EXHIBIT NUMBER 10.73
NINETEENTH AMENDMENT TO POSTPETITION
CREDIT AGREEMENT
THIS NINETEENTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT, dated as of
July 23, 2000 (this "Amendment"), is among XXXXXX FURNITURE INCORPORATED, a
Delaware corporation and a debtor and debtor in possession, XXXXXX FURNITURE
CORPORATION, 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, XXXXXX SHOPPING SERVICE, INC., a Florida corporation
and a debtor and debtor in possession, XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation and a debtor and debtor in possession, XXXXXX
FURNITURE COMPANY OF THE PACIFIC, INC., a California corporation and a debtor
and debtor in possession, XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation and a debtor and debtor in possession, XXXXXX FURNITURE
COMPANY OF THE MIDWEST REALTY, INC., a Colorado corporation and a debtor and
debtor in possession, XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY, INC., a
California corporation and a debtor and a debtor in possession, XXXXXX FURNITURE
COMPANY OF WASHINGTON REALTY, INC., a Washington corporation and debtor and a
debtor in possession, XXXXXX REINSURANCE CORPORATION, XXXX X. XXXXX COMPANY, an
Illinois corporation and a debtor and debtor in possession, and XXXX X. XXXXX
REALTY COMPANY, an Illinois corporation and a debtor and debtor in possession
and XXXXXX FURNITURE COMPANY OF MASSACHUSETTS, INC., a Massachusetts corporation
(collectively, the "Borrowers"), each Revolving Lender and Overadvance Term
Lender signatories hereto (collectively, the "Lenders") and BT COMMERCIAL
CORPORATION, a Delaware corporation, acting in its capacity as collateral agent
and agent for the Lenders (in such capacity, together with its successors in
such capacity, the "Agent"). Capitalized terms used in this Amendment and not
otherwise defined have the meanings assigned to such terms in the Postpetition
Credit Agreement dated as of September 5, 1997, as amended (as the same may be
further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrowers, the Lenders and the Agent.
PRELIMINARY STATEMENTS:
A. The Borrowers, the Lenders and the Agent are parties to the Credit
Agreement.
B. The Borrowers have requested that the Lenders and the Agent amend
the Credit Agreement in certain respects.
1
C. The Borrowers, the Lenders and the Agent have agreed to amend the
Credit Agreement on the terms and subject to the conditions of this Amendment.
AGREEMENT:
In consideration of the premises and the mutual agreements contained in
this Amendment, the Borrowers, the Lenders and the Agent agree as follows:
1. Amendments to Credit Agreement.
On the date each of the conditions set forth in Section 2 is satisfied
by the Borrowers (the "Closing Date"), the Credit Agreement is amended as
follows:
1.1 The definition of "Borrowing Base" contained in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Borrowing Base means, at any time, the sum at such time of:
(a) the Fixed Asset Sublimit, plus
(b) eighty-five percent (85%) of Eligible Accounts Receivable,
plus
(c) seventy-five percent (75%) of Eligible Inventory; provided
that the foregoing percentage may be adjusted by the Agent in the
exercise of its Permitted Discretion based upon appraisals of the
Borrowers' inventory prepared from time to time at the Agent's or the
Majority Lenders' direction, plus
(d) solely for the purposes of accepting the borrowing of an
Initial Overadvance, $10,000,000 (the "Initial Overadvance Amount");
provided, that, effective as of the earlier to occur of (i) ten (10)
Business Days after the date on which the Overadvance Term Lender
receives notice from the Agent that Excess Availability is less than
$12,000,000 as contemplated under clause (i) of Article 2C or (ii) the
date on which the proceeds of an Initial Overadvance are received by
the Agent for the account of the Debtors, the Initial Overadvance
Amount will be automatically reduced to zero (-0-); and provided
further, that (I) in the event that the principal amount of any Initial
Overadvance is repaid as contemplated under Article 2C, the Initial
Overadvance Amount will automatically be reestablished at $10,000,000
and (ii) notwithstanding anything to the contrary contained in this
Agreement or any of the other Credit Documents, (x) only the
Overadvance Term Lender shall have any obligation to fund an Initial
Overadvance and (y) prior to any date on which the Initial Overadvance
Amount is reduced to zero pursuant to the initial proviso to this
paragraph (d), the Revolving Lenders shall have no obligation
whatsoever to make any Revolving
2
Loan or other extension of credit under this Agreement to the extent
that, immediately before or after giving effect to such Revolving Loan
