EXHIBIT 4.8
ELEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of September 30,
1997 (this "Amendment"), to the Existing Credit Agreement (as defined below)
is entered into by and among TRIANGLE PACIFIC CORP., a Delaware corporation
(the "Borrower"), the various financial institutions parties hereto
(collectively, the "Lenders"), BANK OF AMERICA NT&SA as co-agent (the "Co-
Agent") for the Lenders and the BANK OF NOVA SCOTIA as the agent (the "Agent")
for the Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Co-Agent and the Agent have
heretofore entered into that certain Credit Agreement, dated as of August 4,
1993 (as amended or otherwise modified prior to the date hereof, "Existing
Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the Existing
Credit Agreement in certain respects as set forth below; and
WHEREAS, the Lenders are willing, on the terms and conditions set forth
below, to amend the Existing Credit Agreement in certain respects as provided
herein (the Existing Credit Agreement, as amended pursuant to the terms of
this Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the Lenders hereby agree as
follows:
PART I.
DEFINITIONS
SUBPART I.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment, including its preamble and recitals,
shall, except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural
form thereof):
"Affirmation and Consent" means the affirmation and consent executed and
delivered pursuant to Subpart 3.1.4.
"Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Co-Agent" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Eleventh Amendment" is defined in Subpart 3.1.
"Eleventh Amendment Effective Date" is defined in Subpart 3.1.
"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the preamble.
"Restructuring Subsidiaries" means, collectively, BHFG Corp.,
BHFL Corp., HFCG Corp., HFCL Corp., DTM Corp.
and Hartco Hardwood Flooring L.P., all organized
under the laws of the State of Delaware, and
▇▇▇▇▇ Hardwood Flooring L.P., organized under
the laws of the State of Texas.
"Restructuring Transactions" means the transactions described in Annex I
hereto.
SUBPART I.2. Other Definitions. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings provided
therein.
PART II.
AMENDMENTS TO AND CONSENTS UNDER THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Eleventh Amendment
Effective Date, and in reliance upon the representations and warranties made
herein and in each other agreement furnished to the Agent pursuant to the
terms hereof or in connection herewith, the parties hereto hereby agree that
the Existing Credit Agreement is hereby amended and the consummation of the
Restructuring Transactions is hereby consented to, all in accordance with this
Part II. Except as expressly so amended or modified by this Amendment, the
Existing Credit Agreement and each other Loan Document shall continue in full
force and effect in accordance with their respective terms.
SUBPART II.1. Amendments to Article I ("DEFINITIONS AND ACCOUNTING
TERMS"). Article I of the Existing Credit Agreement is hereby amended in
accordance with Subpart 2.1.1, Subpart 2.1.2 and Subpart 2.1.3.
SUBPART II.1.1. Section 1.1 ("Defined Terms") of the Existing Credit
Agreement is hereby amended by inserting the following definitions in the
appropriate alphabetical order:
"'Master Subordination Agreement' means that certain Intercompany
Subordination Agreement dated September 30, 1997 among the Borrower, the
Agent Hartco, RHF, Worldwide Kitchens and the Restructuring Subsidiaries.
"'Restructuring Subsidiaries' means, collectively, BHFG Corp., BHFL
Corp., HFCG Corp., HFCL Corp., DTM Corp. and Hartco Hardwood Flooring
L.P., all organized under the laws of the State of Delaware, and ▇▇▇▇▇
Hardwood Flooring L.P., organized under the laws of the State of Texas."
"'Restructuring Transactions' means the transactions described in
Item 7.2.11 to the Disclosure Schedule."
SUBPART II.1.2. The following defined terms in Section 1.1 ("Defined
Terms") of the Existing Credit Agreement are hereby amended in their entirety
to read as follows:
"'Other Rental Obligations' means (without duplication) all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing
or similar arrangement which, in accordance with GAAP, would not be
classified as capitalized leases."
"'Subsidiary' means, with respect to any Person, any Person of which
more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such Person
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency), or if such Person is not a corporation,
more than 50% of the outstanding shares, interests, participation or
other equivalents (however designated) of such Person, is at the time
directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person."
