EXHIBIT 10.23.3
THIRD AMENDMENT TO
CREDIT AGREEMENT AND FORBEARANCE
THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE (this
"Agreement") is entered into as of October 11, 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") and
that certain Second Amendment to Credit Agreement, Forbearance and Waiver dated
as of September 7, 1999 (the "Second Amendment") and as further amended,
modified, supplemented, extended or restated from time to time, the "Credit
Agreement");
WHEREAS, the following Events of Default exist under the Credit
Agreement (collectively, the "Acknowledged Events of Default"): (1) the Credit
Parties have failed to furnish to the Administrative Agent and the Lenders the
financial statements for fiscal year 1999 which are required by Section 7.1(a)
of the Credit Agreement to be delivered to the Administrative Agent and the
Lenders within 90 days after the close of such fiscal year; (2) the Credit
Parties have failed to furnish to the Administrative Agent and the Lenders both
the financial statements as of April 30, 1999 and the financial statements as of
July 31, 1999 which are required by Section 7.1(b)(i) of the Credit Agreement to
be delivered to the Administrative Agent and the Lenders within 45 days of the
close of the fiscal quarters ending April 30, 1999 and July 31, 1999; (3) the
Credit Parties have failed to furnish to the Administrative Agent and the
Lenders the financial statements as of the end of May, 1999, June, 1999 and
August, 1999 which are required by Section 7.1(b)(ii) of the Credit Agreement to
be delivered to the Administrative Agent and the Lenders within 30 days of the
end of such calendar months; (4) an Executive Officer of the Borrower has failed
to deliver to the Administrative Agent and the Lenders the officer's
certificates required by Section 7.1(c) of the Credit Agreement which are to be
delivered with the financial statements referenced in subclauses (1) and (2)
above; (5) the Credit Parties have failed to furnish to the Administrative Agent
and the Lenders a certificate of the accountants conducting the annual audit of
the financial statements referenced in subclause (1) above which are required by
7.1(f) of the Credit Agreement to be delivered within 90 days after the close of
fiscal year 1999; (6) the field examination with respect to the Borrower's
accounts receivable and inventory failed to demonstrate that the margined value
of the Borrower's accounts receivable and inventory, together with the value
attributed to the Executive Buildings and the amount of cash in the Cash
Collateral Account totaled at least $112,500,000 as required by Section 7.15(b)
of the Credit Agreement; (7) the Borrower has failed to deliver landlord
consents satisfactory to the Administrative Agent within 30 days of the Closing
Date as required by Section 7.15(d)(vii) of the Credit Agreement; and (8) each
Credit Party changed its fiscal year after the Closing Date in violation of
Section 8.10 of the Credit Agreement.
WHEREAS, pursuant to the terms of the First Amendment, the
Administrative Agent and the Lenders agreed to forbear from exercising their
rights and remedies arising from the Acknowledged Events of Default until
September 24, 1999 (the "Forbearance Termination Date") and to continue to make
available to the Borrower the Loans provided under the Credit Agreement;
WHEREAS, pursuant to the terms of the Second Amendment, the
Administrative Agent and the Lenders agreed to forbear from exercising their
rights and remedies arising from the Acknowledged Events of Default until
October 15, 1999 (the "Extended Forbearance Termination Date"), to waive the
Event of Default resulting from the failure of the Borrower to deliver to the
Administrative Agent the real estate documentation with respect to the Executive
Buildings within 30 days of the Closing Date as
required by Section 7.15(e) of the Credit Agreement, and to continue to make
available to the Borrower the Loans provided under the Credit Agreement;
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders agree to (i) extend the Extended Forbearance Termination Date until
November 15, 1999 (the "New Forbearance Termination Date") and (ii) continue to
make available to the Borrower the Loans provided under the Credit Agreement;
and
WHEREAS, the Administrative Agent and the Lenders are, upon and subject
to the terms and conditions specified in this Agreement, willing to (i) forbear
from exercising their rights and remedies arising from the Acknowledged Events
of Default until the New Forbearance Termination Date and (ii) continue to make
available to the Borrower the Loans.
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. AGREEMENT TO FORBEAR. Subject to the other terms and conditions of
this Agreement, the Administrative Agent and the Lenders agree to forbear
exercising their rights and
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remedies arising exclusively as a result of the Acknowledged Events of Default
until the New Forbearance Termination Date; PROVIDED, HOWEVER, that the
Administrative Agent and the Lenders shall be free to exercise any or all of
their rights and remedies arising on account of the Acknowledged Events of
Default at any time after the occurrence of a Forbearance Default (defined
below).