or extension of credit, Excess Availability is less than $10,000,000,
plus
(e) at any time that an Initial Overadvance is then
outstanding, an amount (the "Subsequent Overadvance Amount") equal to
the lesser of (x) $5 million and (y) the Unfunded Subsequent
Overadvance Commitment. For the purpose hereof, the "Unfunded
Subsequent Overadvance Commitment" shall mean, at any date, the
commitment of the Overadvance Term Lender to fund Subsequent
Overadvance Term Loans in an amount equal to $45,000,000 minus the
aggregate principal amount of all Subsequent Overadvance Term Loans
made by the Overadvance Term Lender prior to such date pursuant to
Article 2C(ii) hereof plus the aggregate principal amount of all
Subsequent Overadvance Term Loans repaid by the Borrowers to the
Overadvance Term Lender prior to such date pursuant to Article 2C(ii)
hereof. Notwithstanding anything to the contrary contained in this
Agreement or any of the other Credit Documents, (x) only the
Overadvance Term Lender shall have any obligation to fund a Subsequent
Overadvance and (y) unless the Unfunded Subsequent Overadvance
Commitment is zero, the Revolving Lenders shall have no obligation
whatsoever to make any Revolving Loan or other extension of credit
under this Agreement to the extent that, immediately before or after
giving effect to such Revolving Loan or extension of credit, Excess
Availability is less than $5,000,000, less
(f) the aggregate amount of the Borrowers' allowed
professional fees and disbursements to which the Postpetition
Obligations and the Prepetition Obligations may be subordinated
pursuant to the Interim Financing Order and the Permanent Financing
Order following a Default or an Event of Default; less
(g) an amount equal to one hundred percent (100) of the Net
Cash Disposition Proceeds from any Asset Disposition with respect to
any real property, other fixed assets or any leasehold interest in real
property of any Borrower;
provided, that so long as the LFC Funds Administrator has delivered a
current Borrowing Base Certificate to the Agent in accordance with the
requirements of Section 7.2, the Agent may rely on such Borrowing Base
Certificate for purposes of computing the amounts referred to in
clauses (b) and (c) above.
In addition, the Agent, in the exercise of its Permitted Discretion,
may (i) establish and increase or decrease reserves against Eligible
Accounts Receivable and Eligible Inventory, (ii) reduce the advance
rates provided for in this definition, or restore such advance rates to
any level equal
3
to or below the advance rates in effect as of the date of this Credit
Agreement, and (iii) impose additional restrictions (or eliminate the
same) to the standards of eligibility set forth in the definitions of
"Eligible Accounts Receivable" and "Eligible Inventory". The Agent will
not increase the advance rates without receiving prior consent of the
Majority Term Lenders and the Overadvance Term Lender.
1.2 Section 1.1 of the Credit Agreement is further amended by
adding the following definition to such Section in proper alphabetical order:
Secondary Notes mean the additional notes to be issued monthly by the
Borrowers to the Overadvance Term Lender, in form and substance satisfactory to
the Agent and Overadvance Term Lender, for fees incurred by the Borrowers
pursuant to the terms of the Fifth Amended and Restated Overadvance Term Note.
The Secondary Notes shall be secured by an interest in the Collateral pari passu
with the Overadvance Term Loan.
1.3 Article 2C to the Credit Agreement is hereby amended by
amending and restating subsection (ii) thereof in its entirety to read as
follows:
(ii) at any time that a Initial Overadvance is outstanding,
and upon receipt of notice from the Agent that Excess Availability is
less than $6,000,000 (which amount shall include the amount set forth
in subsection (e) in the definition of Borrowing Base), the Overadvance
Term Lender will make term loans (each a "Subsequent Overadvance") to
the Borrowers, as soon as reasonably practicable and in no event more
than 10 Business Days after receiving such notice from the Agent, each
in the original principal amount of $5,000,000. In no event may more
than nine Subsequent Overadvances be outstanding at any time.
Notwithstanding anything to the contrary contained in Section 4.7B and
Section 4.11 and provided that no Default or Event of Default then
exists, Borrowers shall repay the principal amount of one or more
Subsequent Overadvance(s) if Excess Availability, determined on a pro
forma basis after giving effect to such payment, would have been equal
to or greater than $7,000,000 for the five (5) consecutive Business
Days prior to the date of such prepayment.
