EXHIBIT NO. 10.66
TWELFTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT, dated as of
August [__], 1999 (this "Amendment"), is among XXXXXX FURNITURE INCORPORATED, a
Delaware corporation and a debtor and debtor in possession, XXXXXX FURNITURE
CORPORATION, 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, XXXXXX SHOPPING SERVICE, INC., a Florida corporation
and a debtor and debtor in possession, XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation and a debtor and debtor in possession, XXXXXX
FURNITURE COMPANY OF THE PACIFIC, INC., a California corporation and a debtor
and debtor in possession, XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation and a debtor and debtor in possession, XXXXXX FURNITURE
COMPANY OF THE MIDWEST REALTY, INC., a Colorado corporation and a debtor and
debtor in possession, XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY, INC., a
California corporation and a debtor and a debtor in possession, XXXXXX FURNITURE
COMPANY OF WASHINGTON REALTY, INC., a Washington corporation and debtor and a
debtor in possession, XXXXXX REINSURANCE CORPORATION, XXXX X. XXXXX COMPANY, an
Illinois corporation and a debtor and debtor in possession, and XXXX X. XXXXX
REALTY COMPANY, an Illinois corporation and a debtor and debtor in possession
(collectively, the "BORROWERS"), each Revolving Lender and Overadvance Term
Lender signatories hereto (collectively, the "LENDERS"), and BT COMMERCIAL
CORPORATION, a Delaware corporation, acting in its capacity as collateral agent
and agent for the Lenders (in such capacity, together with its successors in
such capacity, the "AGENT"). Capitalized terms used in this Amendment and not
otherwise defined have the meanings assigned to such terms in the Postpetition
Credit Agreement dated as of September 5, 1997 (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among the Borrowers, the Lenders and the Agent.
PRELIMINARY STATEMENTS:
A. The Borrowers, the Lenders and the Agent are parties to the Credit
Agreement.
B. The Borrowers have requested that the Lenders and the Agent amend
the Credit Agreement in certain respects.
C. The Borrowers, the Lenders and the Agent have agreed to amend the
Credit Agreement on the terms and subject to the conditions of this Amendment.
AGREEMENT:
In consideration of the premises and the mutual agreements contained in
this Amendment, the Borrowers, the Lenders and the Agent agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
On the date each of the conditions set forth in SECTION 2 is satisfied
by the Borrowers (the "CLOSING DATE"), the Credit Agreement is amended as
follows:
1.1 Article 2C to the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
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ARTICLE 2C. OVERADVANCE TERM LOAN
Subject to the terms and conditions set forth in this Credit
Agreement, and in reliance on the representations and warranties of the
Borrowers set forth herein, from time to time prior to the Overadvance
Maturity Date and upon receipt of notice from the Agent that Excess
Availability is less than $12,000,000 (which amount shall include the
amount set forth in subsection (d) in the definition of Borrowing
Base), the Overadvance Term Lender will make term loans (each an
"Overadvance Term Loan") to the Borrowers, as soon as reasonably
practicable and in no event more than 10 Business Days after receiving
notice from the Agent, each in the original principal amount of
$10,000,000. In no event may more than one Overadvance Term Loan be
outstanding at any time. Notwithstanding anything to the contrary
contained in Section 4.7B and Section 4.11 and provided that no Default
or Event of Default then exists, Borrowers shall repay the principal
amount of any Overadvance Term Loan in the event that Excess
Availability is equal to or greater than $18,000,000 for the five (5)
consecutive Business Days prior to the date of such prepayment. The
proceeds of each Overadvance Term Loan will be immediately deposited
with the Agent and, notwithstanding the provisions of Section 4.11,
will be applied by the Agent to pay down the outstanding principal of
the Revolving Loans on such date. Each Overadvance Term Loan shall be
evidenced by an Overadvance Term Note and shall be governed in all
respects by the terms of this Credit Agreement and the other Credit
Documents.