3. FORBEARANCE DEFAULTS. Nothing set forth herein or contemplated
hereby is intended to constitute an agreement by the Administrative Agent or the
Lenders to forbear the exercise of any of the rights and remedies available to
the Administrative Agent and/or the Lenders under the Credit Agreement and the
other Credit Documents (all of which rights and remedies are hereby expressly
reserved by the Administrative Agent and the Lenders) upon and after the
occurrence of a Forbearance Default. For purposes hereof, the term "Forbearance
Default" shall mean the existence or occurrence of any or all of the following:
(a) any Default or Event of Default under the Credit Agreement or any other
Credit Document other than the Acknowledged Events of Default, (b) a breach by
the Credit Parties of any term of this Agreement, (c) any Person shall commence
any suit or other legal proceeding against any Credit Party or any of its assets
to enforce any obligations for Indebtedness of any Credit Party to such Person
or (d) the acceleration of the Subordinated Debt prior to its stated maturity.
The Administrative Agent and the Lenders shall be free to exercise any or all of
their rights and remedies arising on account of any Default or Event of Default
under the Credit Agreement or any other Credit Document upon the earlier of (x)
the occurrence of a Forbearance Default and (y) the New Forbearance Termination
Date. This Agreement is a Credit Document. Furthermore, notwithstanding any term
to the contrary contained in the Credit Agreement or any other Credit Document,
if the Subordinated Debt is accelerated prior to its stated maturity, (i) the
Administrative Agent and the Lenders shall be free to exercise any or all of
their rights and remedies under the Credit Agreement (including, without
limitation, all rights contained in Section 9.2 of the Credit Agreement) or any
other Credit Document and (ii) the Lenders shall not be required to make any
Loans to the Borrower.
4. REVOLVING LOAN COMMITMENT. The two provisos in Section 2.1(a) of the
Credit Agreement are hereby amended and restated in their entirety to read as
follows:
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 (A) the lesser of (x) the
Revolving Committed Amount and (y) the Borrowing Base Assets and (B)
until such time as the Indenture Default is cured or an Acceleration
Event occurs, $32,500,000 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.
5. SALE OR LEASE OF ASSETS. The first paragraph of Section 8.5 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
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8.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its
business or assets whether now owned or hereafter acquired, including,
without limitation, inventory, receivables, equipment, real property
interests (whether owned or leasehold), and securities, other than (a)
any inventory sold or otherwise disposed of in the ordinary course of
business; (b) the sale, lease, transfer or other disposal by a Credit
Party (other than the Borrower) of any or all of its assets to another
Credit Party; (c) obsolete, slow-moving, idle or worn-out assets no
longer used or useful in its business or the trade in of equipment for
equipment in better condition or of better quality; (d) the transfer of
assets which constitute a Permitted Investment; (e) the lease or
sublease of real property interests in the ordinary course of business;
(f) accounts receivable and related rights and interests sold to GE
Capital pursuant to the terms of the GE Capital Dealer Agreement; (g)
leases related to vans for MaxCare franchises not to exceed $3,500,000,
in the aggregate, during the term of this Credit Agreement; (h) the
sale of that certain real property owned by the Borrower and located at
0000 Xxxxx Xxxxxxx 00, Xxxxxx, Xxxxx Xxxxxxxx; PROVIDED that the
proceeds from the sale of such real property (net of reasonable
transaction costs payable to third parties and taxes paid or a good
faith estimate of the taxes payable with respect to such proceeds)
shall be deposited in the Cash Collateral Account and shall be subject
to the terms of the Credit Documents relating to the Cash Collateral
Account; and (i) other sales of assets not to exceed $2,500,000, in the
aggregate, during the term of this Credit Agreement in connection with
the closing and liquidation of retail stores.
6. 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.
7. 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 such other
documents and information as it deems reasonably necessary.
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8. 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) other than the Acknowledged
Events of Default 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
representation that an executed original shall be delivered.
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(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.
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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
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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
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Title: VP of each of the foregoing
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Guarantors
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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
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Name: Xxxxx X. Xxxxxxx
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Title: Vice Presidents
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