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EXIBIT 10.23.3
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of August 7, 1998 among THE MAXIM GROUP, INC., a Delaware
corporation ("Maxim"), certain Subsidiaries of Maxim identified on the signature
pages hereto (together with Maxim, the "Borrowers"), the Lenders party hereto
and NATIONSBANK, N.A., as Administrative Agent for the Lenders (the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Credit Agreement (as defined
below).
RECITALS
WHEREAS, the Borrowers, the Lenders and the Administrative
Agent entered into that certain Credit Agreement, dated as of August 26, 1997,
as amended by that certain letter agreement dated as of September 24, 1997 and
that certain Second Amendment, Waiver and Consent dated as of April 9, 1998 (as
further amended or modified from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend
certain terms and conditions of the Credit Agreement as more fully described
below; and
WHEREAS, the Lenders have agreed to amend certain terms of the
Credit Agreement, subject to the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. Definitions.
(a) Section 1.1 of the Credit Agreement is hereby
amended by adding (in alphabetical order) the following new defined terms to
read as follows:
"Acquired Company" means Xxxx Carpet Showplace,
Inc., a Georgia corporation.
"Merger Agreement" means that certain Agreement and
Plan of Merger dated as of June 23, 1998 between Maxim, CMAX Acquisition, Inc.,
Xxxx Industries, Inc. and Xxxx Carpet Showplace, Inc.
"NationsBank" means NationsBank, N.A., a national
banking association.
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(b) The definition of "Administrative Agent" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Administrative Agent" means NationsBank, N.A. in its capacity
as administrative agent hereunder, and any successor thereto
appointed pursuant to Section 11.9.
(c) The definition of Applicable Margin in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Applicable Margin" means (a) with respect to any LIBOR Rate
Loan, 1.50% and (b) with respect to any Base Rate Loan, 0%.
(d) The definition of "Borrowing Base" in Section 1.1 of the Credit
Agreement is hereby amended by deleting the figure "$50,000,000" that
appears in line 2 of the definition of "Borrowing Base" and replacing it
with "$110,000,000".
(e) The definition of "Bridge Note" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"Bridge Note" means that certain promissory note dated as of
April 9, 1998 issued by the Owner-Trustee and NationsBank (as
assignee in interest of First Union) acting in its capacity as
co-trustee under the Trust Agreement, to NationsBank (as assignee
in interest of First Union) in the principal face amount of
$12,610,000.
(f) The definition of "Certificate" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"Certificate" means that certain Certificate dated as of April
9, 1998 issued by the Owner-Trustee to NationsBank (as assignee in
interest of First Union) in the principal face amount of $390,000.
(g) The definition of "Expiration Date" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Expiration Date" means October 6, 1998.
(h) The definition of "Guaranty" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"Guaranty" means that certain Guaranty Agreement dated as of
April 9, 1998 by the Borrowers in favor of NationsBank (as
assignee in interest of First Union) pursuant to which each of the
Borrowers has jointly and severally guaranteed the payment
obligations of the Owner-Trustee under the Bridge Note and the
Certificate.
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(i) The definition of "Issuing Bank" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
"Issuing Bank" means NationsBank, N.A., as issuer of a Letter of
Credit.
(j) The definition of "Swingline Lender" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Swingline Lender" means NationsBank, N.A., as the Lender with
respect to the Swingline Loans.
(k) The definition of "Swingline Committed Amount" in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"Swingline Committed Amount" means $0.
