Exhibit 10.23.4
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Agreement") is entered
into as of October 21, 1999 among The Maxim Group, Inc., a Delaware corporation
(the "Borrower"), the Domestic Subsidiaries of the Borrower, as Guarantors, Bank
of America, N.A. (formerly NationsBank, N.A.), as Administrative Agent (in such
capacity, the "Administrative Agent") and the Lenders party thereto. Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings given to them in the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Amended and Restated Credit Agreement dated
as of May 18, 1999 (as amended by that certain First Amendment to Credit
Agreement and Forbearance dated as of July 23, 1999 (the "First Amendment"),
that certain Second Amendment to Credit Agreement, Forbearance and Waiver dated
as of September 7, 1999 (the "Second Amendment") and that certain Third
Amendment to Credit Agreement and Forbearance dated as of October 11, 1999 (the
"Third Amendment") and as further amended, modified, supplemented, extended or
restated from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders agree to, and the Administrative Agent and the Lenders are, upon and
subject to the terms and conditions specified in this Agreement, willing to
increase the amount currently available under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. REAFFIRMATION OF EXISTING DEBT. The Credit Parties acknowledge and
confirm that (a) the Borrower's obligation to repay the outstanding principal
amount of the Loans and reimburse the Issuing Lender for any drawing on a Letter
of Credit is unconditional and not subject to any offsets, defenses or
counterclaims, (b) the Administrative Agent, on behalf of the Lenders, has a
valid and enforceable first priority perfected security interest in the
Collateral, (c) the Administrative Agent and the Lenders have performed fully
all of their respective obligations under the Credit Agreement and the other
Credit Documents, and (d) by entering into this Agreement, the Administrative
Agent and the Lenders do not waive or release any term or condition of the
Credit Agreement or any of the other Credit Documents or any of their rights or
remedies under such Credit Documents or applicable law or any of the obligations
of any Credit Party thereunder.
2. REVOLVING LOAN COMMITMENT. Section 2.1(a) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
1
(a) REVOLVING LOAN COMMITMENT. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
revolving loans (each a "REVOLVING LOAN" and collectively the
"REVOLVING LOANS") to the Borrower, in Dollars, at any time and from
time to time, during the period from and including the Effective Date
to but not including the Maturity Date (or such earlier date if the
Revolving Committed Amount has been terminated as provided herein);
PROVIDED, HOWEVER, that (i) the sum of the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of LOC
Obligations outstanding plus the aggregate amount of Synthetic Lease
Obligations outstanding shall not exceed the lesser of (x) the
Revolving Committed Amount, (y) the Borrowing Base Assets and (z)
$37,500,000 and (ii) with respect to each individual Lender, the
Lender's pro rata share of outstanding Revolving Loans plus such
Lender's pro rata share of outstanding LOC Obligations plus such
Lender's pro rata share of the aggregate amount of the outstanding
Synthetic Lease Obligations shall not exceed such Lender's Revolving
Loan Commitment Percentage of the Revolving Committed Amount. Subject
to the terms of this Credit Agreement (including Section 3.3), the
Borrower may borrow, repay and reborrow Revolving Loans.
3. RELEASE. The Credit Parties hereby release the Administrative Agent,
the Lenders, and the Administrative Agent's and the Lenders' respective
officers, employees, representatives, agents, counsel and directors from any and
all actions, causes of action, claims, demands, damages and liabilities of
whatever kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act on or prior to the date hereof.
4. CONDITIONS PRECEDENT. The effectiveness of this Agreement is subject
to the satisfaction of each of the following conditions:
(a) The Administrative Agent shall have received original
counterparts of this Agreement duly executed by the Credit Parties, the
Administrative Agent and the Lenders.
(b) The Borrower shall have delivered to the Administrative
Agent an opinion of counsel to the Credit Parties in form and substance
satisfactory to the Administrative Agent as to the due authorization,
execution, delivery and enforceability of this Agreement.
(c) The Administrative Agent shall have received original
counterparts of (i) an assignment of cash collateral account in form
and substance satisfactory to the Administrative Agent and (ii) an
amendment to assignment of money market fund in form and substance
satisfactory to the Administrative Agent, each duly executed by the
Borrower and Bank of America, N.A., as agent for the Lenders and the
TROL Lenders, and (iii) an account control agreement in form and
substance satisfactory to the Administrative Agent, duly executed by
the Borrower, Bank of America, N.A., as agent for the Lenders and the
TROL Lenders, and Nations Institutional Reserves.
2
(d) The Administrative Agent shall have received such other
documents and information as it deems reasonably necessary.
5. MISCELLANEOUS.
(a) The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this
Agreement. Except as herein specifically agreed, the Credit Agreement,
and the obligations of the Credit Parties thereunder and under the
other Credit Documents, are hereby ratified and confirmed and shall
remain in full force and effect according to their terms.
(b) The Credit Parties hereby represent and warrant as
follows:
(i) Each Credit Party has taken all necessary action
to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and
delivered by each Credit Party and constitutes each such Credit Party's
legal, valid and binding obligations, enforceable in accordance with
its terms, except as such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any court or
governmental authority or third party is required in connection with
the execution, delivery or performance by any Credit Party of this
Agreement.
(c) The Credit Parties hereby represent and warrant to the
Lenders that (i) the representations and warranties of the Credit
Parties set forth in Section 6 of the Credit Agreement are true and
correct as of the date hereof and (ii) no unwaived event has occurred
and is continuing which constitutes a Default or an Event of Default.
(d) The Guarantors (i) acknowledge and consent to all of the
terms and conditions of this Agreement, (ii) affirm all of their
obligations under the Credit Documents and (iii) agree that this
Agreement and all documents executed in connection herewith do not
operate to reduce or discharge the Guarantors' obligations under the
Credit Agreement or the other Credit Documents.
(e) This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart of this Agreement by
telecopy shall be effective as an original and shall constitute a
3
representation that an executed original shall be delivered.
(f) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
[remainder of page intentionally left blank]
4
MAXIM FOURTH AMENDMENT
Each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
BORROWER: THE MAXIM GROUP, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: EVP Finance
GUARANTORS: CARPETMAX, L.P., a Georgia limited
partnership
By: The Maxim Group, Inc. as its sole
general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: EVP Finance
[SIGNATURES CONTINUE]
XXXXXX & XXXXXXX CARPETMAX OF
TENNESSEE, INC., a Tennessee corporation
C & S TEXTILES, INC., an Idaho corporation
CARPETMAX OF UTAH, INC., a Utah corporation
CARPETMAX RETAIL STORES, INC., a Delaware
corporation
CARPETSPLUS OF AMERICA, INC., a Georgia
corporation
GCO, INC., a Nevada corporation
GCO CARPET OUTLET, INC., an Alabama
corporation
INVESTOR MANAGEMENT, INC., an Alabama
corporation
MAXIM EQUIPMENT LEASING COMPANY, INC., a
Georgia corporation
MAXIM RETAIL GROUP, INC., a Georgia
corporation
MAXIM RETAIL STORES, INC., a Georgia
corporation
TRI-R OF ORLANDO, INC., a Georgia
corporation
COLORADO CARPET & RUGS, INC., a Colorado
corporation
MANASOTA CARPET, INC., a Florida corporation
XXXXXXXXX & XXXXX DECORATING CENTER, INC., a
Florida corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: of each of the foregoing
Guarantors
BANK OF AMERICA, N.A., individually
in its capacity as a Lender, in its
capacity as Administrative Agent and
in its capacity as Issuing Lender
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
