EXHIBIT NO. 10.59
WAIVER TO POSTPETITION
CREDIT AGREEMENT
THIS WAIVER, dated as of December 31, 1998 to the POSTPETITION CREDIT
AGREEMENT dated as of September 5, 1997 (the "CREDIT AGREEMENT"), 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"), and XXXXXX FURNITURE REINSURANCE LTD.
("LFRL") (LFI, LFC, LFR, LSS, LFC Midwest, LFC Pacific, LFC Washington, LFC
Midwest Realty, LFC Pacific Realty, LFC Washington Realty and LFRL 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.
PRELIMINARY STATEMENTS:
A. The Borrowers and the Lenders are parties to the Credit
Agreement.
B. The Borrowers have requested the Lenders and the Agent to waive
the Credit Agreement in certain respects.
C. The Lenders and the Agent have agreed to waive the Credit Agreement
as requested on the terms and conditions set forth in this Waiver.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Waiver, the Borrowers, the Lenders and the Agent
hereby agree as follows:
1. WAIVER.
The Agent and the Lenders hereby waive the Events of Default arising
under SECTION 9.1(B) of the Credit Agreement as a result of Borrowers' failure
to satisfy the minimum EBITDA covenant set forth in SECTION 8.1 of the Credit
Agreement.
2. CONDITIONS PRECEDENT.
This Waiver shall become effective upon satisfaction of the following
condition:
1
1. The Agent shall have received ten (10) copies of this Waiver,
duly executed by the LFC Funds Administrator, each of the Borrowers, and
each of the Lenders.
2. The Agent shall have received a non-refundable Waiver Fee in
the amount of $100,000.
3. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers hereby represents and warrants to each of the
Agents and Lenders that, after giving effect to this Waiver:
(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 Waiver, 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 Waiver, and the Credit Agreement as waived 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 Waiver 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.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
4.1 Upon the effectiveness of this Waiver, 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.
4.2 Except as expressly set forth herein, (i) the execution and
delivery of this Waiver 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 Waiver 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.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND
DECISIONS OF THE STATE OF NEW YORK.
2
6. HEADINGS. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver for
any other purpose.
7. COUNTERPARTS. This Waiver 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.
[The remainder of this page is intentionally left blank.]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
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: Vice President
-----------------------------
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity
and it its capacity as the LFC Funds
Administrator
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
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: Vice President
-----------------------------
4
XXXXXX SHOPPING SERVICE,
a Florida corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE COMPANY OF THE
MIDWEST REALTY, INC.,
a Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
5
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
XXXXXX FURNITURE REINSURANCE LTD.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
AGENT:
BT COMMERCIAL CORPORATION,
in its capacity as Agent
By: /s/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
-----------------------------
Title: Associate
-----------------------------
REVOLVING LENDERS:
BT COMMERCIAL CORPORATION,
a Delaware corporation in its
respective capacities as Revolving Lender
and Collateral Agent
By: /s/ XXXX X. XXXXXX
------------------------------
Name: Xxxx X. Xxxxxx
------------------------------
Title: Associate
------------------------------
FINOVA CAPITAL CORPORATION, in its
capacity as Revolving Lender
By: /s/ XXXXX XXXXXXXX
------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: AVP
------------------------------
6
XXXXXX FINANCIAL, INC.,
in its capacity as Revolving Lender
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: AVP-Relationship Manager
-----------------------------
LASALLE NATIONAL BANK,
in its capacity as Revolving Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------
Title: Sr. VP
-----------------------------
CONGRESS FINANCIAL CORPORATIONN
(CENTRAL), in its capacity
as Revolving Lender
By: /s/ XXXXXX XXXXXXXXX
-----------------------------
Name: Xxxxxx Xxxxxxxxx
-----------------------------
Title: Vice President
-----------------------------
TRANSAMERICA BUSINESS CREDIT
CORPORATION, in its capacity
as Revolving Lender
By: /s/ XXXXXX XXXXX
-----------------------------
Name: Xxxxxx Xxxxx
-----------------------------
Title: SVP
-----------------------------
SILVER OAK CAPITAL L.L.C.,
in its capacity as Revolving Lender
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Authorized Signatory
-----------------------------
7
AG CAPITAL FUNDING PARTNERS, L.P.,
in its capacity as Revolving Lender
By: Xxxxxx Xxxxxx & Co., L.P.,
as Investment Advisor
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Authorized Signatory
-----------------------------
NATIONSCREDIT COMMERCIAL CORPORATION,
THROUGH ITS NATIONSCREDIT COMMERCIAL
FUNDING DIVISION,
in its capacity as Revolving Lender
By: /s/
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
GREEN TREE FINANCIAL SERVICING
CORPORATION,
in its capacity as Revolving Lender
By: /s/ XXXXXXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
-----------------------------
Title: SVP/GM
-----------------------------
TERM LENDER:
AG CAPITAL FUNDING PARTNERS, L.P.,
in its capacity as Second Term Lender
By: Xxxxxx Xxxxxx & Co., L.P.,
as Investment Advisor
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Authorized Signatory
-----------------------------
SILVER OAK CAPITAL L.L.C.,
in its capacity as Term Lender
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Authorized Signatory
-----------------------------
8