SUBPART II.1.3. Clause (b)(vi) of the definition of "Fixed Charge
Coverage Ratio" in Section 1.1 ("Defined Terms") is hereby amended to read in
its entirety as follows:
"(vi) the aggregate amount of Investments made by the Borrower and
its Subsidiaries during such period, but only to the extent that such
amount, when aggregated with the amount of all other Investments made
since the Eleventh Amendment Effective Date, exceeds $35,000,000."
SUBPART II.2. Amendments to Article VI ("REPRESENTATIONS AND
WARRANTIES"). Article VI of the Existing Credit Agreement is hereby amended
in accordance with Subparts 2.2.1, Subpart 2.2.2 and Subpart 2.2.3.
SUBPART II.2.1. Section 6.1 ("Organization, etc.") of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
"SECTION 6.1. Organization, etc. The Borrower and each of its
Subsidiaries which is a corporation or partnership is validly organized
and existing and in good standing under the laws of the State or other
jurisdiction of its organization, having all corporate or partnership
powers required to carry on its business and enter into and carry out the
transactions contemplated hereby. The Borrower and each of its
Subsidiaries is duly qualified to do business and is in good standing as
a foreign organization in each jurisdiction where the failure so to
qualify could have a Material Adverse Effect, and has full power and
authority and holds all requisite governmental licenses, permits and
other approvals to enter into and perform its Obligations under this
Agreement, the Notes and each other Loan Document to which it is a party
and to own and hold under lease its property and to conduct its business
substantially as currently conducted by it."
SUBPART II.2.2. Section 6.2 ("Due Authorization, Non-Contravention,
etc") of the Existing Credit Agreement is hereby amended by adding the words
"or partnership" after the word "corporate" as it occurs in the next to last
line of the first paragraph.
SUBPART II.2.3. Section 6.5 ("Financial Information") of the Existing
Credit Agreement is hereby amended by adding the words "or partnerships" after
the word "corporations" in the next to last line of the first paragraph.
SUBPART II.3. Amendments to Article VII ("COVENANTS"). Article VII of
the Existing Credit Agreement is hereby amended in accordance with Subparts
2.3.1, Subpart 2.3.2, Subpart 2.3.3, Subpart 2.3.4, Subpart 2.3.5, Subpart
2.3.6 and Subpart 2.3.7.
SUBPART II.3.1. Section 7.1.2 ("Compliance with Laws, etc.") of the
Existing Credit Agreement is hereby amended by adding the words "or
partnership" after the word "corporate" in the first line of clause (a) of
Section 7.2.2.
SUBPART II.3.2. Section 7.2.2 ("Indebtedness") of the Existing Credit
Agreement is hereby amended by:
(a) (i) Deleting the word "and" at the end of Section
7.2.2(c)(iii), (ii) deleting the period at the end of such subsection,
(iii) inserting a semi-colon and the word "and" at the end of clause
(c)(iv) of such subsection and (iv) inserting a new clause (v) to such
subsection which shall read as follows:
"(v) Indebtedness of the Borrower and Hartco existing on the
date on which the Restructuring Transactions are consummated which
is assumed by the Restructuring Subsidiaries as part of the
Restructuring Transactions."
(b) Amending Section 7.2.2(f) in its entirety to read as follows:
"(f) Indebtedness (other than trade payables incurred in the
ordinary course of business as allowed in clause (e) above) of (i)
the Borrower to any of its Subsidiaries that have delivered the
Master Subordination Agreement; (ii) a Subsidiary of the Borrower to
the Borrower; provided, that such Subsidiary shall not become liable
to any Person other than the Borrower in respect of such
Indebtedness, and the amount of such Indebtedness incurred after the
Closing Date shall not exceed an amount equal to the principal
amount of Credit Extensions attributable to the Net Asset Value of
Eligible Accounts and Eligible Inventory of such Subsidiary that
have been utilized in arriving at the then existing Borrowing Base
Amount; and in the event any such intercompany Indebtedness shall be
evidenced by a note or other instrument, such note or other
instrument shall be delivered to the Agent;"
(c) Amending Section 7.2.2(h) in its entirety to read as follows:
"(h) Indebtedness of the Borrower (i) in respect of its
guaranty of Other Rental Obligations of any of its Subsidiaries
incurred pursuant to the limits set forth in Section 7.2.8(k); and
(ii) under the Borrower Guaranty;"
(d) Renumbering the subsections following subsection (h) as
subsections (i), (j), (k), and (l), respectively.
