Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Form 10-K for Year Ended January 28, 1996 34 177K
2: EX-10.40 1st Amendment to Debtor in Possession Agreement 5 22K
3: EX-21 Subsidiaries of the Registrant 1 4K
4: EX-23 Consent of Independent Auditors 1 5K
5: EX-27 Financial Data Schedule 1 7K
EX-10.40 — 1st Amendment to Debtor in Possession Agreement
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EXHIBIT 10.40
FIRST AMENDMENT TO DEBTOR-IN-POSSESSION REVOLVING
CREDIT AND SECURITY AGREEMENT
This First Amendment to Debtor-In-Possession Loan and Security
Agreement ("Amendment") dated as of this _ day of March, 1996, by and between
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association
having its principal office at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479 ("BANK"), and AMBER'S STORES, INC., a Texas
corporation, with its principal office at 3737 Gus Thomasson Road, Mesquite,
Texas 75150 ("BORROWER" or "DEBTOR"), a debtor-in-possession in Case No.
395-35650-HCA-11 pending in the United States Bankruptcy Court for the Northern
District of Texas, Dallas Division ("CASE").
RECITALS
FIRST: On September 8, 1995, Debtor filed its voluntary petition with
the Bankruptcy Court commencing the Case. Pursuant to sections
1107 and 1108 of the Bankruptcy Code, Debtor as
debtor-in-possession has remained in possession and control of
its assets.
SECOND: On September 18, 1995, the Bank and the Debtor entered into
the Debtor-In-Possession Revolving Credit and Security
Agreement ("DIP Loan Agreement"; hereinafter, the DIP Loan
Agreement together with all documents executed and delivered
in connection therewith will be jointly referred to as the
"Loan Documents").
THIRD: Debtor is in default under the terms of the Loan Documents in
the following respects: (a) the Debtor is in default under the
terms of paragraph 6.26 of the Loan Documents in that it has
replaced or terminated certain "Key Officers" (as that term is
defined in the Loan Agreement) of Debtor including Ron Craft
and Lance Wimmer; (b) the Debtor is in default under paragraph
7.1(k) of the DIP Loan Agreement in that the Aggregate
Outstanding under the DIP Loan Agreement exceeds the Borrowing
Base by the amount of $350,000.00; and (c) the Debtor is in
default under the DIP Loan Agreement by virtue of its
inability to have a plan confirmed by January 15, 1996 ("Known
Defaults").
FOURTH: The Debtor has asked that the Bank agree to amend the DIP Loan
Agreement to allow for the extension of credit above the
Borrowing Base for a limited time. The Bank is willing to so
amend subject to the terms and conditions set forth in this
Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor and Bank agree as follows:
1. Definitions. Unless otherwise defined herein and
subject to the amendments contained herein, all capitalized terms used
herein shall have the meaning ascribed to them in the Loan Agreement.
2. Amendment to Definition of "Key Officer". The
definition of Key Officer set forth in Section 1.1 of the DIP Loan
Agreement shall be deleted in its entirety and shall be replaced by
the following:
"Key Officer" means J. Lamar Roberts or Neal Stevens
(at least through the confirmation of a Chapter 11
plan).
3. Addition of Definition of "Over Advance Amount".
Section 1.1 of the DIP Loan Agreement will be amended to add the
following definition:
"Over Advance Amount" shall have the meaning ascribed
to it in Section 2.1(a) herein.
4. Amendment to Section 2.1(a) of DIP Loan Agreement.
The following shall replace the first sentence of Section 2.1(a) of
the DIP Loan Agreement:
Bank agrees, on the terms and subject to the
conditions herein set forth, to make Advances to
Borrower from time to time during the period
commencing on the date hereof until the earlier of
June 1, 1996 or the date the Credit has been
terminated pursuant to Sections 2.3(d) or 7.1(a), in
an aggregate amount at any time outstanding, when
added to all other Obligations outstanding, including
the Letter of Credit Obligations, not to exceed the
lesser of (i) an amount equal to the Maximum Credit
Commitment, or (ii) an amount up to $500,000,
$350,000 of which will be immediately available, the
remainder of which will be available at the Bank's
discretion based upon criteria to be agreed upon by
the Bank and the Borrower ("Over Advance Amount")
plus the Borrowing Base as shown on the most recent
Borrowing Certificates submitted to Bank, or, if no
such certificates have been submitted by Borrower to
Bank on a timely basis, the Borrowing Base as
calculated in good faith by Bank, which Advances
shall be secured by the Collateral as provided in
Article III hereof; Bank agrees, on the terms and
subject to the conditions herein set forth, to make
Advances to Borrower from time to time during the
period from June 1, 1996 until the earlier of the
"Maturity Date" or the date the Credit has been
terminated pursuant to Sections 2.3(d) or 7.1(a), in
an aggregate amount at any time outstanding, when
added to all other Obligations outstanding, including
the Letter of Credit Obligations, not to exceed the
lesser of (i) an amount equal to the Maximum Credit
Commitment, or (ii) an amount equal to the Borrowing
Base as shown on the most recent Borrowing
Certificates submitted to Bank, or, if no such
certificates have been submitted by Borrower to Bank
on a
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timely basis, the Borrowing Base as calculated in
good faith by Bank, which Advances shall be secured
by the Collateral as provided in Article III hereof
5. Amendment to Section 2.1(a)(1). Section 2.1(a)(1)
shall be deleted in its entirety and shall be replaced by the
following:
For the period commencing on the date hereof and
continuing to June 1, 1996, Borrower will not request
any Advances under this Section 2.1(a) if, after
giving effect to such requested Advance, the sum of
the outstanding and unpaid Advances under this
Section 2.1(a) or otherwise would exceed the
Borrowing Base plus the Over Advance Amount; for the
period after June 1, 1996, Borrower will not request
any Advances under this Section 2.1(a) if, after
giving effect to such requested Advance, the sum of
the outstanding and unpaid Advances under this
Section 2.1(a) or otherwise would exceed the
Borrowing Base.
