WAIVER TO POST-PETITION LOAN AND GUARANTY AGREEMENT
10.(i)(G)(4)
WAIVER TO
POST-PETITION LOAN AND GUARANTY AGREEMENT
WAIVER TO POST-PETITION LOAN AND GUARANTY AGREEMENT, dated November 7, 1997
(this "Waiver"), among XXXXXXXXXX XXXX & CO., INCORPORATED, an Illinois
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corporation and a debtor and debtor in possession ("Borrower Representative"),
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XXXXXXXXXX XXXX HOLDING CORP., a Delaware corporation and a debtor and debtor in
possession ("Parent" or "Guarantor"), as Guarantor, the other Guarantors
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signatory hereto (together with Parent and the Borrower Representative, the
"Credit Parties"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
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(in its individual capacity, "GE Capital"), for itself, as Lender, and as Agent
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(the "Agent") for Lenders, and the other Lenders signatory hereto.
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RECITALS
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WHEREAS, the Borrower Representative, the Guarantors, the Lenders and the
Agent are parties to that certain Post-Petition Loan and Guaranty Agreement,
dated as of July 8, 1997 (as amended by the terms of the Waiver and First
Amendment to Post-Petition Loan and Guaranty Agreement dated July 30, 1997 and
as further amended, supplemented or modified, the "Loan Agreement"). The
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Borrower Representative and the Guarantors have requested that the Lenders agree
to waive, for the limited purposes set forth herein, certain provisions of the
Loan Agreement. The Borrower Representative, the Guarantors, the Lenders and
the Agent have agreed, upon the terms and conditions specified herein, to waive
such provisions as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms and Interpretation.
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(a) The capitalized terms used herein which are defined in the Loan
Agreement, shall have the respective meanings assigned to them in the Loan
Agreement except as otherwise provided herein or unless the context otherwise
requires.
(b) 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.
(c) No provision in this Waiver shall be interpreted or construed against
any Person because that Person or its legal representative drafted such
provision
SECTION 2. Waiver.
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(a) As of the effective date of this Waiver, Lenders hereby waive the
provisions of Section 6.3 of the Loan Agreement, for the limited purpose of
permitting the Borrower Representative to grant one or more Liens in favor of
any Person acting as a liquidation agent (the "Liquidation Agent") in connection
with the liquidation and sale of certain of the assets of the Borrower
Representative (the "Store Liquidations") pursuant to the terms of a valid and
enforceable order of the Bankruptcy Court entered in respect of that certain
Motion of Debtors and Debtors In Possession for an Order Authorizing Xxxxxxxxxx
Xxxx & Co., Incorporated to (a) Close Certain Stores, (b) Conduct Store Closing
Sales and (c) Enter Into an Agency Agreement with a Liquidation Agent, dated
October 17, 1997 (the "Motion"); provided, however, that (i) any such Lien shall
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only extend to the Inventory that is located at one of the stores or service
centers set forth on the list attached as Exhibit A to the Motion (the "Closed
Locations") on the date the physical inventory is conducted in connection with
the liquidation sale contemplated by the Motion and shall only secure the fees
and obligations owed to the Liquidation Agent by the Borrower Representative
pursuant to the Motion and (ii) the Borrower Representative acknowledges and
agrees that it is prohibited from, and shall not transfer Inventory to the
Closed Locations from any facility owned or operated by any Credit Party or
otherwise cause other Inventory to be located or stored at any of the Closed
Locations which has an aggregate book value in excess of $100,000.
(b) The Lenders agree that the Inventory sold pursuant to the Store
Liquidations shall not be included in calculating the amount of assets permitted
to be sold by the Borrower Representatives and its Subsidiaries pursuant to
Section 6.4 of the Loan Agreement during any fiscal year.
SECTION 3. Representations and Warranties True; No Default or Event of
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Default. The Credit Parties represent and warrant to the Agent and the Lenders
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that on the date of and after giving effect to the execution and delivery of
this Waiver (a) the representations and warranties set forth in the Loan
Agreement are true and correct in all material respects on the date hereof as
though made on and as of such date (unless any such representation or warranty
expressly relates to an earlier date); and (b) neither any Default nor Event of
Default has occurred and is continuing as of the date hereof.
SECTION 4. Reference to this Waiver and Effect on Loan Documents.
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(a) From and after the date hereof, each reference in the Loan Agreement
(including in any Exhibit thereto) to "this Agreement," "hereunder," "herein" or
words of like import shall mean and be a reference to the Loan Agreement, as
affected hereby.
(b) From and after the date of this Waiver, each reference in the Loan
Documents to the Loan Agreement shall mean and be a reference to the Loan
Agreement, as affected hereby.
(c) The Loan Agreement, the Notes and the other Loan Documents, as
affected hereby, shall remain in full force and effect and the Loan Documents
are hereby ratified and confirmed in all respects.
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(d) The effectiveness of the waiver evidenced by Section 2 hereof, shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders or the Agent under the Loan Agreement, or
constitute a waiver of any other provision of the Loan Agreement or any other
Loan Document.
SECTION 5. Effectiveness. This Waiver shall become effective upon
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receipt by the Agent of executed counterparts of this Waiver from the requisite
number of Lenders that comprise the Requisite Lenders.