(e) Amending Section 7.2.2(l) in its entirety to read as follows:
"(l) Indebtedness of Permitted Foreign Subsidiaries to Persons
other than the Borrower in an amount not in excess of $2,000,000,
and Contingent Liabilities of the Borrower in respect thereof
(calculated without duplication of specific Indebtedness and the
Contingent Obligations arising in respect thereof);"
SUBPART II.3.3. Section 7.2.3 ("Liens") of the Existing Credit Agreement
is hereby amended by:
(a) (i) inserting the word "and" following the semi-colon
appearing at the end of clause (c)(iii) of Section 7.2.3 and (ii)
inserting a new clause (iv) to such subsection which shall read as
follows:
"(iv) on assets of the Borrower and Hartco conveyed to the
Restructuring Subsidiaries as part of the Restructuring
Transactions, (including Liens securing the Obligations) which are
existing on the date on which the Restructuring Transactions are
consummated and which may be regranted, ratified and continued by
the Restructuring Subsidiaries;"
SUBPART II.3.4. Section 7.2.5 ("Investments") of the Existing Credit
Agreement is hereby amended by:
(a) (i) Deleting the word "and" following the semi-colon appearing
at the end of clause (e)(ii) of such subsection, (ii) inserting the word
"and" following the semi-colon appearing at the end of clause (e)(iii) of
such subsection and (iii) inserting a new clause (iv) to such subsection
which shall read as follows:
"(iv) Investments by the Borrower or any of its Subsidiaries in
any of the Restructuring Subsidiaries, or by any such Restructuring
Subsidiary in any other Restructuring Subsidiary, by way of
contributions to capital or loans or advances, in connection with
the Restructuring Transactions;"
SUBPART II.3.5. Section 7.2.8 ("Rental Obligations") is hereby amended
in its entirety to read as follows:
"SECTION 7.2.8. Rental Obligations Rental Obligations Rental
ObligationsRental Obligations. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into at any time any arrangement
which does not create a Capitalized Lease Liability and which involves
the leasing by the Borrower or any of its Subsidiaries from any lessor of
any real or personal property (or any interest therein), except Other
Rental Obligations which will not require the payment of an aggregate
amount of rentals by the Borrower and its Subsidiaries in any Fiscal Year
in excess of the amount set forth below opposite such Fiscal Year
(provided, that any calculation made for purposes of this Section shall
exclude any amounts required to be expended for maintenance and repairs,
insurance, taxes, assessments, and other similar charges and shall also
exclude any amounts owed with respect to leases between the Borrower and
any of its Subsidiaries or between Subsidiaries of the Borrower):
Aggregate Amount
Fiscal Year of Rentals
----------- ----------------
1996 $7,500,000
1997 $9,000,000
1998 $13,500,000
1999 $14,000,000
2000 $14,000,000."
SUBPART II.3.6. Section 7.2.11 (Asset Dispositions, etc.) of the
Existing Credit Agreement is hereby amended by (i) deleting the word "or" at
the end of subsection (d) thereof; (ii) deleting the period at the end of
subsection (e) thereof and (iii) inserting a new subsection (f) which shall
read as follows:
"(f) the sale, transfer, lease, contribution or conveyance of
assets of the Borrower and Hartco to the Restructuring Subsidiaries and
the conveyance of assets of Hartco to the Borrower as part of the
Restructuring Transactions."
SUBPART II.3.7. The Disclosure Schedule is hereby amended by adding
thereto Item 7.2.11 as set forth in Annex I hereto and by replacing Item 6.8
"Existing Subsidiaries" with Item 6.8 as set forth in Annex II hereto.
PART III.
CONDITIONS TO EFFECTIVENESS
SUBPART III.1. Eleventh Amendment Effective Date. This Amendment (and
the amendments and modifications contained herein) shall become effective, and
shall thereafter be referred to as the "Eleventh Amendment", on the date (the
"Eleventh Amendment Effective Date") when all of the conditions set forth in
this Subpart 3.1 have been satisfied.
SUBPART III.1.1. Delivery of Guaranties. The Agent shall have received,
for the benefit of each Lender, the Issuer and the Agent, a guaranty in
respect of the Obligations in a form reasonably satisfactory to the Agent,
duly executed and delivered by an Authorized Officer of each of the
Restructuring Subsidiaries or, if such Restructuring Subsidiary is a limited
partnership, its General Partner, dated as of the Eleventh Amendment Effective
date (the "Guaranties").
