Exhibit 10(d)
SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This Second Amendment to Debtor-In-Possession Credit Agreement (the
"Second Amendment") is made as of this 24th day of October, 2000 by and among
FLEET RETAIL FINANCE INC., as Administrative Agent and Collateral Agent
for the Lenders, a Delaware corporation, having its principal place of
business at 40 Broad Street, Boston, Massachusetts 02109; and
the LENDERS, and
HEILIG-MEYERS COMPANY, debtor and debtor-in-possession, a Virginia
corporation, having its principal place of business at 12560 West Creek
Parkway, Richmond, Virginia 23238 ("Heilig-Meyers"); and
HEILIG-MEYERS FURNITURE COMPANY, debtor and debtor-in-possession, a
North Carolina corporation, having its principal place of business at
12560 West Creek Parkway, Richmond, Virginia 23238 ("Furniture"); and
HEILIG-MEYERS FURNITURE WEST, INC., debtor and debtor-in-possession, an
Arizona corporation, having its principal place of business at 12560
West Creek Parkway, Richmond, Virginia 23238 ("West"); and
HMY ROOMSTORE, INC., debtor and debtor-in-possession, a Virginia
corporation, having its principal place of business at 12560 West Creek
Parkway, Richmond, Virginia 23238 ("RoomStore"); and
HMY STAR, INC., debtor and debtor-in-possession, a Virginia
corporation, having its principal place of business at 12560 West Creek
Parkway, Richmond, Virginia 23238 ("Star"); and
MACSAVER FINANCIAL SERVICES, INC., debtor and debtor-in-possession, a
Delaware corporation, having its principal place of business at 12560
West Creek Parkway, Richmond, Virginia 23238 ("Financial"); and
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
WHEREAS, on August 16, 2000, Heilig-Meyers, Furniture, West, RoomStore,
Star, and Financial, the Fleet Retail Finance Inc., as Administrative Agent and
Collateral Agent, Back Bay Capital Funding, LLC as Tranche B Administrative
Agent, CitiCorp USA, Inc., as Syndication Agent, Fleet National Bank, as Issuing
Bank, FleetBoston Robertson Stephens, Inc., as Arranger, and the Lenders entered
into that certain Debtor-In-Possession Credit Agreement (as amended and in
effect, the "Credit Agreement"); and
WHEREAS, the Loan Parties and the Lenders desire to modify certain of
the provisions of the Credit Agreement as set forth herein.
NOW, THEREFORE, it is hereby agreed as follows:
1. Capitalized Terms. All capitalized terms used herein and not otherwise
defined shall have the same meaning herein as in the Credit Agreement.
2. Amendments to Article I. The provisions of Article I of the Credit
Agreement are hereby amended as follows:
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(a) The definition of "Applicable Margin" is hereby amended by deleting
the first sentence after the chart included in such definition and
substituting the following in its stead:
The Applicable Margin shall be adjusted quarterly as of the first day
of each fiscal quarter, commencing with the fiscal quarter beginning
December 1, 2001, based upon the average Excess Availability for the
immediately preceding fiscal quarter.
(b) The definition of "Permitted Overadvance" is hereby amended by adding
the following immediately after the second proviso thereto:
; and further provided that in no event shall the Administrative Agent
make an Overadvance, if after giving effect thereto, the principal
amount of the Tranche A Credit Extensions would exceed the Tranche A
Commitments.
3. Amendment to Article V. The provisions of Article V of the Credit
Agreement are hereby amended as follows:
(a) By deleting the provisions of Section 5.01(c) of the Credit Agreement
and substituting the following in its stead:
within 30 days after the end of each fiscal month of Heilig-Meyers (i)
commencing with the fiscal month ending December 31, 2000, its
consolidated monthly operating results as of the end of and for such
fiscal month, with a comparison to the business plan, a summary of all
Capital Expenditures made during the subject month, and, (ii) without
duplication, a monthly operating report consistent with, and
containing the information set forth in, the report filed by the Loan
Parties with the Bankruptcy Court in the Proceedings;
(b) By deleting the provisions of Section 5.01(g) of the Credit Agreement
and substituting the following in its stead:
no later than November 17, 2000, a preliminary business plan for the
succeeding fiscal year, and on or before November 30, 2000, a final
business plan for such fiscal year which shall be reasonably
satisfactory in form and substance to the Agents.