2. Revolver Loans. (a) The first sentence of Section 2.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Subject to the terms and conditions of this Agreement, each Lender
severally but not jointly agrees to make Revolver Loans to the
Borrowers jointly and severally from time to time from the Closing
Date through the Revolver Facility Termination Date as requested
by Maxim, on behalf of Borrowers, in accordance with the terms of
Section 2.2; provided that (i) the aggregate principal amount of
all outstanding Revolver Loans (after giving effect to any amount
requested) shall not exceed the lesser of (A) the Borrowing Base
less (x) the aggregate principal amount of Swingline Loans
outstanding less (y) the aggregate Conventional LOC Obligations or
(B) one hundred ten million dollars ($110,000,000) less (x) the
aggregate principal amount of Swingline Loans outstanding less (y)
the aggregate Conventional LOC Obligations and less (z) the
Guaranty Reserve (except with respect to any request or deemed
request for a Revolver Loan advance pursuant to Section 2.13
hereof) and (ii) the aggregate principal amount of Revolver Loans
from any single Lender shall not at any time exceed such Lender's
Revolver Loan Commitment.
(b) Section 2.2(a)(ii)(B) of the Credit Agreement is amended such that the
principal amounts of Base Rate Loans shall now be $500,000 or an integral
multiple of $100,000 in excess thereof.
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3. Swingline Loan Facility. The first sentence of Section 2.3 of the
Credit Agreement is hereby amended by deleting the reference to "First Union"
and replacing it with a reference to "NationsBank."
4. Letters of Credit. The first sentence of Section 2.5(a) of the Credit
Agreement is hereby amended by deleting the reference to the figure
"$50,000,000" and replacing it with a reference to the figure "$110,000,000".
5. Repayment of Guaranty. Section 2.13 of the Credit Agreement is hereby
amended by deleting all references to "First Union" in such Section 2.13 and
replacing it with references to "NationsBank".
6. Use of Proceeds. Section 2.9 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
SECTION 2.9 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans (a) to pay the cash portion of the purchase price for the
Acquired Company pursuant to the Merger Agreement, (b) to refinance the
existing Debt of the Borrowers and (c) for working capital and general
corporate requirements of the Borrowers, including the payment of certain
fees and expenses incurred in connection with the transactions
contemplated hereby.
7. Interest Rate Options. The third sentence of Section 3.1(a) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Commencing on the first day of the Initial Interest Period, subject to
the provisions of this Section 3.1, at the election of the Borrowers with
respect to whether a Loan will be a Base Rate Loan or a LIBOR Rate Loan,
the Loans shall bear interest at the Base Rate plus the Applicable Margin
or the LIBOR Rate plus the Applicable Margin.
8. Applicable Margin. Section 3.1(c) and Section 3.1(d) of the Credit
Agreement are each hereby deleted in their entirety from the Credit Agreement.
9. Commitment Fee. Section 3.3(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Commitment Fee. In consideration of the Revolving Loan Commitments
hereunder, the Borrowers shall pay to the Administrative Agent for the
account of the Lenders, a non-refundable commitment fee equal to 0.25%
per annum (based on a 360 day year) on the average daily unused portion
of the Swingline Committed Amount and the aggregate Revolver Loan
Commitment. The commitment fee shall be payable in arrears on the last
Business Day of each calendar quarter and on the Revolver Facility
Termination Date. Such commitment fee shall be distributed by the
Administrative Agent between the Lenders pro rata in accordance with the
Lenders' respective Revolver Loan Commitment Percentages.
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10. Financial Covenants. Section 8.1, Section 8.2, Section 8.3 and Section
8.4 of the Credit Agreement are each hereby deleted in their entirety from the
Credit Agreement.
11. Acquisitions. Notwithstanding Section 9.4 of the Credit Agreement, the
Lenders consent to the acquisition pursuant to the Merger Agreement.
12. Notices. Section 12.1(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Borrower: The Maxim Group, Inc.
000 XxxxXxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Executive
President/Finance
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to NationsBank, N.A.,
as Administrative Agent NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
NationsBank, N.A.
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services/Xxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: The addresses set forth on Schedule 1.1
13. Administrative Agent's Office. Section 12.1(c) of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
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(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office at NC1-001-15-04, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attn: Agency Services, or any subsequent
office which shall have been specified for such purpose by written notice
to the Borrowers and Lenders, as the Administrative Agent's office
referred to herein, to which payments due are to be made and at which
Loans will be disbursed.