SUBPART III.1.2. Delivery of the Security Agreements. The Agent shall
have received, for the benefit of each Lender, the Issuer and the Agent, a
security agreement in a form reasonably satisfactory to the Agent, duly
executed and delivered by an Authorized Officer of each of the Restructuring
Subsidiaries or, if such Restructuring Subsidiary is a limited partnership,
its General Partner, dated as of the Eleventh Amendment Effective Date (the
"Security Agreements"), together with such opinions in form and substance and
from counsel satisfactory to Agent, as the Agent may require, together with
(i) executed copies of proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of any
Person (other than the Agent) in any collateral described in such security
agreement previously granted by any Person, (ii) Uniform Commercial Code
financing statements naming each of the Restructuring Subsidiaries as the
debtor and the Agent as the secured party to be filed under all jurisdictions
as may be necessary or, in the opinion of the Agent, desirable to perfect the
security interest of the Agent pursuant to such security agreement and (iii)
certified copies of Uniform Commercial Code requests for information or
similar search reports dated a date reasonably near the date of the
effectuation of the Restructuring Transactions listing all effective financing
statements which name any of Restructuring Subsidiaries as a debtor.
SUBPART III.1.3. Solvency Certificate. The Agent shall have received
for the benefit of each Lender, the Issuer and the Agent, a solvency
certificate of an Authorized Officer of Borrower, in a form reasonably
satisfactory to the Agent, dated as of the Eleventh Amendment Effective Date.
SUBPART III.1.4. Affirmation and Consent. The Agent shall have received
a duly executed copy of the Affirmation and Consent to this Amendment, in a
form reasonably satisfactory to the Agent, duly executed and delivered by each
Obligor.
SUBPART III.1.5. Consummation of the Restructuring Transactions. The
Restructuring Transactions shall have been completed without a material change
in the terms of the Restructuring Transactions from those set forth in Annex I
hereto, except as may be otherwise consented to by the Required Lenders.
SUBPART III.1.6. Expenses. The Agent shall have received for its own
account, or for the account of each Lender, as the case may be, reimbursement
of all the Agent's expenses incurred and payable by Borrower under Subpart
4.5.
SUBPART III.1.7. Opinions of Counsel. The Agent shall have received
such opinions, each dated the Eleventh Amendment Effective Date, in form and
substance and from counsel satisfactory to the Agent, as the Agent may
require.
SUBPART III.1.8. Legal Details, etc. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Agent and its counsel. The Agent and its counsel shall have received all
information and such counterpart originals or such certified or other copies
or such materials as the Agent or its counsel may reasonably request, and all
legal matters incident to the transactions contemplated by this Amendment
shall be satisfactory to the Agent and its counsel.
SUBPART III.1.9. Execution of Counterparts. The Agent shall have
received counterparts of this Amendment, duly executed and delivered on behalf
of the Borrower and each of the Lenders.
SUBPART III.1.10. Resolutions. etc. The Agent shall have received in
form and substance satisfactory to the Agent,
(a) a certificate, dated the Eleventh Amendment Effective Date, of
the Borrower's Secretary or Assistant Secretary as to
(i) resolutions of the Borrower's Board of Directors then in
full force and effect authorizing the execution, delivery and
performance of this Amendment and each other Loan Document executed
or to be executed by it in connection herewith; and
(ii) the incumbency and signatures of those officers of the
Borrower authorized to act with respect to this Amendment and each
other Loan Document executed or to be executed by it in connection
herewith,
upon which certificate each Lender may conclusively rely with respect to
the incumbency and signature of such Authorized Officers until it shall
have received a further certificate of the Secretary or Assistant
Secretary of the Borrower cancelling or amending such prior certificate;
(b) a certificate, dated the Eleventh Amendment Effective Date, of
the Secretary or Assistant Secretary of each of the Restructuring
Subsidiaries, or if such Restructuring Subsidiary is a limited
