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EXHIBIT 10.23.1
September 24, 1997
The Maxim Group, Inc. for Itself
And the Borrowers Identified on
The Signature Pages Hereto
000 XxxxXxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Executive Vice President/Finance
Re: Consent, Waiver and Amendment
Gentlemen:
Reference is made to the Credit Agreement, as amended (the "Credit
Agreement"), dated as of August 26, 1997, among The Maxim Group, Inc. ("Maxim"),
certain Subsidiaries of Maxim identified on the signature pages thereto, the
financial institutions who are or may become party thereto (the "Lenders"),
First Union National Bank, as Administrative Agent for the Lenders, NationsBank,
N.A., as Documentation Agent, and Fleet National Bank, as Co-Agent. Capitalized
terms used herein and not defined herein have the meanings ascribed thereto in
the Credit Agreement.
Maxim has indicated that: (a) it will offer to issue up to $100,000,000 in
aggregate principal amount of its Senior Subordinated Notes due 2007 (the
"Subordinated Notes"), pursuant to an Indenture (the "Indenture"), by and among
Maxim, all of the Subsidiaries of Maxim, as guarantors, and State Street Bank
and Trust Company, as Trustee; (b) each Subordinated Note will be guaranteed by
all of the Subsidiaries of Maxim, pursuant to the guarantee ("Guarantee") set
forth on such Subordinated Note; and (c) Maxim made a loan of approximately
$738,100 to X.X. Xxxxxx on September 19, 1997 (the "Employee Loan") in violation
of Sections 9.4 and 9.7 of the Credit Agreement. Maxim has further indicated
that it will use the proceeds of the offer and sale of the Subordinated Notes
to, among other things, (i) prepay the entire outstanding principal amount of
the Term Loan, together with accrued interest and all other fees or amounts, if
any, required to be paid in connection with such prepayment, (ii) repay certain
outstanding Revolver Loans, together with accrued interest and all other fees or
amounts, if any, required to be paid in connection with such repayment, so that
after giving effect to such repayment, the aggregate principal amount of all
outstanding Revolver Loans will equal or be less than $50,000,000, and (iii)
permanently reduce the aggregate Revolver Loan Commitment from $70,000,000 to
$50,000,000, so that after giving effect to the foregoing the Aggregate
Commitments under the Credit Facilities shall equal $80,616,438.36 (the "New
Commitment Amount"). Borrowers hereby represent and warrant to the Lenders that,
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September 24, 1997
Page 2
except for the items described in the next succeeding paragraph for which
consents, waivers or amendments have been requested, the offer and sale of the
Subordinated Notes and the anticipated use of the proceeds from the sale of the
Subordinated Notes, does not, and when consummated, will not, violate any term
or provision of the Credit Agreement or create a Default or Event of Default
thereunder.
The Borrowers have jointly and severally requested (A) the written approval
of Required Lenders to the terms and conditions of the Indenture (including the
forms of Subordinated Notes contained therein), (B) the written approval of the
Required Lenders to the terms and conditions of each Guarantee, (C) the
amendment of Section 8.1 of the Credit Agreement to increase the required ratio
of Total Debt to Total Capitalization contained therein from .55 to 1.0. to .60
to 1.0, (D) the amendment of Schedule 1.1, Section 1.1 (definition of "Borrowing
Base"), Section 2.1 and Section 2.5 of the Credit Agreement and Exhibit L (form
of Borrowing Base Certificate) and Exhibit D (form of Officer's Compliance
Certificate) to the Credit Agreement, in order to enable Borrowers to reduce the
aggregate Revolver Loan Commitment from $70,000,000 to $50,000,000, so that
after giving effect to the foregoing the Aggregate Commitments under the Credit
Facilities shall equal the New Commitment Amount, (E) an extension of the time
periods in which Maxim is required to obtain certain landlord agreements and
complete certain real property records searches, as set forth in that certain
letter agreement dated August 26, 1997 (the "Letter Agreement"), executed
pursuant to Section 4.2(f)(v) of the Credit Agreement by Maxim, on behalf of the
Borrowers, and the Administrative Agent, (F) a waiver of Section 9.10(b) of the
Credit Agreement in order to permit the Borrowers to be bound by the covenant
contained in Section 1009 of the Indenture, restricting the ability of Borrowers
to make certain distributions in respect to their capital stock, and (G) a
waiver of the provisions of Sections 9.4 and 9.7 of the Credit Agreement that
were violated by Maxim as a result of the Employee Loan. In addition, in order
to protect the respective interests of the Borrowers and the Lenders under the
Security Agreement and any Hedging Agreements entered into by Borrowers, the
Borrowers and each Lender signatory hereto, constituting Required Lenders, have
agreed to amend the Security Agreement in certain respects as hereinafter
provided.
