EXHIBIT NUMBER 10.49
SECOND AMENDMENT AND CONSENT TO POSTPETITION
CREDIT AGREEMENT
THIS SECOND AMENDMENT AND CONSENT, dated as of December 30, 1997 (this
"Amendment") to the POSTPETITION CREDIT AGREEMENT dated as of September 5, 1997
(the "Credit Agreement"), is among XXXXXX FURNITURE INCORPORATED, a Delaware
corporation and a debtor and debtor in possession ("LFI"), XXXXXX FURNITURE
COMPANY, 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 ("LFR"), XXXXXX SHOPPING SERVICE, INC., a Florida
corporation and a debtor and debtor in possession ("LSS"), XXXXXX FURNITURE
COMPANY OF THE MIDWEST, INC., a Colorado corporation and a debtor and debtor in
possession ("LFC Midwest"), XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a
California corporation and a debtor and debtor in possession ("LFC Pacific"),
XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a Washington corporation and a
debtor and debtor in possession ("LFC Washington") XXXXXX FURNITURE COMPANY OF
THE MIDWEST REALTY, INC., a Colorado corporation and a debtor and debtor in
possession ("LFC Midwest Realty"), XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation and a debtor and a debtor in possession
("LFC Pacific Realty"), XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY, INC., a
Washington corporation and debtor and a debtor in possession ("LFC Washington
Realty"), XXXX X. XXXXX COMPANY, an Illinois corporation and a debtor and debtor
in possession ("JMS") and XXXX X. XXXXX REALTY COMPANY, an Illinois corporation
and a debtor and debtor in possession ("JMS Realty") (LFI, LFC, LFR, LSS, LFC
Midwest, LFC Pacific, LFC Washington, LFC Midwest Realty, LFC Pacific Realty,
LFC Washington Realty, JMS and JMS Realty sometimes hereinafter individually
called a "Borrower" and collectively called the "Borrowers"); each Revolving
Lender and Term Lender signatories hereto (collectively the "Lenders"), and BT
COMMERCIAL CORPORATION, a Delaware corporation (in its individual capacity,
hereinafter called "BTCC"), acting in its capacity as agent for the Lenders (in
such capacity, together with its successors in such capacity, hereinafter called
the "Agent"). Capitalized terms used in this Amendment and not otherwise defined
have the meanings assigned such terms in the Credit Agreement.
PRELIMINARY STATEMENTS:
A. The Borrowers and the Lenders are parties to the Credit Agreement.
B. The Borrowers have requested the Lenders and the Agent to amend the
Credit Agreement in certain respects.
C. The Lenders and the Agent have agreed to amend the Credit Agreement
as requested on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Amendment, the Borrowers, the Lenders and the Agent
hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Permitted Prepetition Claim Payment" in its entirety and
replacing it as follows:
PERMITTED PREPETITION CLAIM PAYMENT means any payment, approved by an
order of the Bankruptcy Court (as adequate protection or otherwise) on account
of any Claim arising or deemed to have arisen prior to the Petition Date in
respect of (i) prepetition real estate taxes not to exceed $1,200,000 (ii)
prepetition employee wages, salaries, sick pay, vacation pay (including
"personal days"), holiday pay, and other accrued compensation; (iii)
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obligations to reimburse prepetition employee business expenses (including
travel, lodging, moving, and relocation expenses); (iv) obligations to make
payments for which employee payroll deductions were made; (v) obligations to
make prepetition contributions and pay benefits under employee benefit plans;
(vi) all costs and expenses incident to the payments and contributions described
in (i) through (v) (including payroll-related taxes and processing costs); (vii)
obligations to customers incurred in the ordinary course of business (including
honoring obligations arising from deposits, prepayments, gift certificates,
warranties, refunds, returns, exchanges and other credit balances); (viii)
obligations under the Borrowers' or any Subsidiary's self-insured workers'
compensation program; (ix) amounts owed to department lessees and licensees in
the ordinary course of Borrowers' or any Subsidiary's business; (x) amounts owed
to certain individuals or entities who, although not employees of Borrowers, (I)
provide ongoing vital services to Borrowers on a regular and recurring basis,
(II) are paid for the services they perform for Borrowers directly by Borrowers
and not by any agency (such as an employment agency), and (III) perform services
that, with respect to Borrowers, are performed by employees; (xi) amounts owed
to certain individuals or entities that (I) provide services to Borrowers'
customers on behalf of Borrowers, (II) have direct contact with Borrowers'
customers or take possession of customers' goods or property, (III) the
customers believe are employees of Borrowers, and (IV) are compensated by
Borrowers, who, in turn, receive customer payments for those services; (xii) the
claims of all contractors that have given or could give rise to mechanics' or
materialmen's liens against property of Borrowers or any Subsidiary, (xiii)
employee withholding taxes, sales, use and exise and other similar trust fund
amounts.