1.2 The definition of "Borrowing Base" contained in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Borrowing Base means, at any time, the sum at such time of:
(a) the Fixed Asset Sublimit (which may be a negative
number), plus
(b) eighty-five percent (85%) of Eligible Accounts
Receivable, plus
(c) seventy-five percent (75%) of Eligible Inventory; provided
that the foregoing percentage may be adjusted by the Agent in the
exercise of its Permitted Discretion based upon appraisals of the
Borrowers' inventory prepared from time to time at the Agent's or the
Majority Lenders' direction, plus
(d) solely for the purposes of accepting the borrowing of the
Overadvance Term Loans, $10,000,000 (the "Overadvance Term Loan
Amount"); provided, that, effective as of the earlier to occur of (i)
ten (10) Business Days after the date on which the Overadvance Term
Lender receives notice from the Agent that Excess Availability is less
than $12,000,000 or (ii) the date on which the proceeds of an
Overadvance Term Loan are received by the Agent for the account of the
Debtors, the Overadvance Term Loan Amount will be automatically reduced
to zero (-0-); and provided further, that (I) in the event that the
principal amount of any Overadvance Term Loan is repaid as contemplated
under Article 2C, the Overadvance Term Loan Amount will automatically
be reestablished at $10,000,000 and (ii) notwithstanding anything to
the contrary contained in this Agreement or any of the other Credit
Documents, (x) only the Overadvance Term Lender shall have any
obligation to fund an Overadvance Term Loan and (y) prior to any date
on which the Overadvance Term Loan Amount is reduced to zero pursuant
to the initial proviso to this paragraph (d), the Revolving Lenders
shall have no obligation whatsoever to make any Revolving Loan or other
extension of credit under this Agreement to the extent that,
immediately
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before or after giving effect to such Revolving Loan or extension of
credit, Excess Availability is less than $10,000,000, less
(e) the aggregate amount of the Borrowers' allowed
professional fees and disbursements to which the Postpetition
Obligations and the Prepetition Obligations may be subordinated
pursuant to the Interim Financing Order and the Permanent Financing
Order following a Default or an Event of Default;
provided, that so long as the LFC Funds Administrator has delivered a
current Borrowing Base Certificate to the Agent in accordance with the
requirements of Section 7.2, the Agent may rely on such Borrowing Base
Certificate for purposes of computing the amounts referred to in
clauses (b) and (c) above.
In addition, the Agent, in the exercise of its Permitted Discretion,
may (i) establish and increase or decrease reserves against Eligible
Accounts Receivable and Eligible Inventory, (ii) reduce the advance
rates provided for in this definition, or restore such advance rates to
any level equal to or below the advance rates in effect as of the date
of this Credit Agreement, and (iii) impose additional restrictions (or
eliminate the same) to the standards of eligibility set forth in the
definitions of "Eligible Accounts Receivable" and "Eligible Inventory."
Notwithstanding anything herein to the contrary, on and subsequent to
the close of the Sale/Leaseback Transaction, the Agent will not
increase the advance rates without receiving prior consent of the
Majority Term Lenders and the Overadvance Term Lender.
1.3 Section 4.7B of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
4.7B No Permitted Prepayment of Overadvance Term Loan.
Until payment in full of all Postpetition Obligations in
respect of Revolving Loans, Term Loans and Letter of Credit Obligations
and termination of the Revolving Commitments pursuant to the provisions
hereof, and except as provided in Article 2C with respect to the
repayment of any Overadvance Term Loans in the event that Excess
Availability is equal to or greater than $18,000,000 for five (5)
consecutive Business Days, the Borrowers may not prepay or make any
other payment or distribution of any kind (in cash, securities or
otherwise but excluding payments of accrued and unpaid interest, fees
and expenses) in respect of or in connection with the Overadvance Term
Loan at any time in whole or in part and all such principal amounts
otherwise distributable in respect of or in connection with the
Overadvance Term Loan shall be paid to the Agent for allocation to the
Postpetition Obligations in respect of Revolving Loans, Letters of
Credit Obligations and Term Loans as provided herein until all such
obligations are indefeasibly paid in full in cash and the Revolving
Commitments are fully terminated.
1.4 Section 7.2(a) of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
The Borrowers shall also deliver a copy of each Borrowing Base
Certificate to the Overadvance Term Lender on or prior to the times
required for such delivery to the Agent hereunder.
1.5 Section 9.2B of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
9.2B Acceleration of Postpetition Obligations in Respect of Overadvance
Term Loan
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Upon the earlier of (i) the Overadvance Maturity Date or (ii)
the occurrence and during the continuance of any Event of Default under
Section 9.1(a), by reason of the Borrowers' failure to make any payment
of interest on the Overadvance Term Loan when the same shall become
payable, then, without prejudice to the rights of the Agent or
Overadvance Term Lender to enforce its claims against the Borrowers,
upon notice from the Overadvance Term Lender to the LFC Funds
Administrator and the Agent, all Postpetition Obligations in respect of
the Overadvance Term Loan shall be immediately due and payable without
presentment, demand, protest or any other action or obligation of the
Agent or Overadvance Term Lender; provided, that, notwithstanding the
foregoing, the Overadvance Term Lender may not accelerate the maturity
of the Overadvance Term Loan pursuant to this Section 9.2B nor exercise
any rights or remedies with respect hereto nor cause the Agent to
exercise any rights or remedies on behalf of the Overadvance Term
Lender with respect hereto (other than to enforce its rights under
Article 2C or Section 4.11(a) in accordance with the terms hereof)
until all Postpetition Obligations owing to the Revolving Lenders and
the Term Lenders have been indefeasibly paid in full and the Revolving
Commitments and Term Commitments have been terminated. In addition, the
Overadvance Term Lender, acting in its capacity as Overadvance Term
Lender agrees that it shall be bound by all, and shall not object to
any, modifications, extensions of maturity and amendments to the Credit
Agreement executed by the Agent, Lenders, Majority Lenders and/or
Majority Term Lenders (as applicable) and that none of the same shall
require advance notice to, or the consent of, any Overadvance Term
Lender; provided, however, that no such modification, extension, waiver
or amendment shall (a) extend the maturity date of any portion of the
principal amount of or interest or fees payable to the Overadvance Term
Lender, (b) reduce the principal amount of or the rate of interest or
fees payable on the Overadvance Term Loan, (c) release all or
substantially all of the Collateral, (d) alter, amend or otherwise
impair the lien granted hereunder to the Overadvance Term Lender or the
priority thereof or any priority granted to the Overadvance Term Lender
under section 364 of the Bankruptcy Code or the Amendment Approval
Order, (e) alter, amend or otherwise impair the Overadvance Term
Lender's rights under the Amendment Approval Order, or (f) amend
Article 2C of this Section 9.2(B).