1.4 No Permitted Prepayment of Overadvance Term Loan.
Until payment in full of all Postpetition Obligations in
respect of Revolving Loans, Term Loans and Letter of Credit Obligations
and termination of the Revolving Commitments pursuant to the provisions
hereof, and except as provided in Article 2C with respect to the
repayment of (i) any Initial Overadvance in the event that Excess
Availability is equal to or greater than $18,000,000 for five (5)
consecutive Business Days and (ii) any Subsequent Overadvance
4
in the event that Excess Availability, determined on a pro forma basis
after giving effect to such payment, would have been equal to or
greater than $7,000,000 for the five (5) consecutive Business Days
prior to the date of such prepayment, the Borrowers may not prepay or
make any other payment or distribution of any kind (in cash, securities
or otherwise but excluding, in the event there is no Actionable
Default, payments of accrued and unpaid interest) in respect of or in
connection with the Overadvance Term Loan at any time in whole or in
part and all such principal amounts otherwise distributable in respect
of or in connection with the Overadvance Term Loan shall be paid to the
Agent for allocation to the Postpetition Obligations in respect of
Revolving Loans, Letters of Credit Obligations and Term Loans as
provided herein until all such obligations are indefeasibly paid in
full in cash and the Revolving Commitments are fully terminated.
1.5 The following Section 4.7C is hereby added to the Credit
Agreement as follows:
4.7C No Permitted Prepayment of Secondary Notes.
Until payment in full of all Postpetition Obligations in
respect of Revolving Loans, Term Loans and Letter of Credit Obligations
and termination of the Revolving Commitments pursuant to the provisions
hereof, the Borrowers may not prepay or make any other payment or
distribution of any kind whether at maturity or otherwise, in cash,
securities or otherwise (but excluding (i) payments of fees by issuance
of additional Secondary Notes and (ii) in the event there is no
Actionable Default, payment of interest on such Secondary Notes) in
respect of or in connection with the Secondary Notes until Agent has
been indefeasibly paid in full in cash for allocation to the
Postpetition Obligations in respect of Revolving Loans, Letters of
Credit Obligations and Term Loans as provided herein and all such
obligations and the Revolving Commitments are fully terminated.
1.6 Section 5.2(d) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(d) The Borrowers will have Excess Availability of (i) if no
Initial Advance is then outstanding, at least $10,000,000 after giving
effect to such Revolving Loan or Letter of Credit; provided, that if an
Initial Advance is funded on such day by the Overadvance Term Lender as
set forth in Article 2C and remains outstanding, then the
representation and warranty set forth in this Section 5.2(d)(i) will
not be applicable or (ii) if an Initial Advance is then outstanding, at
least $5,000,000 after giving effect to such Revolving Loan or Letter
of Credit; provided, that if all nine of the Subsequent Advances have
been funded by the Overadvance Term Lender as set forth in Article 2C
and
5
remain outstanding, then the representation and warranty set forth in
this Section 5.2(d)(ii) will not be applicable.
2. Conditions Precedent.
This Amendment becomes effective upon satisfaction of the following
conditions:
2.1 Amendment Approval Order. This Amendment has been approved by
the Bankruptcy Court pursuant to an order (the "Amendment Approval Order"),
which order is in full force and effect and has not been reversed, modified,
amended, appealed or stayed. Each of the Agent and the Overadvance Term Lender
shall have been satisfied with the form and substance (and the timing of the
notice) of the motion for the entry of the Amendment Approval Order. In
addition, each of the Agent and the Overadvance Term Lender shall have been
satisfied with the form and substance of the Amendment Approval Order.
2.2 Expenses. The Agent shall have been reimbursed for all fees
and expenses incurred by the Agent in connection with this Amendment.
2.3 Documents. The Agent has received all of the following, each
duly executed and dated as of the Closing Date (or such other date as is
satisfactory to the Agent) in form and substance satisfactory to the Agent:
(a) Nineteenth Amendment. Ten copies of this Amendment
executed by the LFC Funds Administrator, the Borrowers, the Agent and
all Lenders;
(b) Fifth Amended and Restated Overadvance Term Note. For
delivery to the Overadvance Term Lender, a Fifth Amended and Restated
Overadvance Term Note, substantially in the form attached as Annex I
hereto; and
(c) Other. Such other documents as the Agent may reasonably
request, including but not limited to the Secondary Note in the form
attached as Annex II hereto.
