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Exhibit 4.1 (d)
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT (this "Agreement"), dated as of March
20, 1998, among WICKES INC. (formerly known as Wickes Lumber Company) (the
"Borrower"), the financial institutions executing this Agreement on the
signature pages hereto (the "Majority Lenders") and BT COMMERCIAL CORPORATION,
as agent (the "Agent") under the Credit Agreement (defined below). Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Credit Agreement.
W I T N E S S E T H
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WHEREAS, the Borrower, the Majority Lenders (and any other Lenders),
Nationsbank of Georgia, N.A., as Syndication Agent, the Agent and Bankers Trust
Company, as Issuing Bank, are parties to that certain Second Amended and
Restated Credit Agreement dated as of April 11, 1997, as amended (the "Credit
Agreement"); and
WHEREAS, at the Borrower's request, the Majority Lenders and the Agent have
agreed, subject to the terms and conditions set forth herein, to amend the Fixed
Charge Coverage Ratio covenant set forth in Section 8.1 of the Credit Agreement.
WHEREAS, the Borrower has requested, pursuant to Section 8.9 of the Credit
Agreement, that the Agent consent to the sale by the Borrower to Riverside
Group, Inc. ("Riverside") of the assets constituting the "Wickes
Plus/xxxxxx.xxx" operations of the Borrower, and certain other rights
(collectively, the "Non-Core Assets"), all pursuant to that certain letter
agreement, dated November 4, 1997, between the Borrower and Riverside, as
amended by that certain letter agreement, dated February 24, 1998, between the
Borrower and Riverside (collectively, the "Transfer Documents").
WHEREAS, the Borrower has requested, pursuant to Section 8.9 of the Credit
Agreement, that the Agent consent to the sale by the Borrower to United Building
Centers, a division of Lanoga Corporation ("Lanoga") of certain of the assets
relating to the Borrower's two store locations (the "Iowa Stores") in Dubuque,
Iowa and Davenport, Iowa (the "Iowa Assets") pursuant to that certain Asset
Purchase Agreement, dated February 27, 1998, between the Borrower and Lanoga
(the "Iowa Assets Purchase Agreement").
NOW, THEREFORE, the parties do hereby agree as follows:
1. Amendment. The Credit Agreement is hereby amended as follows:
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a) Section 8.1 of the Credit Agreement is amended by (i) replacing
the ratio "0.75 to 1.00"* on the line opposite the words "last day of
fiscal March 1998" with the ratio "0.60 to 1.00", (ii) replacing the ratio
"1.10 to 1.00" on the line opposite the words "last day of fiscal June
1998" with the ratio "0.70 to 1.00" and (iii) replacing the ratio "1.10 to
1.00" on the line opposite the words "last day of fiscal September 1998"
with the ratio "1.00 to 1.00".
provided, that nothing in this Section 1 shall be deemed to alter or excuse the
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obligation of the Borrower to pay the fees set forth in Section 4 of the Second
Amendment to Credit Agreement, dated as of December 24, 1997, as and when
provided therein (and without giving effect to this Agreement).
2. Consents. (a) The Agent hereby consents to the sale by Wickes to
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Riverside of the Non-Core Assets pursuant to the Transfer Documents, provided
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that (i) such Transfer Documents are not materially amended from the versions
previously supplied to the Agent without the prior written consent of the Agent,
(ii) the promissory note made by Riverside in favor of the Borrower referred to
in the Transfer Documents (the "Riverside Note") is pledged to the Agent, for
its benefit and the ratable the benefit of the Lenders, as additional security
for the Obligations pursuant to a pledge agreement in form and substance
satisfactory to the Agent, and (iii) Riverside agrees in writing with the Agent
to make all payments due to the Borrower under the Transfer Documents (whether
pursuant to the Riverside Note or otherwise) directly to the Agent for
application to the Obligations.