14. Commitment Percentages. Schedule 1.1 of the Credit Amendment is
hereby amended and restated in its entirety to read as provided on Schedule 1.1
attached hereto.
15. Conditions Precedent. The effectiveness of this Amendment is subject
to receipt by the Administrative Agent of the following:
(a) multiple counterparts of this Amendment and the Notes, in each
case duly executed by each party thereto.
(b) certified copies of resolutions or authorization of each Borrower
approving and adopting this Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof.
(c) an opinion or opinions from counsel to the Borrower, in form and
substance satisfactory to the Administrative Agent, addressed to the
Administrative Agent on behalf of the Lenders and dated as of the date hereof.
(d) A fee, for its own account, in the amount of $1,709,625.
(e) Evidence satisfactory in form and substance to the Administrative
Agent that the Merger (as defined in the Merger Agreement) shall have been
consummated in accordance with the terms of the Merger Agreement. Receipt by the
Administrative Agent of the final Merger Agreement, together with all exhibits
and schedules thereto, certified by an officer of Maxim.
(f) Such other documents, instruments, agreements or information as
reasonably requested by the Administrative Agent.
16. Ratification of Credit Agreement. The term "Credit Agreement" as used
in each of the Loan Documents shall hereafter mean the Credit Agreement as
amended by this Amendment. Except as herein specifically agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full force and
effect according to its terms.
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17. Authority/Enforceability. Each of the Borrowers represents and
warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such
Person and constitutes such Person'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).
(c) 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
such Person of this Amendment.
18. No Default. The Borrowers represent and warrant to the Lenders that
(a) the representations and warranties of the Borrowers set forth in Article V
of the Credit Agreement are true and correct as of the date hereof and (b) no
event has occurred and is continuing which constitutes a Default or an Event of
Default under the Loan Documents.
19. Counterparts. This Amendment 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
executed counterparts by telecopy shall be effective as an original and shall
constitute a representation that an original will be delivered.
20. GOVERNING LAW. THIS AMENDMENT 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BORROWERS:
THE MAXIM GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------
Title: Executive Vice President
-------------------------
IMAGE INDUSTRIES, INC.
By: /s/ H. Xxxxxxx Xxxxxxx
--------------------------------
Name: H. Xxxxxxx Xxxxxxx
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Title: President
-------------------------
CARPETMAX OF KENTUCKY, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
CARPETMAX OF UTAH, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
CARPETMAX OF FLORIDA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
RNA ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
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GCO, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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CARPETMAX OF TEXAS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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CARPETMAX OF ALABAMA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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CARPETMAX OF INDIANA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
CARPETMAX OF NORTH CAROLINA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
-------------------------
INVESTOR MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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GCO CARPET OUTLET, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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MAXIM RETAIL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CARPETMAX OF IOWA, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CARPETMAX, L.P.
By: The Maxim Group, Inc., as its
sole general partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Executive Vice President-Finance
---------------------------------
TRI-R OF ORLANDO, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CARPETMAX OF PALM BEACH, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CREDITMAX CORP.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
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CARPETMAX OF NEW MEXICO, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CARPETMAX OF CHARLOTTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CLOUD CARPETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
CARPETMAX ALABAMA CONTRACT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
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Title: Vice President
---------------------------------
XXXXXX & XXXXXXX CARPETMAX OF
TENNESSEE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
MAXIM EQUIPMENT LEASING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
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CARPETMAX OF JACKSONVILLE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
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LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a Lender
and in its capacity as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
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SCHEDULE 1.1
SCHEDULE OF LENDERS AND COMMITMENTS
Revolving Loan SPLC
LENDER Commitment Commitment Percentage
------ ---------- ---------- ----------
NATIONSBANK, N.A. $110,000,000 $31,000,000 100%
TOTAL $110,000,000 $31,000,000 100%
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