3. Representations and Warranties.
Each of the Borrowers represents and warrants to the Agent and each
Lender that, after giving effect to this Amendment:
3.1 Representations and Warranties. 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).
6
3.2 Events of Default. No Default or Event of Default has occurred
which has not been waived (or, in the case of an Event of Default, cured) under
the terms of the Credit Agreement.
3.3 Enforceability. Upon approval by the Bankruptcy Court (as
contemplated by Section 2.1), this Amendment and the Credit Agreement, as
amended by this Amendment, will constitute legal, valid and binding obligations
of the LFC Funds Administrator and each of the Borrowers and will be enforceable
against such Persons in accordance with their respective terms.
3.4 Consents. 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 (as
contemplated by Section 2.1), except such consents and approvals as have been
obtained.
4. Reference to and Effect on the Credit Agreement and the Other
Credit Documents.
4.1 References. 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 by this Amendment.
4.2 Ratification. Except as expressly set forth in this Amendment,
all of the terms and conditions of the Credit Agreement and the other Credit
Documents remain in full force and effect and are ratified and confirmed in all
respects. The execution and delivery of this Amendment by the Agent and each of
the Lenders in no way obligates the Agent or any of the Lenders at any time
hereafter to consent to any other amendment or modification of any term or
provision of the Credit Agreement or any of the other Credit Documents, whether
of a similar or different nature.
5. Governing Law.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT IS
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND DECISIONS OF THE
STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
6. Headings; Counterparts.
Section headings in this Amendment are included for convenience of
reference only and do not constitute a part of this Amendment for any other
purpose. 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.
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/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its individual capacity and
it its capacity as the LFC Funds
Administrator
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE INCORPORATED, a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
8
XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX SHOPPING SERVICE, a Florida
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
9
XXXXXX FURNITURE COMPANY OF THE MIDWEST
REALTY, INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC
REALTY, INC., a California corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON
REALTY, INC., a Washington corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
10
XXXXXX FURNITURE COMPANY OF MASSACHUSETTS,
INC., a Massachusetts corporation
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
--------------------------------------
Title: SVP/Chief Financial Officer
--------------------------------------
11
AGENT:
BT COMMERCIAL CORPORATION, in its capacity
as Agent
By: /s/ XXXXX XXXXX
--------------------------------------
Name: Xxxxx Xxxxx
--------------------------------------
Title: Director
--------------------------------------
REVOLVING LENDERS:
BT COMMERCIAL CORPORATION, a Delaware
corporation in its respective capacities as
Revolving Lender and Collateral Agent
By: /s/ XXXXX XXXXX
--------------------------------------
Name: Xxxxx Xxxxx
--------------------------------------
Title: Director
--------------------------------------
FINOVA CAPITAL CORPORATION, in its capacity
as Revolving Lender
By: /s/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Authorized Signer
--------------------------------------
XXXXXX FINANCIAL, INC., in its capacity as
Revolving Lender
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------
Title: Assistant Vice President
--------------------------------------
LA SALLE NATIONAL BANK ASSOCIATION, in its
capacity as Revolving Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Sr. Vice President
--------------------------------------
12
TRANSAMERICA BUSINESS CREDIT CORPORATIONN,
in its capacity as Revolving Lender
By: /s/ XXXXXXX XXXXXX
--------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
GMAC BUSINESS CREDIT L.L.C., in its capacity
as Revolving Lender
By: /s/ XXXXXX XXXXX
--------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
OVERADVANCE TERM LENDER:
M.D. SASS CORPORATE RESURGENCE PARTNERS,
L.P.
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Managing Director
--------------------------------------
13
ANNEX I TO NINETEENTH AMENDMENT
AMENDED AND RESTATED OVERADVANCE TERM NOTE
[Attached]
14
FIFTH AMENDED AND RESTATED OVERADVANCE TERM NOTE
$55,000,000.00 July 31, 2000
FOR VALUE RECEIVED, each of the undersigned, (collectively, the
"Borrowers") jointly and severally promises to pay to the order of M.D. Sass
Corporate Resurgence Partners, L.P. (the "Overadvance Term Lender") at [ADDRESS]
in lawful money of the United States of America and in immediately available
funds at [DESCRIBE ACCOUNT] of the Credit Agreement, the principal amount of
FIFTY FIVE MILLION DOLLARS ($55,000,000.00), or such lesser amount as may then
constitute the unpaid aggregate principal amount of the Overadvance Term Loan
evidenced by this Note, on the Overadvance Maturity Date or such earlier date as
this Note may become due in accordance with the terms of the Credit Agreement
referred to below. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings assigned thereto in the Credit
Agreement.
