EXHIBIT 10.61
TENTH AMENDMENT AND CONSENT TO POSTPETITION
CREDIT AGREEMENT
THIS TENTH AMENDMENT AND CONSENT TO POSTPETITION CREDIT AGREEMENT, dated
as of May 14, 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.
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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 3 is satisfied by
the Borrowers (the "CLOSING Date"), the Credit Agreement is amended as follows:
1.1 Section 1.1 of the Credit Agreement is amended by adding the
following definition to such Section in proper alphabetical order:
BULK SALE TRANSACTION means the transactions contemplated in that
certain Agreement of Sale dated as of _________, 1999 among certain of
the Borrowers, Xxxxx Realty, LP, Xxxxxx-Xxxxx Capital Real Estate Fund
II, L.P., Xxxxxx-Xxxxx Real Estate Fund II, L.P. and Xxxxxx-Xxxxx
Parallel Fund II, L.P.
1.2 Section 1.1 of the Credit Agreement is further amended by deleting
the definition of "EXPIRATION DATE" in its entirety and replacing it as follows:
EXPIRATION DATE means the earlier of (i) December 31, 1999 and
(ii) the date on which this Credit Agreement is terminated pursuant to
SECTION 9.2(B).
1.3 Section 1.1 of the Credit Agreement is further amended by deleting
the definition of "FIXED ASSET SUBLIMIT" in its entirety and replacing it as
follows:
FIXED ASSET SUBLIMIT means an amount equal to $36,000,000.00;
PROVIDED, that such amount shall be automatically and permanently reduced
on each date on which an Asset Disposition occurs with respect to any
real property, other fixed assets or any leasehold interest in real
property of any Borrower, in an amount equal to (i) in the case of Asset
Dispositions occurring in connection with the Bulk Sale Transaction, in
an amount equal to one hundred percent (100%) of the Net Cash Disposition
Proceeds thereof, (ii) in the case of any Asset Disposition of any real
property identified on SCHEDULE 1.1 hereof, the amount set forth opposite
such property on such Schedule, (iii) in the case of any Asset
Disposition of a fee interest in real property other than as provided in
clauses (i) and (ii), above, one hundred percent (100%) of the Net Cash
Disposition Proceeds thereof, and (iv) in the case of any Asset
Disposition of any other fixed assets (including without limitation
fixtures, furniture and equipment), twenty-five percent (25%) of the
Appraised Value thereof, provided that, no reduction of the Fixed Asset
Sublimit pursuant to this clause (iv) shall occur as a result of the
Borrowers' selling, transferring or otherwise disposing of obsolete or
worn out fixed assets with an aggregate Appraised Value of up to
$1,800,000; PROVIDED, FURTHER, that on and after September 1, 1999, the
Fixed Asset Sublimit shall be zero ($0). Additionally, the Fixed
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Asset Sublimit shall automatically become zero ($0) if at any time the
Borrowers' cease to be entitled to assume or reject executory contracts
and unexpired leases pursuant to section 365(d)(4) of the Bankruptcy
Code.
1.4 Section 1.1 of the Credit Agreement is further amended by deleting
the definition of "OVERADVANCE MATURITY DATE" in its entirety and replacing it
as follows:
OVERADVANCE MATURITY DATE means the earlier of (i) December
31, 1999 or (ii) the Expiration Date.
1.5 Section 1.1 of the Credit Agreement is further amended by deleting
the definition of "REVOLVING LINE OF CREDIT" in its entirety and replacing it as
follows:
REVOLVING LINE OF CREDIT means the aggregate revolving line of
credit extended pursuant to this Credit Agreement by the Revolving
Lenders to the Borrowers for Revolving Loans and Letters of Credit, in an
aggregate principal amount at any time of up to $125,000,000 less, on and
after the Bulk Sale Transaction closing date, the Net Cash Disposition
Proceeds received from the Bulk Sale Transaction, as such amount may be
reduced from time to time pursuant to the terms and provisions hereof.
1.6 Section 8.1 of the Credit Agreement is amended by deleting such
section in its entirety and replacing it as follows:
8.1 MINIMUM EBITDA
At the end of the period beginning on April 1, 1999 and
ending on each of the days set forth below, EBITDA for such period shall
not be an amount not less than the following:
PERIOD END AMOUNT
---------- ------
June 30, 1999 $2,500,000
September 30, 1999 $7,000,000
1.7 The Credit Agreement is further amended by adding a new Schedule 1.1
thereto in the form set forth as EXHIBIT A hereto.
1.8 Annex I of the Credit Agreement is amended by replacing such annex
with the Annex I attached to this Amendment as EXHIBIT B.
1.9 Annex II of the Credit Agreement is amended by replacing such annex
with the Annex II attached to this Amendment as EXHIBIT C.
2. CONSENT.
2.1 REPAYMENT OF ORIGINAL TERM LOAN AND SECOND TERM LOAN; PURCHASE OF A
PORTION OF THE REVOLVING LOANS.
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(a) Upon the effectiveness of this Amendment and subject to the
terms and conditions hereof, the Agent and each Lender consents to the
payment by the Borrowers to Agent for distribution to the Original Term
Lenders and the Second Term Lenders on the Sale/Leaseback Transaction
closing date of the entire outstanding principal amount of the Original
Term Loan and the Second Term Loan, respectively, and all interest
accrued thereon through such date with the Net Cash Disposition Proceeds
received by the Borrowers from the Sale/Leaseback Transaction.
