10.(i)(G)(5)
WAIVER AND SECOND AMENDMENT TO
POST-PETITION LOAN AND GUARANTY AGREEMENT
WAIVER AND SECOND AMENDMENT TO POST-PETITION LOAN AND GUARANTY
AGREEMENT, dated as of February 20, 1998 (this "Amendment"), among XXXXXXXXXX
XXXX & CO., INCORPORATED, an Illinois corporation and a debtor and debtor in
possession ("Borrower Representative"), XXXXXXXXXX XXXX HOLDING CORP., a
Delaware corporation and a debtor and debtor in possession ("Parent" or
"Guarantor"), as Guarantor, the other Guarantors signatory hereto (together with
Parent and the Borrower Representative, the "Credit Parties"), GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation (in its individual capacity, "GE
Capital"), for itself, as Lender, and as Agent (the "Agent") for Lenders, and
the other Lenders signatory hereto.
RECITALS
--------
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 Waiver and First Amendment to Post-
Petition Loan and Guaranty Agreement, dated as of July 30, 1997 and as further
amended, supplemented or modified, the "Loan Agreement"). The Borrower
Representative and the Guarantors have requested that the Lenders agree to amend
and waive 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 amend and waive certain provisions of the Loan
Agreement, all 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.
(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. In addition, as used in this Amendment, the following terms shall
have the following meanings:
"Second Amendment" shall mean the Waiver and Second Amendment to Post-
Petition Loan and Guaranty Agreement dated as of February 20, 1998.
"Second Amendment Effective Date" shall have the meaning specified in
Section 5 hereof.
(b) Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) No provision in this Amendment shall be interpreted or construed
against any Person because that Person or its legal representative drafted such
provision.
SECTION 2. Waiver.
(a) As of the Second Amendment Effective Date, Lenders hereby waive
the provisions of Section 6.4 of the Loan Agreement, for the limited purpose of
permitting the Borrower Representative to sell the real property and
improvements that constituted the premises (the "Premises") of the Closed
Locations (as such term is defined in the Waiver to Post-Petition Loan and
Guaranty Agreement, dated November 7, 1997) and of the Borrower Representative's
Greenwood, Indiana retail store and auto center; provided, however, that the
Borrower Representative acknowledges and agrees that it is hereby permitted to
sell or cause to be sold, over and above the limit set forth in Section 6.4 of
the Loan Agreement, Premises which, in the aggregate, have a book value not to
exceed $70,000,000.
(b) The Lenders agree that any Premises sold pursuant to subsection
2(a) above, not in excess of an aggregate of $70,000,000, shall not be included
in calculating the amount of assets permitted to be sold by the Borrower
Representative and its Subsidiaries pursuant to Section 6.4 of the Loan
Agreement.
(c) As of the Second Amendment Effective Date, Lenders hereby waive
(i) the provisions of Section 8.1(r) of the Loan Agreement, for the limited
purpose of permitting the Credit Parties to make modifications to their cash
management systems including the treatment of Automated Clearinghouse
transactions pursuant to that certain Motion of Debtors and Debtors in
Possession for an Order, Pursuant to Sections 363 and 364 of the Bankruptcy
Code, Authorizing Certain Modifications to Cash Management System and Granting
Superpriority Status to Certain Claims that Would Arise Thereunder and (ii) the
provisions of Section 1.4 of the Loan Agreement, for the limited purpose of
permitting the Credit Parties to pay certain prepetition claims pursuant to (x)
Motion of Debtors and Debtors in Possession for an Order Approving Participation
in Consent Decree, Purity Site Work Agreement and Agreement for Participation of
Xxxxxxxxxx Xxxx in Purity Oil Sales Superfund Site Settlement and (y) Motion of
Debtors and Debtors in Possession for an Order (A) Approving Compromise and
Settlement of Eminent Domain Action, (B) Authorizing the Use of Estate Assets to
Make Certain Tax Payments in Connection Therewith and (C) Modifying the
Automatic Stay to Allow Such State Court Proceedings as Are Necessary for
Implementation of Settlement.