(c) By deleting the provisions of Section 5.01(i) of the Credit Agreement
and substituting the following in its stead:
(i) on Thursday (x) of each week (or such more frequent periods as the
Administrative Agent may require, in its discretion, at any time that
Excess Availability is less than $25,000,000), a certificate in the
form of Exhibit E (a "Borrowing Base Certificate") showing the
Borrowing Base as of the close of business on the last day of the
immediately preceding week, each such Certificate to be certified as
complete and correct on behalf of the Loan Parties by a Financial
Officer of the Loan Parties; and (y) of each week, a statement of
actual cash flows for the immediately preceding week with a comparison
to the cash flows as set forth in the projections delivered pursuant
to Section 5.01(f) hereof;
4. Amendment to Article IX. The provisions of Section 9.02 (c)(iv) are
hereby amended by deleting the reference to Section 6.05(e) appearing therein.
5. Ratification of Loan Documents. Except as provided herein, all terms and
conditions of the Credit Agreement and of the other Loan Documents remain in
full force and effect. The Loan Parties each hereby ratify, confirm, and
reaffirm all of the representations and warranties contained therein.
6. Miscellaneous.
(a) This Second Amendment may be executed in several counterparts and by
each party on a separate counterpart, each of which when so executed
and delivered shall be an original, and all of which together shall
constitute one instrument.
(b) This Second Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect
the provisions hereof.
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(c) Any determination that any provision of this Second Amendment or any
application hereof is invalid, illegal or unenforceable in any respect
and in any instance shall not effect the validity, legality, or
enforceability of such provision in any other instance, or the
validity, legality or enforceability of any other provisions of this
Second Amendment.
(d) The Loan Parties shall pay on demand all costs and expenses of the
Agents and the Lenders, including, without limitation, reasonable
attorneys' fees in connection with the preparation, negotiation,
execution and delivery of this Second Amendment.
(e) The Loan Parties warrant and represent that the Loan Parties have
consulted with independent legal counsel of their selection in
connection with this Second Amendment and is not relying on any
representations or warranties of the Agent or the Lenders or their
counsel in entering into this Second Amendment.
IN WITNESS WHEREOF, the parties have hereunto caused this Second
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
HEILIG-MEYERS COMPANY
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: Senior Vice President
SUBSIDIARY LOAN PARTIES
HEILIG-MEYERS FURNITURE COMPANY
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: Senior Vice President
HEILIG-MEYERS FURNITURE WEST, INC.
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: Senior Vice President
HMY ROOMSTORE, INC.
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: Senior Vice President
HMY STAR, INC.
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: Senior Vice President
MACSAVER FINANCIAL SERVICES, INC.
By:/s/Paige H. Wilson
--------------------------------
Name: Paige H. Wilson
Title: President
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FLEET RETAIL FINANCE INC.,
as Administrative Agent, as Collateral
Agent, and as Lender
By:/s/Sally A. Sheehan
--------------------------------
Name: Sally A. Sheehan
Title: Director
BACK BAY CAPITAL FUNDING, LLC,
as Lender
By:/s/Kristan M. O'Connor
--------------------------------
Name: Kristan M. O'Connor
Title: Vice President
CITICORP USA, INC., as Lender
By:/s/David Jaffe
--------------------------------
Name: David Jaffe
Title: Vice President
GMAC BUSINESS CREDIT LID
as Lender
By:/s/John Buff
--------------------------------
Name: John Buff
Title: Director
HELLER FINANCIAL, INC.
as Lender
By:/s/Richard J. Holston
--------------------------------
Name: Richard J. Holston
Title: Assistant Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC., as Lender
By:/s/Elizabeth M. Lynch
--------------------------------
Name: Elizabeth M. Lynch
Title: Senior Vice President
THE CIT GROUP/BUSINESS CREDIT,
INC., as Lender
By:/s/Peter L. Skavla
--------------------------------
Name: Peter L. Skavla
Title: Vice President
FOOTHILL CAPITAL CORPORATION.,
as Lender
By:/s/Eileen Quinn
--------------------------------
Name: Eileen Quinn
Title: Assistant Vice President
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