Borrowers hereby represent and warrant to Administrative Agent and Lenders
that (i) the Debt of Maxim outstanding under the Credit Facilities constitutes
"Senior Indebtedness" (as such term is defined in the Indenture) and the Debt of
the Subsidiaries of Maxim outstanding under the Credit Facilities constitutes
"Guarantor Senior Indebtedness" (as such term is defined in the Indenture), and
(ii) X.X. Xxxxxx has repaid to Maxim the entire amount of the Employee Loan. In
reliance upon the representations, warranties and undertakings provided by each
of the Borrowers to the Administrative Agent and Lenders by which the Borrowers
have requested such approvals, waivers and amendments, each of the Lenders
signatory hereto, constituting Required Lenders, hereby:
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September 24, 1997
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(a) approves of the terms and conditions of the Indenture
(including the forms of Subordinated Notes and Guarantees contained therein) as
required under Section 9.1(j) and Section 9.2 of the Credit Agreement, and
approves of the form and terms of the negative pledge contained in the Indenture
as required under Section 9.10(a) of the Credit Agreement, provided that such
approvals are made in reliance upon the specific representations and warranties
of Maxim that, and each such approval, and each of the amendments set forth in
clauses (b) and (c) below shall be of no force or effect whatsoever unless, (x)
the form and substance of the final fully executed Indenture, including the
terms of the Subordinated Notes and the Guarantees contained therein (other than
the provisions contained therein relating to subordination, negative covenants,
financial covenants and events of default) will be substantially the same as set
forth in the draft of the Indenture dated September 17, 1997 (the "Indenture
Draft") (a copy of which is attached hereto), (y) the form and substance of the
subordination provisions contained in the final fully executed Indenture will be
the same as those set forth in the Indenture Draft, and (z) the negative
covenants, the financial covenants and the events of default contained in the
final fully executed Indenture will not be materially more restrictive to the
Company than as set forth in the Indenture Draft.
(b) agrees that Section 8.1 of the Credit Agreement be, and it
hereby is, amended by amending and restating said Section to read in its
entirety as follows:
"SECTION 8.1 Total Debt to Total Capitalization. As
of any fiscal quarter end, permit the ratio of (a)
Total Debt of Maxim and its Subsidiaries as of such
date to (b) the sum of (i) Consolidated Net Worth of
Maxim and its Subsidiaries plus (ii) Total Debt of
Maxim and its Subsidiaries, each as of such date, to
exceed a ratio of .60 to 1.0.";
(c) agrees that (i) Schedule 1.1 of the Credit Agreement be, and
it hereby is, amended by (1) reducing the aggregate Revolver Loan Commitment set
forth therein from $70,000,000 to $50,000,000, (2) reducing the Aggregate
Commitments under the Credit Facilities from $130,000,000 to the New Commitment
Amount, and (3) making a corresponding reduction in each Lender's Revolver Loan
Commitment based upon such Lender's actual share of the New Commitment Amount,
(ii) the definition of "Borrowing Base" in Section 1.1 of the Credit Agreement
be amended, and it hereby is, amended by deleting the figure "$70,000,000" that
appears in such definition and replacing it with the figure "$50,000,000," (iii)
Section 2.1 of the Credit Agreement be, and it hereby is, amended by deleting
the words and figure "seventy million dollars ($70,000,000)" that appear in the
eighth line of such Section and replacing them with the words and figure "fifty
million dollars ($50,000,000)," (iv) Section 2.5 of the Credit Agreement be, and
it hereby is, amended by deleting the figure "$70,000,000" that appears in each
such Section and replacing it with the figure "$50,000,000," (v) Exhibit D (form
of Officer's Compliance Certificate)
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September 24, 1997
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to the Credit Agreement be, and it hereby is, amended by deleting the Total Debt
to Total Capitalization ratio of ".55 to 1.0" contained in paragraph A(4) to
Schedule 1 to Exhibit D and replacing it with the ratio of ".60 to 1.0," and
(vi) Exhibit L (form of Borrowing Base Certificate) to the Credit Agreement be,
and it hereby is, amended by deleting the figure "$70,000,000" that appears in
paragraph 4 of Exhibit A to the Borrowing Base Certificate and replacing it with
the figure "$50,000,000"; provided, however, that none of the amendments
contained in this clause (c) shall become effective until such time as the sale
of the Subordinated Notes has been fully consummated, the aggregate principal
amount of all Revolver Loans then outstanding equals or is less than $50,000,000
and the Lenders have received all accrued interest and all other fees and