(d) As of the Second Amendment Effective Date, Lenders hereby agree
to waive the provisions of Section 6.3 of the Loan Agreement, for the limited
purpose and solely in connection with, the granting by the Borrower
Representative or any Guarantor of any Lien in favor of any Person acting as an
agent of such Credit Party in connection with any dispositions or sales of the
Premises pursuant to a valid and enforceable order of the Bankruptcy Court,
provided that: (i) any such Lien shall not extend to any assets or properties
other than the Premises that are being disposed of or sold and shall only secure
the fees and obligations owed to such person by such Credit Party and (ii) such
Premises shall not be considered Eligible Real Property for purposes of
calculating the Borrowing Base.
SECTION 3. Amendments to the Loan Agreement. The Loan Agreement is,
effective as of the Second Amendment Effective Date, amended as follows:
(a) Annex E to the Loan Agreement is hereby amended by inserting in
the second line of paragraph (a) thereof after "Fiscal Month" and before the
comma the wording "except the last Fiscal Month of each Fiscal Quarter" and by
adding the following paragraphs (n) and (o) thereto:
2
"(n) Minimum Requirements for Additional Monthly Reporting. To
Agent and Lenders, (i) within 15 days after the end of each Fiscal Month,
for all stores of the Borrower Representative with respect to which no
order has been entered by the Bankruptcy Court authorizing the closing
thereof ("Comp Stores") in the aggregate, sales, gross margin dollars and
gross margin percent on a preliminary basis for each division within such
Comp Stores for such Fiscal Month, together with the aggregate divisional
sales, gross margin dollars and gross margin percent for such Comp Stores
included in the annual operating plan for that Fiscal Month, (ii) after the
end of each Fiscal Quarter except the last Fiscal Quarter of each Fiscal
Year, a copy of the financial report required to be delivered by the
Borrowers and their Subsidiaries to the United States Trustee in connection
with the chapter 11 cases of the Borrowers and their Subsidiaries that
summarizes, on a cumulative basis, the financial performance and the
results of the last Fiscal Month of such Fiscal Quarter and Fiscal Year to
date contemporaneously with the delivery of such report to the United
States Trustee, but in no event more than 30 days after the end of such
Fiscal Quarter (the "Fiscal Quarter Report") and (iii) after the end of
each Fiscal Year, a copy of the financial report required to be delivered
by the Borrowers and their Subsidiaries to the United States Trustee in
connection with the chapter 11 cases of the Borrowers and their
Subsidiaries that summarizes, on a cumulative basis, the financial
performance and the results of the prior Fiscal Year contemporaneously with
the delivery of such report to the United States Trustee, but in no event
more than 60 days after the end of such Fiscal Year (the "Fiscal Year
Report").
(o) Preliminary Compliance Estimates. No later than 45 days
after the end of each Fiscal Quarter, to Agent and Lenders a statement in
reasonable detail showing the calculations used in determining compliance
with each of the financial covenants set forth in Annex G based upon
Borrower Representative's preliminary estimate of the numbers to be used in
such calculations."
(b) Subsection (b) of Annex G of the Loan Agreement is hereby amended
and restated to read as follows:
"Minimum EBITDA. At the end of each Fiscal Quarter set forth below,
EBITDA, for the respective periods set forth below, shall be an amount not
less than the following:
(i) $(125,000,000) for the three Fiscal Months ending the first
Fiscal Quarter of 1998;
(ii) $(150,000,000) for the six Fiscal Months ending the second Fiscal
Quarter of 1998;
(iii) $(185,000,000) for the nine Fiscal Months ending the third
Fiscal Quarter of 1998;
(iv) $(185,000,000) for the twelve Fiscal Months ending the fourth
Fiscal Quarter of 1998;
(v) $(175,000,000) for the twelve Fiscal Months ending the first
Fiscal Quarter of 1999; and
(vi) $(150,000,000) for the twelve Fiscal Months ending the second
Fiscal Quarter of 1999."
