EXHIBIT NO. 10.68
FOURTEENTH AMENDMENT TO POSTPETITION
CREDIT AGREEMENT AND ADOPTING AGREEMENT
THIS FOURTEENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT AND ADOPTING
AGREEMENT, dated as of December 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 "EXISTING BORROWERS"),
XXXXXX FURNITURE COMPANY OF MASSACHUSETTS, INC., a Massachusetts corporation
(the "NEW BORROWER"; and collectively with the Existing Borrowers, 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 (as the same may be further 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 Existing 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 3 is satisfied
by the Borrowers (the "CLOSING DATE"), the Credit Agreement is amended as
follows:
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1.1 The Credit Agreement is amended by adding New Borrower as a
"Borrower" thereunder. Upon the effectiveness of this Amendment, all
references to "Borrower" contained in the Credit Agreement shall be
deemed to refer to each of the Existing Borrowers and New Borrower,
collectively.
1.2 Parts 6.1, 6.9, 6.10, [OTHERS?] of Schedule B to the Credit
Agreement are supplemented by adding the items set forth on Annex I
hereto relating to New Borrower.
2. ADOPTION AND CONFIRMATION.
2.1 CREDIT AGREEMENT AND NOTES. By its execution and delivery of
this Amendment, New Borrower hereby confirms that (i) upon the
effectiveness of this Amendment it will become a "Borrower" under the
Credit Agreement and each of the Notes, subject to all of the
covenants, undertakings, liabilities and obligations of the Borrowers
contained therein, including the joint and several obligations of the
Borrowers with respect to the Postpetition Obligations as further
provided in SECTION 11.16 of the Credit Agreement and (ii) all of the
representations and warranties contained in the Credit Agreement that
are applicable to it as a Borrower are true and correct as of the date
hereof after giving effect to this Amendment.
2.2 POST-PETITION SECURITY AGREEMENT. By its execution and
delivery of this Amendment, New Borrower hereby confirms that (i) upon
the effectiveness of this Amendment it will become a "Grantor" under
and as defined in the Post-Petition Security Agreement, subject to all
of the covenants, undertakings, liabilities and obligations of the
Grantors contained therein, (ii) all of the representations and
warranties contained in the Post-Petition Security Agreement that are
applicable to it as a Grantor are true and correct as of the date
hereof after giving effect to this Amendment and (iii) upon the
effectiveness of this Amendment, it grants to Collateral Agent, on
behalf and for the benefit of the Secured Parties, to secure all the
Secured Obligations a lien upon and security interest in, all of its
right, title and interest in, to and under the following: (A) Accounts;
(B) Chattel Paper; (C) Contracts; (D) Documents; (E) Equipment;
(F) General Intangibles; (G) Instruments; (H) Inventory; (I) Real
Estate; (J) all other of its goods and property whether tangible or
intangible, real, personal or mixed, whether now owned or hereafter
acquired by it, wherever located, (K) all Proceeds of each of the
foregoing and all accessions to, substitutions and replacements for,
and rents profits and products of, each of the foregoing, and (L) all
property of New Borrower held by any Secured Party, including, without
limitation, all property of every description, now or hereafter in the
possession or custody of or in transit to such Secured Party for any
purpose, including safekeeping, collection or pledge, for the account
of New Borrower, or as to which New Borrower may have any right or
power (all capitalized terms set forth in this subsection (iii), unless
otherwise defined herein, shall have the meaning assigned to such term
in the Post-Petition Security Agreement).
2.3 POST-PETITION PLEDGE AGREEMENT.
(a) On the Closing Date, Exhibit A to the Post-Petition
Pledge Agreement is amended and restated in its entirety in the
form set forth as Annex II hereto.
(b) By its execution and delivery of this Amendment, New
Borrower hereby confirms that (i) upon the effectiveness of this
Amendment it will become a "Borrower" and "Pledgor" under and as
defined in the Post-Petition Pledge Agreement, subject to all of
the covenants, undertakings, liabilities and obligations of the
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Borrowers and Pledgors contained therein, (ii) all of the
representations and warranties contained in the Post-Petition
Pledge Agreement that are applicable to it as a Borrower or
Pledgor thereunder are true and correct as of the date hereof
after giving effect to this Amendment and (iii) upon the
effectiveness of this Amendment, it pledges to the Collateral
Agent, on behalf and for the benefit of the Secured Parties, to
secure the Liabilities all of the following property and
interests in property: (a) all shares of capital stock of each
of the Issuers now or at any time or times hereafter owned by it
(collectively, the "Pledged Stock"); (b) all warrants, options
and other rights to acquire, and rights in and to, the capital
stock of the respective Issuers now or at any time or times
hereafter owned by it (collectively, the "Rights"); (c) all
other property now or at any time or times hereafter received,
receivable or otherwise distributed in respect of or in exchange
or substitution for any or all of the Pledged Stock and/or the
Rights, and all of its rights thereto, including, without
limitation, all dividends, cash and other payments and
distributions of any kind whatsoever; (d) the Pledged Debt and
the instruments evidencing the Pledged Debt, and all interest,
cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Debt; (e) all
additional indebtedness from time to time owed to it by any
obligor of the Pledged Debt or any other Person and the
instruments evidencing such indebtedness, and all interest,
cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such indebtedness; and (f) all
proceeds of all of the foregoing. (All capitalized terms set
forth in this subsection (iii), unless otherwise defined herein,
shall have the meaning assigned to such term in the
Post-Petition Pledge Agreement after giving effect to this
Amendment.)