6. Amendment to Section 2.2(a). The fourth sentence in
Section 2.2(a) of the DIP Loan Agreement shall be deleted in its
entirety and shall be replaced by the following:
In addition, for the period prior to June 1, 1996,
the Letter of Credit Obligations plus all other
Obligations shall not exceed the lesser of the
Maximum Credit Commitment or the Borrowing Base plus
the Over Advance Amount; for the period after June 1,
1996, the Letter of Credit Obligations plus all other
Obligations shall not exceed the lesser of the
Maximum Credit Commitment or the Borrowing Base.
7. Amendment to Section.2.2(c). Section 2,2(c) shall be
amended by deleting Section 2.2(c) in its entirety and replacing it
with the following:
Mandatory Payment. If at any time prior to June 1,
1996, the Aggregate Outstanding exceeds the lesser of
(i) an amount equal to the Maximum Credit Commitment,
or (ii) an amount equal to the Borrowing Base plus
the Over Advance Amount, the Borrower shall
immediately pay into the Collateral Account an amount
sufficient to cause the Aggregate Outstanding to be
equal to or less than the lesser of (i) the Maximum
Credit Commitment, or (ii) the sum of the Borrowing
Base plus the Over Advance Amount; if at any time
after June 1, 1996, the Aggregate Outstanding exceeds
the lesser of (i) an amount equal to the Maximum
Credit Commitment, or (ii) an amount equal to the
Borrowing Base, the Borrower shall immediately pay
into the Collateral Account an amount sufficient to
cause the Aggregate Outstanding to be equal to or
less than the lesser of (i) the Maximum Credit
Commitment, or (ii) the sum of the Borrowing Base.
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8. Amendment to Exhibit A. The definition of Eligible
Inventory set forth in Exhibit A shall be amended by deleting
subparagraph 5 therein and replacing it with the following:
5. Intentionally Omitted.
9. Court Approval. As a condition precedent to the
effectiveness of the amendments contained herein, the Debtor must
obtain an order of the bankruptcy court approving this Amendment after
notice to all parties entitled to notice in accordance with the
Bankruptcy Rules and any applicable local rules or pursuant to a
properly entered court order.
10. Fees and Indemnification. Debtor agrees that Bank's
fees and actions to date have been reasonable. To the extent that the
Debtor has any claims against the Bank, Debtor hereby releases and
waives any and all such claims and reaffirms its obligations under
paragraph 8.8 of the DIP Loan Agreement to indemnify Bank against any
such claims.
11. No Waiver of Default. By entering into this
Amendment, the parties agree and acknowledge that the Bank has not and
does not waive any default, except the Known Defaults, of the Debtor
with respect to any obligation owed to the Bank. Except to the limited
extent provided herein, the Bank does not modify or amend the
covenants and obligations of the Debtor with respect to the Loan
Documents.
12. Amendments, Etc. No amendment, modification,
termination or waiver of any provision of this Amendment or consent to
any departure by the Debtor therefrom shall be effective unless the
same shall be in writing and signed or consented to, by the Bank, and
then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No notice to or
demand on the Debtor in any case shall entitle the Debtor to any other
or further notice or demand in similar or other circumstances.
13. Merger. All prior oral and written communications,
commitments, alleged commitments, promises, alleged promises,
agreements and alleged agreements by or between the Bank and the
Debtor with respect to the amendments provided herein are hereby
merged into this Amendment; shall be of no force or effect; and shall
not be enforceable unless expressly set forth in this Amendment.
14. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment.
15. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Minnesota.
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16. Successors and Assigns. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Debtor may
not assign or transfer its or his rights or obligations hereunder
without the prior written consent of the Bank.
17. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed to be an original
and all of which shall constitute one and the same instruments.
18. Loan Documents in Full Force and Effect. Subject to
the amendments set forth herein, the Loan Documents remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
AMBER'S STORES, INC.
By: /s/ J. Lamar Roberts
-----------------------------------
Title: VP Finance
--------------------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Thomas A. Swann
-----------------------------------
Title: Vice President
--------------------------------
Consented to by:
THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS FOR AMBER'S
STORES, INC.
By: /s/ Patrick Nelligan
---------------------------
Its:
--------------------------
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-K405’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 6/1/96 | | 2 | | 3 | | | None on these Dates |
| Filed on: | | 5/14/96 |
| For Period End: | | 1/29/96 |
| | 1/15/96 | | 1 |
| | 9/18/95 | | 1 |
| | 9/8/95 | | 1 |
| List all Filings |
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