amounts, if any, required to be paid by Borrowers to Lenders under the Credit
Agreement in connection with the repayment in full of the Term Loan and any
Revolver Loans;
(d) agrees that the time period in which Maxim is required to
obtain certain landlord agreements and complete certain real property records
searches, as set forth in paragraph 2 and paragraph 3, respectively, of the
Letter Agreement, is hereby extended in each case from thirty (30) days to forty
(40) days;
(e) agrees that Section 4 of the Security Agreement be, and it
hereby is, amended by adding a new paragraph (g) thereto to read as follows:
"(g) Hedging Agreements. With respect to any Hedging Agreement
that is or becomes subject to a Security Interest hereunder:
(i) notwithstanding anything to the contrary contained in
Section 4(a)(ix)(A), 4(b)(iv), 7(a)(iv) or 8 of this
Agreement, each party to that Hedging Agreement may exercise
its right to designate an "Early Termination Date" under that
Hedging Agreement or otherwise terminate the transactions
governed by that Hedging Agreement prior to their respective
stated maturities without notice to or the consent of the
Administrative Agent or any Lender, provided that the market
value thereof would be computed and become payable using the
"Second Method and Market Quotation" basis as provided under
either the 1992 ISDA Master Agreement (Multi-Currency - Cross
Border) or the 1992 ISDA Master Agreement (Local Currency -
Single Jurisdiction) as published by the International Swap
Dealers Association, Inc. ("ISDA"), as reflected in that
Hedging Agreement, and if the
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September 24, 1997
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amount thereof would be payable to the Grantor, that amount
would be paid in accordance with the terms of this Agreement;
and
(ii) notwithstanding anything to the contrary contained in
Section 7(a)(iv) or 8 of this Agreement, the Administrative
Agent shall not have the right to sell, transfer, or assign
that Hedging Agreement upon the occurrence or continuance of
an Event of Default, but the only manner in which the
Administrative Agent may realize upon that Hedging Agreement
under Section 8 of this Agreement shall be to provide the
parties to that Hedging Agreement with notice the effect of
which would cause the transactions under that Hedging
Agreement to be terminated, the market value thereof to be
computed and to become payable using the "Second Method and
Market Quotation" basis as provided under either the 1992 ISDA
Master Agreement (Multi-Currency Cross Border) or the 1992
ISDA Master Agreement (Local Currency - Single Jurisdiction)
as published by the ISDA, as reflected in that Hedging
Agreement, and if the amount thereof would be payable to
Grantor, that amount would be paid in accordance with Sections
4(b)(ii) and 6(b) of this Security Agreement.";
(f) consents to the covenant contained in Section 1009 of the
Indenture, restricting the ability of the Borrowers to make certain
distributions in respect of their capital stock, and waives enforcement of
subsection (b) of Section 9.10 of the Credit Agreement with respect to the
Borrowers agreeing to be bound by said covenant contained in Section 1009 of the
Indenture;
(g) waives enforcement of Sections 9.4 and 9.7 of the Credit
Agreement with respect to the Employee Loan; and
(h) agrees that, upon the effectiveness of the amendments set
forth in clause (c) above, the maximum amount of its share of the New Commitment
Amount shall be the amount set forth opposite its name on the signature pages
hereto.
The approval in clause (a) of the immediately preceding paragraph
applies solely to the Default and Event of Default (1) under Sections 9.1 and
9.2 of the Credit Agreement that otherwise would result from the issuance of the
Subordinated Notes by Maxim and the issuance of the
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September 24, 1997
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Guarantees by certain Subsidiaries of Maxim without such approval, and (2) under
Section 9.10(a) of the Credit Agreement that would otherwise result from the
inclusion of the negative pledge provision in the Indenture without such
approval. The waiver in clause (f) of the immediately preceding paragraph
applies solely to the Default and Event of Default under Section 9.10(b) of the
Credit Agreement that otherwise would result from the agreement of the Borrowers
to be bound by the covenant contained in Section 1009 of the Indenture without
such waiver. The waiver in clause (g) of the immediately preceding paragraph
applies solely to the Default and Event of Default under Sections 9.4 and 9.7 of
the Credit Agreement that otherwise would exist without such waiver as a result
of the Employee Loan. Without limiting the foregoing sentence, each of the
Lenders expressly reserves any and all rights it may have under the Credit
Agreement or any other Loan Documents arising out of or in connection with any
Default or Event of Default thereunder and not specifically waived herein.