SECTION 6. Governing Law; Binding Effect. In all respects, including all
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matters of construction, validity and performance, this Waiver shall be governed
by, and construed and enforced in accordance with, the internal laws of the
State of New York (without regard to conflict of law provisions) and any
applicable laws of the United States of America, and shall be binding upon the
parties hereto and their respective successors and permitted assigns.
SECTION 7. Execution in Counterparts. This Waiver may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 8. Consent of Guarantors. By their execution and delivery of this
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Waiver, each Guarantor hereby consents to all of the terms and provisions of
this Waiver and ratifies and confirms that each of the Loan Documents to which
it is a party remains in full force and effect and enforceable in accordance
with their respective terms.
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IN WITNESS WHEREOF, this Waiver has been duly executed as of the date first
written above.
BORROWER:
XXXXXXXXXX XXXX & CO., INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
LECHMERE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
AMERICAN DELIVERY SERVICE COMPANY
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President, Secretary
and Assistant Treasurer
CONTINENTAL TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President and Assistant
Treasurer
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JRI DISTRIBUTING, INC.
STANDARD T CHEMICAL COMPANY, INC.
WFL REALTY, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President and Secretary
M-W PRESTRESS, INC.
MW DIRECT GENERAL, INC.
MW DIRECT LIMITED, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Secretary
XXXXXXXXXX XXXX INTERNATIONAL,
INC.
MPI, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
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BARRETWARD PROPERTIES CO., INC.
BRANDYWINE DC, INC.
BRANDYWINE PROPERTIES, INC.
BRETTWARD PROPERTIES CO., INC.
FIRST MONT CORPORATION
FOURTH WYCOMBE PROPERTIES,
INC.
GABEWARD PROPERTIES
CORPORATION
GARDEN GROVE DEVELOPMENT
CORPORATION HUGA REALTY INC.
JOSHWARD PROPERTIES
CORPORATION
LECHMERE DEVELOPMENT
CORPORATION
M-W FAIRFAX PROPERTIES, INC.
M-W PROPERTIES CORPORATION
M-W RESTAURANTS REALTY
CORPORATION
MARCOR HOUSING SYSTEMS, INC.
MARYWARD PROPERTIES
CORPORATION
MF NEVADA INVESTMENTS, INC.
MICHAELWARD PROPERTIES CO.,
INC.
XXXXXXXXXX XXXX
DEVELOPMENT CORPORATION
XXXXXXXXXX XXXX LAND
CORPORATION
XXXXXXXXXX XXXX PROPERTIES
CORPORATION
XXXXXXXXXX XXXX REALTY
CORPORATION
MW LAND CORPORATION
NATIONAL HOMEFINDING SERVICE,
INC.
998 MONROE CORPORATION
PAULWARD PROPERTIES CO., INC.
ROBERTWARD PROPERTIES
CORPORATION
SACWARD PROPERTIES, INC.
SECOND MONT CORPORATION
7TH & XXXXXXX CORPORATION
SEVENTH MONT CORPORATION
618 CORPORATION
619 CORPORATION
THE 535 CORPORATION
THIRD WYCOMBE PROPERTIES, INC.
2825 DEVELOPMENT CORPORATION
2825 REALTY CORPORATION
UNIVERSITY AVENUE
MARKETPLACE, INC.
WFL DEVELOPMENT CORPORATION
WYCOMBE PROPERTIES, INC.
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By: /s/ G. Xxx Xxxxxx
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Name: G. Xxx Xxxxxx
Title: Vice President and Secretary
XXXXX FURNITURE COMPANIES, INC.
XXXXXXXXXX XXXX SECURITIES,
INC.
R M P DEVELOPMENT CORPORATION
By: /s/ G. Xxx Xxxxxx
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Name: G. Xxx Xxxxxx
Title: Secretary
XXXXXXXXXX XXXX HOLDING
CORP.
By: /s/ G. Xxx Xxxxxx
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Name: G. Xxx Xxxxxx
Title: Assistant Secretary
JEFFERSON STORES, INC.
By: /s/ G. Xxx Xxxxxx
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Name: G. Xxx Xxxxxx
Title: Vice President and Treasurer
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AGENT AND AS LENDER:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Its Authorized Signatory
LENDERS:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
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Name: Xxxxx Xxxx Tat
Title: Vice President
BANKAMERICA BUSINESS CREDIT,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANKBOSTON RETAIL FINANCE INC.
(f/k/a GBFC, INC.)
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Director
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BANQUE PARIBAS
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Assistant Secretary
CITIBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxxx, M.D.
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Name: Xxxx X. Xxxxxxxxx, M.D.
Title: Structured Finance Division, 0208389
CITICORP USA, INC.
By: /s/ Xxxx X. Xxxxxxxxx, M.D.
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Name: Xxxx X. Xxxxxxxxx, M.D.
Title: Structured Finance Division, 0208389
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President & Portfolio Manager
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XXXXXXX XXXXX CREDIT PARTNERS
L.P.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
GREENTREE FINANCIAL SERVICING
CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Vice President
IBJ XXXXXXXX BUSINESS CREDIT
CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX NATIONAL LIFE
INSURANCE COMPANY
By: PPM FINANCE, INC.
Its Attorney-in-fact
By:_____________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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NATIONAL CITY COMMERCIAL
FINANCE, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Account Officer
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