Each of the Borrowers further agrees, on a joint and several basis, to
pay to the Overadvance Term Lender (i) interest on the unpaid principal amount
owing hereunder monthly in arrears on the last Business Day of each month of the
Borrowers at an interest rate per annum equal to 16%, from the date hereof until
this Note is paid in full in accordance with its terms and (ii) a fee (the
"Fee") in the amount of seventy-five (75) basis points per month on the
aggregate of (x) the unpaid principal amount owing hereunder plus (y) the
principal amount outstanding of any Secondary Notes referred to below until such
Notes are paid in full in accordance with their terms. The Borrower will pay the
Fee through the issuance of additional notes (the "Secondary Notes") in an
aggregate principal amount equal to the amount of the Fee that would be payable
with respect to this Note, if such Fee was paid in cash. The Secondary Notes
will bear interest and have interest paying features and provisions for cost and
expense reimbursement identical to this Note.
If any payment on this Note becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Overadvance Term Note referred to in and executed and
delivered pursuant to that certain Postpetition Credit Agreement dated as of
September 5, 1997 (as the same has been modified through (and including) the
nineteenth amendment thereto and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrowers, the Overadvance Term Lender, certain other financial
institutions as Lenders and BT Commercial Corporation, as Agent.
The Postpetition Obligations evidenced by this Note are secured by
certain Collateral Documents. Reference is made to such Collateral Documents and
the Credit Agreement for the terms and conditions governing the Collateral which
secured the Postpetition Obligations. Except as provided in the Credit
Agreement, no principal payment or other distribution of any kind (in cash,
securities or otherwise but excluding, (i) in the event there is no Actionable
Default, payment of accrued and unpaid interest and (ii) issuance of Secondary
Notes) shall be made in respect of the Overadvance Term Loan at any time in
whole or in part, and all such principal amounts otherwise distributable in
respect of or in connection with the Overadvance Term Loan shall be paid to the
Agent for allocation to the Postpetition Obligations in respect of Revolving
Loans, Letters of Credit Obligations and Term Loans as provided herein, until
all such Postpetition Obligations owing are indefeasibly paid in full in cash
and the Revolving Commitments are fully terminated. In addition, as provided in
the Credit Agreement and except as set forth in the Credit Agreement, the
Overadvance Term Lender shall be bound by all modifications, extensions of
maturity, waivers and amendments to the Credit Agreement executed by the Agent,
Lenders, Majority Lenders and/or Majority Term Lenders (as applicable) and that
none of same shall require advance notice to, or the consent of, any Overadvance
Term Lender.
15
Borrowers promise to pay all reasonable costs and expenses, including
reasonable attorneys fees incurred in the collection and enforcement of this
Note. Borrowers and any endorsers of this Note hereby consent to renewals and
extensions of time to or after the maturity hereof, without notice.
Each Borrower (and each endorser, guarantor or surety hereof) hereby
waives presentment, demand, protest and notice of any kind. No failure to
exercise and no delay in exercising any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS NOTE SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, each Borrower has caused this Note to be executed
and delivered by such Borrower's duly authorized officer as of the date first
set forth above.
XXXXXX FURNITURE CORPORATION, a Florida
corporation,
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE INCORPORATED, a Delaware
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE REALTY CORPORATION, a Florida
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX SHOPPING SERVICE, INC., a Florida
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a
Colorado corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a
California corporation
16
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST REALTY,
INC., a Colorado corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY,
INC., a California corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY,
INC., a Washington corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXX X. XXXXX COMPANY, an Illinois corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
17
XXXXXX FURNITURE COMPANY OF MASSACHUSETTS, INC.,
a Massachusetts corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
18
ANNEX II TO NINETEENTH AMENDMENT
AMENDED AND RESTATED FORM OF SECONDARY NOTE
[Attached]
19
Secondary Note #___ for the period ending ______
AMENDED AND RESTATED FORM OF
SECONDARY NOTE
_______, 2000
FOR VALUE RECEIVED, each of the undersigned (collectively, the
"Borrowers") jointly and severally promises to pay to the order of M.D. Sass
Corporate Resurgence Partners, L.P. (the "Overadvance Term Lender") at [ADDRESS]
in lawful money of the United States of America and in immediately available
funds at [DESCRIBE ACCOUNT] of the Credit Agreement, the principal amount of
[AMOUNT OF NOTE ($______)], which principal amount shall be equal to the
aggregate of (i) seventy-five (75) basis points on the unpaid aggregate
principal amount of the Overadvance Term Loan evidenced by the Overadvance Term
Note plus (y) seventy-five (75) basis points on the unpaid aggregate principal
amount of any outstanding Secondary Notes previously issued in accordance with
the terms of the Overadvance Term Note, on the Overadvance Maturity Date or such
earlier date as this Note may become due in accordance with the terms of the
Credit Agreement referred to below. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement.
