EXHIBIT 10.23.1
FIRST AMENDMENT TO
CREDIT AGREEMENT AND FORBEARANCE
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE (this
"Agreement") is entered into as of July 23, 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, 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 the
financial statements as of April 30, 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 quarter ending April
30, 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 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 month; (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; (8) the Borrower has failed to
deliver to the Administrative Agent the real estate documentation with respect
to the Executive Buildings required by Section 7.15(e) of the Credit Agreement
within 30 days of the Closing Date as required by Section 7.15(e) of the
Credit Agreement; and (9) each Credit Party changed its fiscal year after the
Closing Date in violation of Section 8.10 of the Credit Agreement.
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders waive the Acknowledged Events of Default, and the Administrative
Agent and the Lenders have refused that request;
WHEREAS, the Borrower has now asked the Administrative Agent and the
Lenders 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; and
WHEREAS, the Administrative Agent and the Lenders are, upon and subject
to the terms and conditions specified in this Agreement, willing to forbear from
exercising their rights and remedies arising from the Acknowledged Events of
Default until the Forbearance Termination Date and to 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 remedies arising exclusively as a result of the
Acknowledged Events of Default until the 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 and the Lenders) upon and after the
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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 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. NEW DEFINITION. The following definition is hereby added to Section
1.1 of the Credit Agreement and shall read as follows:
"SHAW INDEBTEDNESS" means the unsecured indebtedness in the amount of
$11,927,000 evidenced by the Shaw Promissory Note.
5. AMENDED DEFINITION. The pricing grid in the definition of
"Applicable Percentage" set forth in Section 1.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
Applicable Applicable Applicable
Fixed Charge Percentage for Applicable Percentage for Percentage for
Pricing Coverage Eurodollar Loans Percentage for Standby Letter Trade Letter of
Level Ratio Base Rate Loans of Credit Fees Credit Fees Commitment Fees
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
I GREATER THAN OR EQUAL TO 2.00 to 1.0 1.25% 0.0% 1.25% 0.625%
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
II GREATER THAN OR EQUAL TO 1.75 to 1.0 1.625% 0.0% 1.625% 0.625%
but
LESS THAN 2.00 to 1.0
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
III GREATER THAN OR EQUAL TO 1.50 to 1.0 2.00% 0.25% 2.00% 0.625%
but
LESS THAN 1.75 to 1.0
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
IV GREATER THAN OR EQUAL TO 1.30 to 1.0 2.25% 0.50% 2.25% 0.625%
but
LESS THAN 1.50 to 1.0
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
V LESS THAN 1.30 to 1.0 2.50% 0.50% 2.50% 0.625%
- ------------- ------------------------------------- ----------------- ---------------- ----------------- -----------------
- ------------- ------------------
Applicable
Percentage for
Pricing Commitment
Level Fees
- ------------- ------------------
- ------------- ------------------
I 0.250%
- ------------- ------------------
- ------------- ------------------
II 0.300%
- ------------- ------------------
- ------------- ------------------
III 0.375%
- ------------- ------------------
- ------------- ------------------
IV 0.450%
- ------------- ------------------
- ------------- ------------------
V 0.500%
- ------------- ------------------
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6. 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, $22,500,000; PROVIDED, FURTHER, HOWEVER, that if an
Acceleration Event occurs, 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 may only exceed $22,500,000 if such excess amount is used
to retire the Securities 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.
7. PREPAYMENT OF INDEBTEDNESS. A subsection (c) is hereby added at the
end of Section 8.15 of the Credit Agreement and shall read as follows:
(c) notwithstanding any term to the contrary contained herein,
(i) make or offer to make any payments with respect to the Shaw
Indebtedness without the prior written consent of the Administrative
Agent, (ii) redeem or offer to redeem any of the Shaw Indebtedness
without the prior written consent of the Administrative Agent or (iii)
deposit any funds intended to discharge the Shaw Indebtedness without
the prior written consent of the Administrative Agent.
8. SHAW INDEBTEDNESS. The following sentence is hereby added to the
Credit Agreement after subsection (c) of Section 8.15 of the Credit Agreement
and shall read as follows:
The Shaw Indebtedness may not be amended or modified in any manner
without the prior written consent of the Administrative Agent.
9. 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.
10. CONDITIONS PRECEDENT. The effectiveness of this Agreement is
subject to the satisfaction of each of the following conditions:
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(a) The Administrative Agent shall have received original duly
executed 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 Borrower shall have delivered to the Administrative
Agent, with respect to the Real Property on which each of the Executive
Buildings is located, (i) a deed to secure debt and security agreement
executed by the Borrower in favor of the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, (ii) duly
executed UCC fixture financing statements for each appropriate
jurisdiction as is necessary, in the Administrative Agent's sole
discretion, to perfect the Administrative Agent's security interest in
the Collateral described therein, (iii) an opinion of counsel to the
Borrower in form and substance satisfactory to the Administrative
Agent, (iv) a mortgagee title policy, in form and substance
satisfactory to the Administrative Agent, together with such title
endorsements as the Administrative Agent may require, (v) an appraisal
from a qualified appraiser satisfactory to the Administrative Agent,
(vi) an environmental site assessment from an environmental consultant
satisfactory to the Administrative Agent, (viii) an ALTA survey, in
form and substance satisfactory to the Administrative Agent and (ix)
such other real estate collateral documentation as the Administrative
Agent may require.
(d) The Administrative Agent shall have received such other
documents and information as it deems reasonably necessary.
11. 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
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(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.
(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.
[remainder of page intentionally left blank]
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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/ Thomas P. Leahey
--------------------------------
Name: Thomas P. Leahey
------------------------------
Title: EVP Finance
------------------------------
GUARANTORS: CARPETMAX, L.P., a Georgia limited partnership
By: The Maxim Group, Inc. as its sole general partner
By: /s/ Thomas P. Leahey
------------------------------------------
Name: Thomas P. Leahey
----------------------------------------
Title: EVP Finance
---------------------------------------
[SIGNATURES CONTINUE]
BAILEY & ROBERTS 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
WADSWORTH & OWENS DECORATING CENTER,
INC., a Florida corporation
By: /s/ Thomas P. Leahey
----------------------------------------
Name: Thomas P. Leahey
----------------------------------------
Title: EVP Finance of each of the foregoing
Guarantors
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/ David H. Dinkins
---------------------------------------
Name: David H. Dinkins
---------------------------------------
Title: Vice President
---------------------------------------