3
SECTION 4. Representations and Warranties True; No Default or Event
of Default. The Credit Parties represent and warrant to the Agent and the
Lenders that on the date of and after giving effect to the execution and
delivery of this Amendment (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 5. Conditions of Effectiveness. As used in this Amendment,
"Second Amendment Effective Date" shall mean:
(a) in connection with Sections 2 and 3(a), the date when, and only
when, Agent has received executed counterparts of this Amendment from the
requisite number of Lenders that comprise the Requisite Lenders; and
(b) in connection with Section 3(b), the date when, and only when:
(i) Agent has received executed counterparts of this Amendment from the
requisite number of Lenders that comprise the Requisite Lenders; (ii) the
Bankruptcy Court has entered a final order that is not subject to appeal, in
form and substance satisfactory to the Agent, in its sole and absolute
discretion, authorizing the payment of a fee to Agent from the Borrowers, for
the account of the Lenders who execute this Amendment, in an amount up to
$1,000,000 (the "Fee") and (iii) Agent has received the Fee.
SECTION 6. Reference to this Amendment and Effect on Loan Documents.
(a) From and after the Second Amendment Effective Date, 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 and amended hereby.
(b) From and after the Second Amendment Effective Date, each
reference in the Loan Documents (i) to the Loan Agreement shall mean and be
reference to the Loan Agreement, as affected and amended hereby and (ii) to the
terms whose definitions are amended pursuant to this Amendment shall mean and be
a reference to such term as affected and amended hereby.
(c) The Loan Agreement, the Notes and the other Loan Documents, as
affected and amended hereby, shall remain in full force and effect and the Loan
Documents are hereby ratified and confirmed in all respects.
(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 7. Governing Law; Binding Effect. In all respects, including
all matters of construction, validity and performance, this Amendment 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.
4
SECTION 8. Execution in Counterparts. This Amendment may be executed
in any 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 9. Consent of Guarantors. By their execution and delivery of
this Amendment, each Guarantor hereby consents to all of the terms and
provisions of this Amendment and ratifies and confirms that each of the other
Loan Documents to which it is a party remains in full force and effect and
enforceable in accordance with their respective terms.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWER:
XXXXXXXXXX XXXX & CO., INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
LECHMERE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
AMERICAN DELIVERY SERVICE COMPANY
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President, Secretary
CONTINENTAL TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Assistant
Treasurer
5
JRI DISTRIBUTING, INC.
STANDARD T CHEMICAL COMPANY, INC.
WFL REALTY, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
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
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary
XXXXXXXXXX XXXX
INTERNATIONAL, INC.
MPI, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
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
6
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.
By: /s/ G. Xxx Xxxxxx
---------------------------------
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
---------------------------------
Name: G. Xxx Xxxxxx
Title: Secretary
7
XXXXXXXXXX XXXX HOLDING
CORP.
By: /s/ G. Xxx Xxxxxx
---------------------------------
Name: G. Xxx Xxxxxx
Title: Assistant Secretary
JEFFERSON STORES, INC.
By: /s/ G. Xxx Xxxxxx
---------------------------------
Name: G. Xxx Xxxxxx
Title: Vice President and Treasurer
AGENT and as LENDER
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Its Authorized Signatory
LENDERS:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
8
BANKAMERICA BUSINESS CREDIT,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANKBOSTON RETAIL FINANCE INC.
(f/k/a GBFC, INC.)
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANQUE PARIBAS
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx, F.V.P.
---------------------------------
Name: Xxxxx Xxxxx
Title: Head of Corporate Banking,
Chicago
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President, Branch
Manager
9
THE CIT GROUP/BUSINESS CREDIT,
INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Secretary
CITIBANK, N.A.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Attorney-in-Fact
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: V.P. & Portfolio Manager
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS
L.P.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
10
GREEN TREE FINANCIAL SERVICING
CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director of Credit
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
IBJ XXXXXXXX BUSINESS CREDIT
CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXX NATIONAL LIFE
INSURANCE COMPANY
By: PPM FINANCE, INC.
Its Attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Account Officer
11
STAR BANK, N.A.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
12