(b) The Agent hereby consents to the sale by Wickes to Lanoga of
the Iowa Assets pursuant to the Iowa Assets Purchase Agreement, provided that
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(i) the Iowa Assets Purchase Agreement is not materially amended from the
version delivered to the Agent on March 3, 1998, (ii) the Borrower receives no
less than $3,969,300 in cash proceeds for the Iowa Assets (as adjusted pursuant
to Section 2 of the Iowa Assets Purchase Agreement) (as so adjusted, the "Iowa
Assets Purchase Price"), and (iii) the full amount of the Iowa Assets Purchase
Price (less no more than $201,600 to be paid to certain lessors of certain
rolling stock used in connection with the Iowa Stores) is paid directly to the
Agent for application to the Obligations. Effective upon its receipt of the
amounts specified in clause (iii) above, the Agent hereby releases any and all
Xxxxx held by it upon any of the Iowa Assets and agrees to deliver to the
Borrower, at the Borrower's expnese, duly-executed UCC-3 termination statements
to evidence such release on the records of the appropriate filing offices in
the State of Iowa.
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*. Previously amended.
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3. Conditions Precedent. The amendments contained in Section 1 and
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the consents contained in Section 2 above are subject to, and contingent
upon, satisfaction of each of the following conditions:
(a) the Agent shall have received duly executed counterparts hereof
signed by the Borrower, the Agent and the Majority Lenders; and
(b) all representations and warranties of the Borrower contained
herein shall be true and correct in all material respects as of the date
hereof.
4. Additional Condition. In order to induce the Agent and the
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Majority Lenders to agree to the amendments contained in Section 1 above, the
Borrower agrees that, from and after the date hereof, the Agent may, in its
discretion but at the Borrower's expense, conduct a retail liquidation value
appraisal of the Borrower's Inventory once per year (and, during the continuance
of an Event of Default, as often as the Agent deems necessary or desirable in
its sole discretion).
5. Representations and Warranties. (a) The borrower hereby represents
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and warrants to the Agent, the Syndication Agent and the Lenders as follows:
(i) As of the date hereof, the representations and warranties
contained in the Credit Agreement and the other Credit Documents are true
and correct in all material respects after giving effect to this Agreement
as though made on and as of such date, except to the extent that such
representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
correct on and as of such earlier date);
(ii) after giving effect to this Agreement, no event has
occurred and is continuing, or would result from this Agreement, which
constitutes a Default or an Event of Default;
(iii) the Borrower has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Agreement and
the transactions contemplated hereby, and has taken or caused to be taken
all necessary actions to authorize the execution, delivery and performance
of this Agreement and the transactions contemplated hereby;
(iv) except for those that have been obtained, no consent of any
other Person and no action of or filing with any Governmental Authority is
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required to authorize, or is otherwise required in connection with, the
execution, deliver and performance of the transactions contemplated hereby;
(v) this Agreement has been duly executed and delivered on
behalf of the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms;
(vi) the execution, delivery and performance of this Agreement
will not violate any law, statute or regulation, or any order or decree of
any Governmental Authority, or conflict with, or result in the breach of,
or constitute a default under, any material Contract (including, without
limitation, the Indenture); and
(vii) the Borrower is receiving fair value for the Non-Core
Assets and the Iowa Assets.
6. Effect of Agreement. Except as specifically provided herein, this
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Agreement does not in any way affect or impair the terms, conditions and other
provisions of the Credit Agreement or the other Credit Documents, and all terms,
conditions and other provisions of such documents shall remain in full force and
effect. Any amendments herein are limited to the specific provisions described
and shall not be deemed to (i) be amendments of any other term or condition of
the Credit Agreement or any other Credit Document or (ii) prejudice any rights
not specifically addressed herein which the Agent or any Lender may now have or
may have in the future under the Credit Agreement or any other Credit Document.
This Agreement is a "Credit Document," as such term is defined in the Credit
Agreement.
7. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, and all of which taken
together shall be deemed to constitute one and the same instrument.
8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
9. Headings. Section headings are included herein for convenience of
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reference only and shall not constitute a part of this Agreement for any other
purpose.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their proper and authorized officers as of the date
first set forth above.
BORROWER:
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WICKES INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President-Finance, Treasurer
AGENT:
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BT COMMERCIAL CORPORATION,
as Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Vice President
MAJORITY LENDERS:
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BT COMMERCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Vice President
NATIONSBANK OF GEORGIA, N.A.
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
LASALLE NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Title:
BANKAMERICA BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxx Xxxxx
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Title: Director
BTM CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
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