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Exhibit 4.1 (c)
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Agreement"), dated as of
December 24, 1997, 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 and Consolidated Net Worth covenants set forth in
Sections 8.1 and 8.2 respectively, of the Credit Agreement.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Amendments. 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 "1.10 to 1.00" on the line opposite the words "last day of fiscal
December 1997" with the ratio "0.75 to 1.00" and (ii) replacing the ratio
"1.10 to 1.00" on the line opposite the words "last day of fiscal March
1998" with the ratio "0.75 to 1.00".
(b) Section 8.2 of the Credit Agreement is amended by (i) replacing
the figure "$21,420,000" on the line opposite the words "December 1997"
with the figure "$18,000,000" and (ii) replacing the figure "$16,920,000"
on the line opposite the words "March 1998" with the figure "$14,000,000".
2. Conditions Precedent. The amendments contained in Section 1
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above are subject to, and contingent upon, satisfaction of each of the
following conditions:
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(a) the Agent shall have received duly executed counterparts hereof
signed by the Borrower, the Agent and the Majority Lenders;
(b) all representations and warranties of the Borrower contained
herein shall be true and correct in all material respects as of the date
hereof; and
(c) In consideration for their agreement to the amendments
contained in Section 1 above, the Agent shall have received from the
Borrower, for the pro rata account of the Lenders, an amendment fee of
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$162,500, in immediately available funds. Once paid, such fee shall be
nonrefundable.
3. Additional Condition. Until such time as the Borrower
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demonstrates to the satisfaction of the Agent its compliance with the covenants
set forth in Sections 8.1 and 8.2 of the Credit Agreement for the applicable
fiscal periods ended on the last day of fiscal June 1998, the Borrower shall
maintain excess borrowing availability under the Credit Agreement of at least
$15,000,000.
4. Additional Fees. Notwithstanding the amendments set forth in
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Section 1 above and as additional consideration for the agreement by the
Majority Lenders to the amendments contained in Section 1 above, (a) if the
Consolidated Entity's Fixed Charge Coverage Ratio for the last four full fiscal
quarters of the Consolidated Entity ending on the last day of fiscal December
1997 is less than 1.10 to 1.00, the Borrower shall immediately pay to the Agent
in immediately available funds, for the pro rata account of the Lenders, an
additional amendment fee of $162,500 (unless the Borrower is able to avail
itself (and has not previously availed itself) of the one-time only default
carve-out contained in the first proviso of Section 8.1 of the Credit Agreement)
and (b) if the Consolidated Entity's Fixed Charge Coverage Ratio for the last
four full fiscal quarters of the Consolidated Entity ending on the last day of
fiscal March 1998 is less than 1.10 to 1.00, the Borrower shall immediately pay
to the Agent in immediately available funds, for the pro rata account of the
Lenders, an additional amendment fee of $162,500 (unless the Borrower is able to
avail itself (and has not previously availed itself) of the one-time only
default carve-out contained in the first proviso of Section 8.1 of the Credit
Agreement). For the avoidance of doubt, the fees due hereunder shall be
Obligations of the Borrower and, once paid, shall be nonrefundable.
5. Representations and Warranties. (a) The Borrower hereby
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represents and warrants to the Agent, the Syndication Agent and the Lenders as
follows:
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(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
required to authorize, or is otherwise required in connection with, the
execution, delivery 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; and
(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).
6. Effect of Agreement. Except as specifically provided herein,
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this 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
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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
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of 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/Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
AGENT:
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BT COMMERCIAL CORPORATION,
as Agent
By: /s/ Xxxxx X. Xxxxxxx
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Vice President
MAJORITY LENDERS:
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BT COMMERCIAL CORPORATION
By: /s/Xxxxx X. Xxxxxxx
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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: Sr. Vice President
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 X. Xxxxx
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Title: Vice President
BTM CAPITAL CORPORATION
By: _________________________________
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/Xxx Xxxxx
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Title: Assistant Vice President
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