(b) On the Sale/Leaseback Transaction closing date, each Revolving
Lender also agrees that it will purchase by way of assignment from Silver
Oak Capital, L.L.C., in its capacity as a Revolving Lender ("Silver
Oak"), its Proportionate Share (calculated after giving effect to the
transactions described in this Section 2.1) of the aggregate unpaid
Revolving Lender Advances made by Silver Oak outstanding on the
Sale/Leaseback Transaction closing date, and all unpaid interest accrued
thereon, after giving effect to any payments made to Silver Oak with
respect to the Revolving Loans made from any Net Cash Disposition
Proceeds from the Sale/Leaseback Transaction remaining after the payments
referred to in subsection (a) above. Any such assignment shall be
consummated on the terms set forth in the form of Revolving Assignment
and Assumption Agreement attached as Exhibit G-1 of the Credit Agreement,
without the necessity of the execution of separate Revolving Assignment
and Assumption Agreements.
2.2 BULK SALE TRANSACTION. On or prior to the date of the hearing at
which the Borrowers will seek approval of the Bankruptcy Court to enter into the
Bulk Sale Transaction the Borrowers shall request the Agent to consent to the
Borrowers entering into such transaction, such consent shall not be unreasonably
withheld. At such time that the Agent provides the Borrowers with consent to
enter into the Bulk Sale Transaction, no further action will be required under
the Credit Agreement.
2.3 HOUSEHOLD AMENDMENT. The Agent and the Lenders hereby consent to the
amendment to the Household Merchant Agreement attached as EXHIBIT D hereto.
2.4 OTHER. Nothing in this Amendment should in any way be deemed (i) a
waiver of any Event of Default (other than as specifically set forth above) or
(ii) an agreement to forbear from exercising any remedies with respect to any
such Event of Default.
3. CONDITIONS PRECEDENT.
This Amendment becomes effective upon satisfaction of the
following conditions:
3.1 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)
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of the motion for the entry of the Amendment Approval Order. In addition, the
Agent shall have been satisfied with the form and substance of the Amendment
Approval Order.
3.2 FEES AND EXPENSES. The Agent and the Lenders shall have been paid a
closing fee in the amount of $200,000.
3.3 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) TENTH 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.
3.4 SALE/LEASEBACK TRANSACTION. The Agent shall have received evidence
satisfactory to it that (i) the Sale/Leaseback Transaction shall have closed on
the terms approved by the Agent and the Lenders, (ii) the Borrowers shall have
received Net Cash Disposition Proceeds of at least $59,000,000 from the
Sale/Leaseback Transaction and (iii) the Net Cash Disposition Proceeds from the
Sale/Leaseback Transaction shall have been paid to the Agent for distribution to
the Persons contemplated in SECTION 2.1 of this Amendment.
3.3 PAYMENT AND RELEASE LETTER. The Agent shall have received a payment
and release letter in form and substance satisfactory to the Agent and its
counsel executed by each Term Lender and by Silver Oak relating to the repayment
of the Loans contemplated under SECTION 2.1 of this Amendment.
4. 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:
4.1 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).
4.2 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.
4.3 ENFORCEABILITY. Upon approval by the Bankruptcy Court (as
contemplated by SECTIONS 3.1 AND 3.2), this Amendment and the Credit Agreement,
as amended by this Amendment, will constitute legal, valid and
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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.
4.4 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
SECTIONS 3.1 AND 3.2), except such consents and approvals as have been obtained.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
5.1 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.
5.2 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.
6. 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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7. 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/ 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
----------------------------------
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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 X. 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
----------------------------------
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XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
----------------------------------
XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
----------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
----------------------------------
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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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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/ X. X. XXXXX
----------------------------------
Name: X. X. Xxxxx
----------------------------------
Title: SVP
----------------------------------
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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EXHIBIT A TO TENTH AMENDMENT
SCHEDULE I
TO
POSTPETITION CREDIT AGREEMENT
DATED AS OF SEPTEMBER 5, 1997
FIXED ASSET SUBLIMIT REDUCTIONS FOR SELECTED PROPERTIES
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EXHIBIT B TO TENTH AMENDMENT
ANNEX I
TO
POSTPETITION CREDIT AGREEMENT
DATED AS OF SEPTEMBER 5, 1997
LIST OF REVOLVING LENDERS/REVOLVING COMMITMENT
AMOUNTS; AND APPLICABLE LENDING OFFICES
1. BT COMMERCIAL CORPORATION
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $41,000,000
DOMESTIC LENDING OFFICE: 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
LIBOR LENDING OFFICE: 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
2. LA SALLE NATIONAL BANK
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $23,000,000
DOMESTIC LENDING OFFICE: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
LIBOR LENDING OFFICE: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
3. XXXXXX FINANCIAL, INC.
000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $22,000,000
DOMESTIC LENDING OFFICE: 000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
LIBOR LENDING OFFICE: 000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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4. TRANSAMERICA BUSINESS CREDIT CORPORATION
0000 X. Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $16,000,000
DOMESTIC LENDING OFFICE: 0000 X. Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
LIBOR LENDING OFFICE: 0000 X. Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
5. FINOVA CAPITAL CORPORATION
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $23,000,000
DOMESTIC LENDING OFFICE: 000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
LIBOR LENDING OFFICE: 000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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EXHIBIT C TO TENTH AMENDMENT
ANNEX II
TO
POSTPETITION CREDIT AGREEMENT
DATED AS OF SEPTEMBER 5, 1997
LIST OF TERM LENDERS AND TERM COMMITMENTS COMMITMENT
AMOUNTS
ORIGINAL TERM LENDERS:
1. NONE (PAID IN FULL)
SECOND TERM LENDERS:
1. NONE (PAID IN FULL)
OVERADVANCE TERM LENDER:
1. M.D. SASS CORPORATE RESURGENCE
PARTNERS, L.P.
00 Xxx Xxxx Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Term Commitment Amount: $10,000,000
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