(c) By its execution and delivery of this Amendment, [OWNER
OF THE CAPITAL STOCK OF NEW BORROWER] hereby confirms that upon
the effectiveness of this Amendment it has pledged the capital
stock of New Borrower identified on Annex II to the Collateral
Agent, on behalf and for the benefit of the Secured Parties, to
secure the Liabilities (as defined in the Post-Petition Pledge
Agreement) and that such capital stock constitutes Pledged Stock
(as defined in the Post-Petition Pledge Agreement).
2.4 BORROWING AGENCY AGREEMENT. Upon the effectiveness of this
Amendment, New Borrower shall become a party to that certain Borrower
Agency Agreement dated as of September 5, 1997 among LFC, as borrowing
agent, and the Existing Borrowers, and appoints LFC as its borrowing
agent thereunder, subject to the terms of such agreement.
2.5 POST-PETITION COLLATERAL AGENCY AGREEMENT. Upon the
effectiveness of this Amendment, New Borrower acknowledges and consents
to the Post-Petition Collateral Agency Agreement.
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) of the motion for the entry
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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 EXPENSES. The Agent shall have been reimbursed for all fees and
expenses incurred by the Agent in connection with this Amendment.
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) FOURTEENTH AMENDMENT. Ten copies of this Amendment executed by
the LFC Funds Administrator, the Borrowers, the Agent and all Lenders;
(b) CERTIFICATE OF INCORPORATION, ETC. The Certificate of
Incorporation of New Borrower certified by the appropriate Secretary of State as
of a recent date, together with a good standing certificate from such Secretary
of State and a good standing certificate from the Secretaries of State of each
other State in it is required to be qualified to transact business;
(c) CERTIFIED RESOLUTIONS, ETC. A certificate of the Secretary or
Assistant Secretary of New Borrower certifying (i) the names and true signatures
of its officers authorized to sign this Amendment, (ii) its By-Laws and (iii)
resolutions of its Board of Directors approving and authorizing the execution,
delivery and performance of this Amendment;
(d) OPINION OF COUNSEL. An opinion of counsel to New Borrower;
(e) UCC MATTERS. Satisfactory reports of UCC searches with respect
to New Borrower and such UCC-1 financing statement signed by New Borrower as
debtor naming the Collateral Agent as secured party as the Agent my require;
(f) PLEDGED STOCK. For delivery to the Collateral Agent, the
original stock certificates evidencing the capital stock of New Borrower pledged
pursuant to the Post-Petition Pledge Agreement, together with undated stock
powers duly executed in blank in connection therewith; and
(g) OTHER. Such other documents as the Agent may reasonably
request.
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4. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers represents and warrants to the Agent and each
Lender that, after giving effect to 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 SECTION 3.1), 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.
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
SECTION 3.1), 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, each
reference in the Credit Agreement and the Post-Petition Pledge 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"
or "Post-Petition Pledge Agreement" shall mean and be a reference to the Credit
Agreement or the Post-Petition Pledge Agreement, as the case may be, as amended
by 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.
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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/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity
and it its capacity as the LFC Funds
Administrator
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE INCORPORATED, a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
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XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX SHOPPING SERVICE, a Florida
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
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XXXXXX FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------
Title: SVP/Chief Financial Officer
-----------------------------------
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XXXXXX FURNITURE COMPANY OF MASSACHUSETTS,
INC., a Massachusetts corporation
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxxx X. XxXxxxxx
-------------------------------------
Title: SVP/Chief Financial Officer
------------------------------------
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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/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Authorized Signer
-----------------------------------
XXXXXX FINANCIAL, INC., in its capacity
as Revolving Lender
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------
Title: Assistant Vice President
-----------------------------------
LA SALLE NATIONAL BANK ASSOCIATION, 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/ X. X. XXXXX
---------------------------------------
Name: X. X. Xxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
GMAC BUSINESS CREDIT L.L.C., in its
capacity as Revolving Lender
By: /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
OVERADVANCE TERM LENDER:
M.D. SASS CORPORATE RESURGENCE PARTNERS,
L.P.
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
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