SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DMI FURNITURE, INC., a Delaware corporation (the "Company"), and BANK ONE,
INDIANAPOLIS, NATIONAL ASSOCIATION, a national banking association (the "Bank"),
parties to an Amended and Restated Credit Agreement dated June 9, 1994, as
amended by a First Amendment to Amended and Restated Credit Agreement dated
October 11, 1994 (collectively, as amended, the "Original Agreement"), agree to
amend the Original Agreement by this Second Amendment to Amended and Restated
Credit Agreement (this "Second Amendment") as follows:
1. DEFINITIONS. Sections 2.y, 0.xx, and 0.xx of the Original Agreement
are amended in their entireties, and new Sections 2.wwww, 0,xxxx, 0.xxxx,
2.zzzz, 2.aaaaa and 2.bbbbb are added to the Original Agreement, all to read as
follows:
y. CREDIT DOCUMENT. "Credit Document" means, as the context requires,
any of this Agreement, any of the Notes, any of the Letters of
Credit, any of the Mortgages, the Assignment, the Security
Agreement, the Guaranty Agreement, any of the Reimbursement
Agreements and any other instrument or document which evidences or
secures the Letters of Credit, the Loans, or any of them or which
expresses an agreement as to terms applicable to the Letters of
Credit, the Loans, or any of them, and when used in the plural form
means any two or more of the Credit Documents, as the context
requires.
mm. LOAN. "Loan" means the Revolving Loan, the Overline Loan, the Term
Loan, any Remarketing Reimbursement Loan-1993 Bonds, or any
Remarketing Reimbursement Loan-1994 Refunding Bonds, as the context
requires, and when used in the plural form refers to all of the
Loans or any combination of them, as the context requires.
pp. NOTE. "Note" means the Revolving Note, the Overline Note, the Term
Note, any Remarketing Reimbursement Note-1993 Bonds, or any
Remarketing Reimbursement Note-1994 Refunding Bonds, as the context
requires, and when used in the plural form refers to all of the
Notes or any combination of them, as the context requires.
wwww. REMARKETING REIMBURSEMENT LOAN-1993 BONDS. "Remarketing
Reimbursement Loan-1993 Bonds" is used as defined in Section
4.a(iv).
xxxx. REMARKETING REIMBURSEMENT LOAN-1994 REFUNDING BONDS. "Remarketing
Reimbursement Loan-1994 Refunding Bonds" is used as defined in
Section 4.b(iv).
yyyy. REMARKETING REIMBURSEMENT NOTE-1993 BONDS. "Remarketing
Reimbursement Note-1993 Bonds" is used as defined in Section
4.a(iv).
zzzz. REMARKETING REIMBURSEMENT NOTE-1994 REFUNDING BONDS. "Remarketing
Reimbursement Note-1994 Refunding Bonds" is used as defined in
Section 4.b(iv).
aaaaa. REMARKETING AGENT. "Remarketing Agent" is used as defined in the
corresponding Trust Indenture, as the context requires.
bbbbb. SECOND AMENDMENT. "Second Amendment" means that agreement entitled
"Second Amendment to Amended and Restated Credit Agreement" between
the Company and the Bank dated January 10, 1995.
All other terms defined in the Original Agreement and used in this Second
Amendment shall have their respective meanings stated in the Agreement.