partnership, its General Partner, as to
(i) resolutions of the Board of Directors of each of the
Restructuring Subsidiaries, or if such Restructuring Subsidiary is a
limited partnership, its General Partner, then in full force and
effect authorizing the execution, delivery and performance of a
guaranty and security agreement (as such are described in Subparts
3.1.1. and 3.1.2, above) and each other Loan Document executed or to
be executed by each of the Restructuring Subsidiaries, in the name
and on behalf of each of the Restructuring Subsidiaries, in
connection herewith and therewith; and
(ii) the incumbency and signatures of those officers of each of
the Restructuring Subsidiaries, or if such Restructuring Subsidiary
is a limited partnership, its General Partner, authorized to act
with respect to the guaranty and the security agreement of each of
the Restructuring Subsidiaries described in Subparts 3.1.1 and 3.1.2
below and each other Loan Document executed or to be executed by
each of the Restructuring Subsidiaries or if such Restructuring
Subsidiary is a limited partnership, its General Partner, in the
name and on behalf of each of the Restructuring Subsidiaries, in
connection herewith and therewith,
upon which certificate each Lender may conclusively rely with respect to
the incumbency and signature of such Authorized Officers until it shall
have received a further certificate of the Secretary or Assistant
Secretary of each of the Restructuring Subsidiaries cancelling or
amending such prior certificate;
(c) a certificate, dated the Eleventh Amendment Effective Date, of
the Secretary or Assistant Secretary of each other Obligor as to
(i) resolutions of such Obligor's Board of Directors then in
full force and effect authorizing the execution, delivery and
performance of the Affirmation and Consent and each other Loan
Document executed or to be executed by it in connection herewith;
and
(ii) the incumbency and signatures of those officers of such
Obligor authorized to act with respect to the Affirmation and
Consent and each other Loan Document executed or to be executed by
it in connection herewith, upon which certificate each Lender
may conclusively rely with respect to
the incumbency and signature of such Authorized Officers until it shall
have received a further certificate of the Secretary or Assistant
Secretary of such Obligor cancelling or amending such prior certificate;
and
(d) such other documents (certified if requested) or certificates
as the Agent may reasonably request with respect to this Amendment, the
Affirmation and Consent, any other Loan Document or any Organic Document
or approval.
PART IV.
MISCELLANEOUS; REPRESENTATIONS
SUBPART IV.1. Cross-References.
References in this Amendment to any Part or Subpart are, unless otherwise
specified or otherwise required by the context, to such Part or Subpart of
this Amendment.
SUBPART IV.2. Loan Document Pursuant to Existing Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement (and,
following the Eleventh Amendment Effective Date, the Credit Agreement).
SUBPART IV.3. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. SUBPART IV.4. Full Force and Effect; Limited
Amendment. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants, conditions and other provisions of the Existing
Credit Agreement and the other Loan Documents shall remain unamended and
unwaived and shall continue to be, and shall remain, in full force and effect
in accordance with their respective terms. The amendments set forth herein
shall be limited precisely as provided for herein to the provisions expressly
amended herein and shall not be deemed to be an amendment to, waiver of,
consent to or modification of any other term or provision of the Existing
Credit Agreement, any other Loan Document referred to therein or herein or of
any transaction or further or future action on the part of the Borrower which
would require the consent of the Lenders under the Existing Credit Agreement
or any of the Loan Documents.
SUBPART IV.5. Payment of Expenses. The Borrower hereby agrees to pay
and reimburse the Agent for all of its reasonable expenses incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment and related documents, including all reasonable fees and
disbursements of counsel to the Agent; provided that neither the Agent nor any
Lender shall charge a fee to the Borrower in connection with the Restructuring
Transactions or this Amendment.
