EXHIBIT NUMBER 10.65
ELEVENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT, dated as of
July 23, 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 Section 1.1 of the Credit Agreement is amended by deleting the
definition of "FIXED ASSET SUBLIMIT" in its entirety and replacing it as
follows:
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FIXED ASSET SUBLIMIT means an amount equal to $17,135,438;
PROVIDED, that such amount shall be automatically and permanently
reduced on each date on which either (A) an Asset Disposition occurs
with respect to any real property, other fixed assets or any leasehold
interest in real property of any Borrower or (B) any Borrower rejects
any lease of real property or assumes any lease of real property
without procuring contemporaneously a right to assign such lease, in an
amount equal to (i) in the case of any Asset Disposition of any real
property identified on SCHEDULE 1.1 hereof or in the event that any
Borrower rejects any lease of real property or assumes any lease of
real property without procuring contemporaneously a right to assign
such lease, the amount set forth opposite such property on such
Schedule, (ii) in the case of any Asset Disposition of a fee interest
in real property other than as provided in clause (i), above, one
hundred percent (100%) of the Net Cash Disposition Proceeds thereof,
and (iii) 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 (iii) 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 30, 1999, the Fixed Asset Sublimit
shall be zero ($0).
1.2 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 be an
amount not less than the following:
PERIOD END AMOUNT
---------- ------
June 30, 1999 $1,400,000
September 30, 1999 $4,400,000
1.3 The Credit Agreement is further amended by amending and restating
SCHEDULE 1.1 thereto in the form set forth as EXHIBIT A hereto.
1.4 Annex I of the Credit Agreement is amended by replacing such annex
with the Annex I attached to this Amendment as EXHIBIT 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, the Agent shall have been satisfied with
the form and substance of the Amendment Approval Order.
2.2 FEES AND EXPENSES. The Agent and the Lenders shall have been paid a
closing fee in the amount of $100,000.
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2.3 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) ELEVENTH 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. 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.
[THE 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/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity and
in 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
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XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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
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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
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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TRANSAMERICA BUSINESS CREDIT CORPORATION,
in its capacity as Revolving Lender
By: /s/
------------------------------
Name:
Title:
GMAC BUSINESS CREDIT L.L.C.
By: /s/
------------------------------
Name:
Title:
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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