2. CREDIT ENHANCEMENT LETTERS OF CREDIT. New Sections 4.a(iv) and
4.b(iv) are added to the Original Agreement to read as follows:
a. (iv) REMARKETING REIMBURSEMENT LOAN-1993 BONDS. At
the option of the Company exercised by written notice to the
Bank given not less than ten (10) days prior to the
expiration of a period of ninety (90) days following a
Remarketing Drawing on the 1993 Direct-Pay Letter of Credit
(which expiration date is hereafter referred to in this
subsection as the "reimbursement due date"), the Bank will
make a loan (a "Remarketing Reimbursement Loan-1993 Bonds")
to the Company on the reimbursement due date, provided that
the 1993 Direct-Pay Letter of Credit as it may have been
extended from time to time shall not then have expired or
been terminated, and provided further that no Event of
Default or Unmatured Event of Default shall have occurred and
is then continuing. Each Remarketing Reimbursement Loan-1993
Bonds shall be in an amount not in excess of the amount due
to the Bank from the Company on the related reimbursement due
date on account of the portion of the Remarketing Drawing
representing the Principal Amount. The term "Principal
Amount" is used in the preceding sentence as that term is
defined in the 1993 Direct-Pay Letter of Credit. Proceeds of
the Remarketing Reimbursement Loan-1993 Bonds shall be used
solely to reimburse the Bank for all or a portion of the
Principal Amount of the related Remarketing Drawing for the
1993 Bonds which have not been sold by the Remarketing Agent
subsequent to the Remarketing Drawing. Each Remarketing
Reimbursement Loan-1993 Bonds shall be represented by the
promissory note of the Company (a "Remarketing Reimbursement
Note-1993 Bonds"), delivered to the Bank contemporaneously
with the making of the Loan, with each such Note
substantially in the form of the Term Note, with the
following exceptions:
(A) no Remarketing Reimbursement Loan-1993 Bonds will be
made after the earlier of the expiration or
termination of the 1993 Direct-Pay Letter of Credit;
(B) the final maturity of each Remarketing Reimbursement
Note-1993 Bonds shall be a date which is the earlier
of (1) 288 days after the date the Loan evidenced by
such Note was made, or (2) the date that the 1993
Direct-Pay Letter of Credit (as it may have been
extended from time to time in the Bank's sole
discretion) expires or is terminated;
(C) each Remarketing Reimbursement Note-1993 Bonds shall
bear interest prior to maturity at a per annum rate
equal to the
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Prime Rate plus one and one-half percent (1-1/2%) and
after maturity at a per annum rate equal to the Prime
Rate plus three and one-half percent (3-1/2%) per
annum;
(D) all accrued interest on the outstanding principal
balance of the Remarketing Reimbursement Loan-1993
Bonds is due and payable prior to maturity on the last
Banking Day of each calendar month, and after
maturity, all interest is due and payable as accrued
and without demand; and
(E) the principal of each Remarketing Reimbursement
Note-1993 Bonds shall be payable prior to maturity on
the same dates as the scheduled principal payments
under the 1993 Bonds purchased with the related
Remarketing Drawing would have become due and payable,
and the principal amount payable on each such date
shall be equal to the principal payments scheduled to
have been paid on the same date on the 1993 Bonds
redeemed with the related Remarketing Drawing.
b. (iv) REMARKETING REIMBURSEMENT LOAN-1994 REFUNDING Bonds. At the
option of the Company exercised by written notice to the Bank
given not less than ten (10) days prior to the expiration of
a period of ninety (90) days following a Remarketing Drawing
on the 1994 Refunding Direct-Pay Letter of Credit (which
expiration date is hereafter referred to in this subsection
as the "reimbursement due date"), the Bank will make a loan
(a "Remarketing Reimbursement Loan-1994 Refunding Bonds") to
the Company on the reimbursement due date, provided that the
1994 Refunding Direct-Pay Letter of Credit as it may have
been extended from time to time shall not then have expired
or been terminated, and provided further that no Event of
Default or Unmatured Event of Default shall have occurred and
is then continuing. Each Remarketing Reimbursement Loan-1994
Refunding Bonds shall be in an amount not in excess of the
amount due to the Bank from the Company on the related
reimbursement due date on account of the portion of the
Remarketing Drawing representing the Principal Amount. The
term "Principal Amount" is used in the preceding sentence as