1.2 Section 7.1(e) of the Credit Agreement is hereby amended by
deleting clause (ii) in its entirety and replacing it as follows:
(ii) statement of operations and statements of cash flows for
the same periods in the prior year;
1.3 Sections 7.1, 7.2 and 7.3 of the Credit Agreement are hereby
amended by deleting the term "chief executive officer or chief financial
officer" and replacing such term with "chief executive officer, chief financial
officer or treasurer."
1.4 Section 8.2 of the Credit Agreement is hereby amended by deleting
the term "$5,000,000" and replacing such term with the term "$8,300,000."
2. CONSENT.
The Agent and the Lenders hereby consent to the asset purchase
agreement dated as of December 15, 1997 (the "Asset Purchase Agreement") between
LFC, Xxxxx and Xxxxxx-Xxxxxx Company ("Xxxxxx-Xxxxxx") whereby substantially all
of the assets of Xxxxx will be sold to Xxxxxx-Xxxxxx and agree that the Asset
Purchase Agreement and the transactions contemplated thereby will not constitute
an Event of Default under the Credit Agreement or any of the other Credit
Documents.
3. CONDITIONS PRECEDENT.
This Amendment shall become effective upon satisfaction of the
following condition:
The Agent shall have received ten (10) copies of this
Amendment, duly executed by the LFC Funds Administrator, each of the Borrowers,
and each of the Lenders.
4. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers hereby represents and warrants to each of the
Agents and Lenders that, after giving effect to this Amendment:
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(a) 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);
(b) no Default or Event or Default has occurred which has not
been waived (or, in the case of an Event of Default, cured) pursuant to
the terms of the Credit Agreement;
(c) this Amendment, and the Credit Agreement as amended
hereby, constitute legal, valid and binding obligations of the LFC
Funds Administrator and each of the Borrowers and are enforceable
against such Persons in accordance with their respective terms; and
(d) 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,
except such consents and approvals as shall have been obtained.
5. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
5.1 Upon the effectiveness 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 a
reference to the Credit Agreement as amended hereby.
5.2 Except as expressly set forth herein, (i) the execution
and delivery of this Amendment shall in no way affect any of the
respective rights, powers or remedies of the Agent or any of the
Lenders with respect to any Event of Default nor constitute a waiver of
any provision of the Credit Agreement or any of the other Credit
Documents and (ii) all of the terms and conditions of the Credit
Agreement, the other Credit Documents and all other documents,
instruments, amendments and agreements executed and/or delivered by the
Borrowers and/or the LFC Funds Administrator pursuant thereto or in
connection therewith shall remain in full force and effect and are
hereby ratified and confirmed in all respects. The execution and
delivery of this Amendment by the Agent and each of the Lenders shall
in no way obligate the Agent or any of the Lenders at any time
hereafter to consent to any other amendment or modification of any term
of provision of the Credit Agreement or any of the other Credit
Documents, whether of a similar or different nature.
6. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS AND DECISIONS OF THE STATE OF NEW YORK.
7. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. COUNTERPARTS. 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.
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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/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity
and in its capacity as the LFC Funds
Administrator
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE INCORPORATED, a
Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX SHOPPING SERVICE, INC., a
Florida corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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XXXXXX FURNITURE COMPANY OF THE
MIDWEST, INC., a Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE COMPANY OF THE
PACIFIC, INC., a California corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXX X. XXXXX REALTY COMPANY, an
Illinois corporation
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
AGENT:
BT COMMERCIAL CORPORATION, in its
capacity as Agent
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President
REVOLVING LENDERS:
BT COMMERCIAL CORPORATION, a Delaware
corporation in its respective
capacities as Revolving Lender and
Collateral Agent
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President
CARGILL FINANCIAL SERVICES CORPORATION,
in its capacity as Revolving Lender
By: /s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
FINOVA CAPITAL CORPORATION, it its
capacity as Revolving Lender
By: /s/ XXXXX RUIAWITZ
Name: Xxxxx Ruiawitz
Title: Assistant Vice President
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XXXXXX FINANCIAL, INC., in its capacity
as Revolving Lender
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Vice President
LASALLE NATIONAL BANK, in its capacity
as Revolving Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXX
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CONGRESS FINANCIAL CORPORATION
(CENTRAL), in its capacity as Revolving
Lender
By: ___________________________________
Name: _________________________________
Title: ________________________________
TRANSAMERICA BUSINESS CREDIT
CORPORATION, in its capacity as
Revolving Lender
By: /s/ XXXXXX XXXXX
Name: Xxxxxx Xxxxx
Title: Senior Vice President
SILVER OAK CAPITAL L.L.C., in its
capacity as Revolving Lender
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
NATIONSCREDIT COMMERCIAL CORPORATION,
THROUGH ITS NATIONSCREDIT COMMERCIAL
FUNDING DIVISION; in its capacity as
Revolving Lender
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Vice President
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TERM LENDER:
SILVER OAK CAPITAL L.L.C., in its
capacity as Term Lender
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
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