Each of the Borrowers further agrees, on a joint and several basis, to
pay to the Overadvance Term Lender interest on the unpaid principal amount owing
hereunder monthly in arrears on the last Business Day of each month of the
Borrowers at an interest rate per annum equal to sixteen percent (16%) from the
date hereof until this Note is paid in full in accordance with its terms, in
like money. Each additional Secondary Note issued pursuant to the Credit
Agreement will bear interest and have interest paying features and provisions
for cost and expense reimbursement identical to this Note.
If any payment on this Note becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is one of the Secondary Notes referred to in and executed and
delivered pursuant to that certain Postpetition Credit Agreement dated as of
September 5, 1997 (as the same has been modified through (and including) the
nineteenth amendment thereto and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrowers, the Overadvance Term Lender, certain other financial
institutions as Lenders and BT Commercial Corporation, as Agent. This Note is
issued, and the obligations evidenced hereby are, in addition to, and not in
payment, replacement or substitution of, any other Secondary Note issued prior
to the date hereof or any obligations evidenced thereby.
The Postpetition Obligations evidenced by this Note are secured by
certain Collateral Documents. Reference is made to such Collateral Documents and
the Credit Agreement for the terms and conditions governing the Collateral which
secured the Postpetition Obligations. Except as provided in the Credit
Agreement, no principal payment or other distribution of any kind in cash,
securities or otherwise (but excluding, in the event there is no Actionable
Default, payment of interest on this Note) shall be made in respect of the
obligations evidenced by this Note at any time in whole or in part, and all such
principal amounts otherwise distributable in respect of or in connection with
the obligations evidenced hereby shall be paid to the Agent for allocation to
the Postpetition Obligations in respect of Revolving Loans, Letters of Credit
Obligations and Term Loans as provided herein, until all
20
such Postpetition Obligations owing are indefeasibly paid in full in cash and
the Revolving Commitments are fully terminated. In addition, as provided in the
Credit Agreement and except as set forth in the Credit Agreement, the
Overadvance Term Lender shall be bound by all modifications, extensions of
maturity, waivers and amendments to the Credit Agreement executed by the Agent,
Lenders, Majority Lenders and/or Majority Term Lenders (as applicable) and that
none of same shall require advance notice to, or the consent of, any Overadvance
Term Lender.
Borrowers promise to pay all reasonable costs and expenses, including
reasonable attorneys' fees incurred in the collection and enforcement of this
Note. Borrowers and any endorsers of this Note hereby consent to renewals and
extensions of time to or after the maturity hereof, without notice.
Each Borrower (and each endorser, guarantor or surety hereof) hereby
waives presentment, demand, protest and notice of any kind. No failure to
exercise and no delay in exercising any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS NOTE SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
21
IN WITNESS WHEREOF, each Borrower has caused this Note to be executed
and delivered by such Borrower's duly authorized officer as of the date first
set forth above.
XXXXXX FURNITURE CORPORATION, a Florida
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE INCORPORATED, a Delaware
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE REALTY CORPORATION, a Florida
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX SHOPPING SERVICE, INC., a Florida
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a
Colorado corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a
California corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
22
XXXXXX FURNITURE COMPANY OF THE MIDWEST REALTY,
INC., a Colorado corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY,
INC., a California corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY,
INC., a Washington corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXX X. XXXXX COMPANY, an Illinois corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXX X. XXXXX REALTY COMPANY, an Illinois
corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
XXXXXX FURNITURE COMPANY OF MASSACHUSETTS, INC.,
a Massachusetts corporation
By:
------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
------------------------------------------
Title: Sr. Vice President/Chief Financial Officer
------------------------------------------
23