that term is defined in the 1994 Refunding Direct-Pay Letter
of Credit. Proceeds of the Remarketing Reimbursement
Loan-1994 Refunding Bonds shall be used solely to reimburse
the Bank for all or a portion of the Principal Amount of the
related Remarketing Drawing for the 1994 Refunding Bonds
which have not been sold by the Remarketing Agent subsequent
to the Remarketing Drawing. Each Remarketing Reimbursement
Loan-1994 Refunding Bonds shall be represented by the
promissory note of the Company (a "Remarketing Reimbursement
Note-1994 Refunding Bonds"), delivered to the Bank
contemporaneously with the making of the Loan, with each such
Note substantially in the form of the Term Note, with the
following exceptions:
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(A) no Remarketing Reimbursement Loan-1994 Refunding Bonds
will be made after the earlier of the expiration or
termination of the 1994 Refunding Direct-Pay Letter of
Credit;
(B) the final maturity of each Remarketing Reimbursement
Note-1994 Refunding Bonds is a date which is the
earlier of (1) 288 days after the date the Loan
evidenced by such Note was made, or (2) the date that
the 1994 Refunding Direct-Pay Letter of Credit (as it
may have been extended from time to time in the Bank's
sole discretion) expired or is terminated;
(C) each Remarketing Reimbursement Note-1994 Refunding
Bonds shall bear interest prior to maturity at a per
annum rate equal to the Prime Rate plus one and
one-half percent (1-1/2%) and after maturity at a per
annum rate equal to the Prime Rate plus three and
one-half percent (3-1/2%) per annum;
(D) all accrued interest on the outstanding principal
balance of the Remarketing Reimbursement Loan-1994
Refunding Bonds is due and payable prior to maturity
on the last Banking Day of each calendar month, and
after maturity, all interest is due and payable as
accrued and without demand; and
(E) the principal of each Remarketing Reimbursement
Note-1994 Refunding Bonds shall be payable prior to
maturity on the same dates as the scheduled principal
payments under the 1994 Refunding Bonds purchased with
the related Remarketing Drawing would have become due
and payable, and the principal amount payable on each
such date shall be equal to the principal payments
scheduled to have been paid on the same date on the
1994 Refunding Bonds redeemed with the related
Remarketing Drawing.
3. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into
this Second Amendment, the Company affirms that the representations and
warranties contained in the Original Agreement are correct as of the date of
this Second Amendment, except that (i) they shall be deemed also to refer to
this Second Amendment, as well as all documents named herein, and (ii) Section
5.d shall be deemed also to refer to the most recent audited and unaudited
financial statements of the Company furnished to the Bank.
4. EVENTS OF DEFAULT. The Company certifies that no Event of Default
or Unmatured Event of Default under the Original Agreement, as amended by this
Second Amendment, has occurred and is continuing as of the date of this Second
Amendment.
5. CLOSING DOCUMENTS. As conditions precedent to the effectiveness of
this Second Amendment, the Bank shall first receive the following
contemporaneously with the execution and delivery of this Second Amendment, each
duly executed, dated and in form and substance satisfactory to the Bank:
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A. A certified copy of the resolutions of the Board of Directors of the
Company, authorizing the execution, performance and delivery of this
Second Amendment; and
B. Such other documents as are reasonably required by the Bank.
6. EFFECT OF SECOND AMENDMENT. Except as amended in this Second
Amendment, all of the terms and conditions of the Original Agreement shall
continue unchanged and in full force and effect together with this Second
Amendment.
IN WITNESS WHEREOF, the Company and the Bank, by their respective duly
authorized officers, have executed and delivered in Indiana this Second
Amendment to Amended and Restated Credit Agreement on this 10th day of
January, 1995.
DMI FURNITURE, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, Chief Financial
Officer
BANK ONE, INDIANAPOLIS, NA
Attest:
/s/ Xxxxxxx X. Verbor By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- --------------------------------
Vice President Xxxxxx X. Xxxxxxx, Vice President
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(printed name and title)
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