------------------
By: /s/ Xxx X. Xxxxxx
-----------------------------
Name: Xxx X. Xxxxxx
-----------------------
Title: Banking Officer
-----------------------
[Second Amendment, Waiver and Consent Agreement - Signature Page]