Except as expressly modified by this consent, waiver and amendment
agreement, the terms and provisions of the Credit Agreement, are hereby ratified
and confirmed and shall continue in full force and effect. Without limiting any
conditions to effectiveness set forth above, the consent, waivers and amendments
provided herein (1) are to be effective only upon receipt by the Administrative
Agent of an execution counterpart of this consent, waiver and amendment
agreement signed by the Required Lenders and by each of the Borrowers listed
below; and are conditioned upon the correctness of all representations and
warranties, and upon full compliance by each Borrower with each of the
undertakings and terms provided in any oral or written requests for this
consent, waiver and amendment agreement and in this consent, waiver and
amendment agreement itself, and (2) will be of no further force and effect if
Borrowers' fail to satisfy the conditions referred to in clauses (x), (y) and
(z) of the proviso above or fail to provide the Administrative Agent with a true
and complete copy of the fully-executed counterparts of the Indenture promptly
after the execution thereof by all parties thereto.
In consideration of the approvals, waivers and amendments granted by the
Required Lenders herein, each Borrower hereby agrees that it shall not enter
into or consent to any amendment of the Indenture (including, without
limitation, the forms of Subordinated Notes and Guarantees contained therein) on
or after the date hereof without the prior written consent of the Required
Lenders. Maxim hereby agrees that it shall promptly (and in any event within
five (5) Business Days), upon its becoming aware of or receiving notice of any
change in the Person designated or appointed as "Trustee" (as such term is
defined in the Indenture) under the Indenture, give notice to the Administrative
Agent and each Lender of such change. Each Borrower further agrees that the
failure of any Borrower to comply with the preceding sentences in this paragraph
shall be deemed to be an "Event of Default" under the Credit Agreement.
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September 24, 1997
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Please evidence your acknowledgment of and agreement to the foregoing by
executing this letter below in the place indicated.
Sincerely,
Maximum amount FIRST UNION NATIONAL BANK, as
of New Commitment Administrative Agent and Lender
Amount:
$35,000,000
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
---------------------
Title: Senior Vice President
---------------------
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September 24, 1997
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Each term of the foregoing consented to
as of September 24, 1997.
FLEET NATIONAL BANK, as Lender Maximum amount of
New Commitment Amount:
$25,000,000
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
--------------
Title: Vice President
--------------
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September 24, 1997
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Each term of the foregoing consented to
as of September 24, 1997.
NATIONSBANK, N.A., as Lender Maximum amount of
New Commitment Amount:
$25,000,000
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name:
-------------------
Title:
------------------
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September 24, 1997
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Each term of the foregoing consented to
as of September 24, 1997.
SUNTRUST NATIONAL, ATLANTA, as Lender Maximum amount of
New Commitment Amount:
$20,000,000
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Assistant Vice President
---------------------------
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Group Vice President
----------------------------
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September 24, 1997
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Accepted and agreed to as of
the date above first written:
THE MAXIM GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------------
Title: Executive Vice President-Finance
-----------------------------------
IMAGE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Assistant Secretary
------------------------------------
KINNAIRD & XXXXXXX
INTERIORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
KINNAIRD & XXXXXXX DRAPERY CO., INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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September 24, 1997
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FIRST QUALITY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
XXXXX XXXXXXXX INTERIORS
& ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name:
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Title:
------------------------------------
BAY AREA CARPETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
CARPET WORLD, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
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September 24, 1997
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RNA ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
GCO, INC.
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXXXX CARPETS & FLOORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
RUGS N REMNANTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
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September 24, 1997
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CARPET GALLERY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
LOSANTVILLE CARPET OUTLET, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
AMERICAN CARPETS & INTERIORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
INVESTOR MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
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September 24, 1997
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GCO CARPET OUTLET, INC.
By: /s/ Xxxx Xxxxxx
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Name:
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Title:
------------------------------------
MAXIM RETAIL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
CARPET COUNTY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
CARPETMAX, L.P.
By: The Maxim Group, Inc., as its sole
general partner
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
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September 24, 1997
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TRI-R OF ORLANDO, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
CARPETMAX OF PALM BEACH, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
CREDITMAX CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
CARPETMAX OF NEW MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
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September 24, 1997
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CARPETMAX OF CHARLOTTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
CLOUD CARPETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
CARPETMAX ALABAMA CONTRACT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Title:
------------------------------------
XXXXXX & XXXXXXX CARPETMAX OF
TENNESSEE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
------------------------------------
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September 24, 1997
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MAXIM EQUIPMENT LEASING
COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
-------------------------------------
Title:
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