EXHIBIT NO. 10.67
THIRTEENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT, dated as of
September 16, 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 "EXPIRATION DATE" in its entirety and replacing it as follows:
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EXPIRATION DATE means the earlier of (i) June 30, 2000 and
(ii) the date on which this Credit Agreement is terminated pursuant to
SECTION 9.2(B).
1.2 Section 1.1 of the Credit Agreement is further amended by deleting
the reference to September 30, 1999 contained in the second proviso of the
definition of "FIXED ASSET SUBLIMIT" and by replacing it with a reference to
"DECEMBER 31, 1999".
1.3 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) June 30,
2000 or (ii) the Expiration Date.
1.4 Section 1.1 of the Credit Agreement is further amended, effective
December 31, 1999, 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 $95,000,000, as such
amount may be reduced from time to time pursuant to the terms and
provisions hereof.
1.5 The Credit Agreement is further amended by adding a new Section
7.17 thereto which shall read in its entirety as follows:
7.17 AMENDMENT FEE
The Borrowers shall pay to the Agent on December 31, 1999, for
the ratable benefit of the Lenders in consideration for the Lenders'
entering into the Thirteenth Amendment to the Credit Agreement (the
"THIRTEENTH AMENDMENT"), a non-refundable fee equal to $150,000 (the
"AMENDMENT FEE"). The Amendment Fee shall be earned in full by the
Lenders upon the effectiveness of the Thirteenth Amendment.
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 be an
amount not less than the following:
PERIOD END AMOUNT
---------- ------
September 30, 1999 $-0-
December 31, 1999 $4,000,000
March 31, 2000 $9,000,000
1.7 Annex I of the Credit Agreement is amended by replacing such annex
with the Annex I attached to this Amendment as EXHIBIT A.
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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 EXPENSES. The Agent shall have been reimbursed for all fees and
expenses incurred by the Agent in connection with this Amendment.
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) THIRTEENTH 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
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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.
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.
[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/ 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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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/
------------------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC., in its capacity as Revolving Lender
By: /s/ XXXXXX XXXXXX
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
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 CORPORATIONN, in its capacity
as Revolving Lender
By: /s/ X. X. XXXXX
------------------------------------------------
Name: X. X. Xxxxx
Title: SVP
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., as Overadvance
Term Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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EXHIBIT A TO THIRTEENTH 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: $16,869,159.00
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: $16,869,159.00
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: $15,981,308.00
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: $11,542,056.00
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: $16,869,159.00
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
6. GMAC BUSINESS CREDIT L.L.C.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
REVOLVING COMMITMENT AMOUNT: $16,869,159.00
DOMESTIC LENDING OFFICE: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
LIBOR LENDING OFFICE: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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