2. CONDITIONS PRECEDENT.
This Amendment becomes effective upon satisfaction of the
following conditions:
2.1 AMENDMENT APPROVAL ORDER. This Amendment has been approved by
the Bankruptcy Court pursuant to an order (the "Amendment Approval Order"),
which order is in full force and effect and has not been reversed, modified,
amended, appealed or stayed. The Agent shall have been satisfied with the form
and substance (and the timing of the notice) of the motion for the entry of the
Amendment Approval Order. In addition, each signatory hereto shall have been
satisfied with the form and substance of the Amendment Approval Order.
2.2 DOCUMENTS. The Agent has received all of the following, each
duly executed and dated as of the Closing Date (or such other date as is
satisfactory to the Agent) in form and substance satisfactory to the Agent.
(A) TWELFTH AMENDMENT. Ten copies of this Amendment executed
by the LFC Funds Administrator, the Borrowers, the Agent and all Lenders; and
(B) OTHER. Such other documents as the Agent may reasonably
request.
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3. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers represents and warrants to the Agent and each
Lender that, after giving effect to this Amendment or any part of this
Amendment:
3.1 REPRESENTATIONS AND WARRANTIES. 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).
3.2 EVENTS OF DEFAULT. No Default or Event of Default has occurred
which has not been waived (or, in the case of an Event of Default, cured) under
the terms of the Credit Agreement.
3.3 ENFORCEABILITY. Upon approval by the Bankruptcy Court (as
contemplated by SECTION 2.1), this Amendment and the Credit Agreement, as
amended by this Amendment, will constitute legal, valid and binding obligations
of the LFC Funds Administrator and each of the Borrowers and will be enforceable
against such Persons in accordance with their respective terms.
3.4 CONSENTS. 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 (as
contemplated by SECTION 2.1), except such consents and approvals as have been
obtained.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS.
4.1 REFERENCES. Upon the effectiveness of this Amendment, or any
part 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 by this Amendment or
any part of this Amendment.
4.2 RATIFICATION. Except as expressly set forth in this Amendment,
all of the terms and conditions of the Credit Agreement and the other Credit
Documents remain in full force and effect and are ratified and confirmed in all
respects. The execution and delivery of this Amendment by the Agent and each of
the Lenders in no way obligates 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.
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5. GOVERNING LAW.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT IS
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND DECISIONS OF THE
STATE OF NEW YORK.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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6. HEADINGS; COUNTERPARTS.
Section headings in this Amendment are included for convenience of
reference only and do not constitute a part of this Amendment for any other
purpose. 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.
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/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity and
it its capacity as the LFC Funds
Administrator
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE INCORPORATED, a Delaware
corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX SHOPPING SERVICE, a Florida
corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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XXXXXX FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By: /s/
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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AGENT:
BT COMMERCIAL CORPORATION, in its capacity
as Agent
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Principal
---------------------------------------
REVOLVING LENDERS:
BT COMMERCIAL CORPORATION, a Delaware
corporation in its respective capacities as
Revolving Lender and Collateral Agent
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Principal
---------------------------------------
FINOVA CAPITAL CORPORATION, in its capacity
as Revolving Lender
By: /s/ XXXXX XXXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------------
Title: AVP
---------------------------------------
XXXXXX FINANCIAL, INC., in its capacity as
Revolving Lender
By: /s/ XXXX XXXX
--------------------------------------
Name: Xxxx Xxxx
--------------------------------------
Title: SVP
--------------------------------------
LASALLE NATIONAL BANK, in its capacity as
Revolving Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Sr. VP
--------------------------------------
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TRANSAMERICA BUSINESS CREDIT CORPORATIONN,
in its capacity as Revolving Lender
By: /s/
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
GMAC BUSINESS CREDIT L.L.C.
By: /s/
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
OVERADVANCE TERM LENDER:
M.D. SASS CORPORATE RESURGENCE PARTNERS,
L.P., as Overadvance Term Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
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