SUBPART IV.6. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART IV.7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART IV.8. Compliance with Warranties. No Default, etc. Both before and
after giving effect to the occurrence of the Eleventh Amendment Effective Date
and the amendments to the Existing Credit Agreement set forth above, the
Borrower represents and warrants to the Lenders that the following statements
are true and correct:
(a the representations and warranties set forth in Article VI
(excluding, however, those contained in Section 6.7) of the Existing
Credit Agreement and the representations and warranties set forth in
Article III of each Security Agreement and in Article III of each
Subsidiary Guaranty and in each other Loan Document are true and correct
in all material respects with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such
representations and warranties were true and correct as of such earlier
date);
(b except as disclosed by the Borrower to the Agent and the
Lenders pursuant to Section 6.7 of the Existing Credit Agreement,
(i no labor controversy, litigation, arbitration or
governmental investigation or proceeding is pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries which could result in a Material Adverse Effect
(including with respect to this Amendment or any other Loan Document
delivered in connection herewith); and
(ii no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 6.7 of the Existing Credit Agreement
which could result in a Material Adverse Effect (including with
respect to this Amendment or any other Loan Document delivered in
connection herewith); and
(iii no Default has occurred and is continuing. SUBPART
IV.9. Additional Representations. In order to induce the Lenders and the
Agents to enter into this Amendment, the Borrower hereby additionally
represents and warrants as follows: (a the execution and delivery
of this Amendment and the
performance by the Borrower and each of its Subsidiaries of each of their
respective obligations hereunder, under each other Loan Document, under
the Existing Credit Agreement as amended hereby and, upon the occurrence
of the Eleventh Amendment Effective Date, under the Credit Agreement are
within such Person's corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental
approvals (if any shall be required), and do not (i) contravene such
Person's Organic Documents, (ii) contravene any contractual restriction,
law or governmental regulation or court decree or order binding on or
affecting such Person or (iii) result in, or require the creation or
imposition of, any Lien on any of such Person's properties (other than
pursuant to a Loan Document); and
(b this Amendment, each other Loan Document, the Existing Credit
Agreement as amended hereby and, upon the occurrence of the Eleventh
Amendment Effective Date, the Credit Agreement are the legal, valid and
binding obligations of the Borrower and each of its Subsidiaries, as
applicable, enforceable in accordance with their respective terms (except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally and by principles of equity).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
TRIANGLE PACIFIC CORP.
By: ---------------------------------
Title:
THE BANK OF NOVA SCOTIA
By: ---------------------------------
Title:
BANK OF AMERICA NT&SA
By: ---------------------------------
Title:
COMERICA BANK - TEXAS
By: ---------------------------------
Title:
ANNEX I
RESTRUCTURING TRANSACTIONS
As used in the Amendment and the Existing Credit Agreement, the term
"Restructuring Transactions" means the transactions summarized on the
attachment hereto.
1. All sales, marketing and lumber buying operations will be conducted by
the Borrower, including any such operations previously conducted by
Hartco, and all accounts and notes receivables of Hartco will be
transferred to the Borrower.
2. All of the Borrower's hardwood flooring manufacturing operations (other
than those conducted by Hartco) will be transferred to ▇▇▇▇▇ Hardwood
Flooring L.P., a Texas limited partnership of which BHFL Corp. will be
the 99% limited partner and BHFG Corp. will be the 1% general partner.
All real property and tangible personal property, and all patents,
trademarks and other intellectual property, utilized in these operations
will be either transferred or leased by the Borrower to, and all
associated liabilities will be assumed by, ▇▇▇▇▇ Hardwood Flooring L.P.
3. All of Hartco's hardwood flooring and related manufacturing operations
will be transferred to Hartco Hardwood Flooring L.P., a Delaware limited
partnership to which HFCL Corp. will be the 99% limited partner and HFCG
Corp. will be the 1% general partner. All real property and tangible
personal property utilized in these operations and all patents,
trademarks and other intellectual property will be transferred by Hartco
to Hartco Hardwood Flooring L.P. or transferred to DTM Corp. and then
leased by DTM Corp. to Hartco Hardwood Flooring L.P., and all associated
liabilities will be assumed by Hartco Hardwood Flooring L.P. or DTM
Corp., as the case may be.
ANNEX II
ITEM 6.8 Existing Subsidiaries.
Corporate Subsidiaries of Borrower
State of Ownership
Name Organization %
---- ------------ --------
Worldwide Kitchens, Inc. Delaware 100%
Hartco Flooring Company Tennessee 100%
BHFG Corp. Delaware 100%
BHFL Corp. Delaware 100%
▇▇▇▇▇▇▇ Hardwood Flooring, Inc. Delaware 100%
Corporate Subsidiary of Hartco Flooring Company
DTM Corp. Delaware 100%
HFCG Corp. Delaware 100%
HFCL Corp. Delaware 100%
Limited Partnerships
▇▇▇▇▇ Hardwood Flooring L.P. Texas
Limited Partner - BHFL Corp. 99%
General Partner - BHFG Corp. 1%
Hartco Hardwood Flooring L.P. Delaware
Limited Partner - HFCL Corp. 99%
General Partner - HFCG Corp. 1%