Exhibit 4
Execution Version
SECOND AMENDMENT AND WAIVER
TO
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT AND OMNIBUS AMENDMENT
TO GUARANTY AND NOTE PURCHASE
AGREEMENTS
THIS SECOND AMENDMENT AND WAIVER TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND OMNIBUS AMENDMENT
TO GUARANTY AND NOTE PURCHASE AGREEMENTS (this
“Amendment”) is made as of the 6
th day of October, 2009, by and among BASSETT
FURNITURE INDUSTRIES, INCORPORATED, a Virginia corporation (the
“Borrower”), BRANCH BANKING AND TRUST COMPANY
(“BB&T”), as agent (in such capacity, the
“Agent”) and Licensee Lender (as defined in the Credit
Agreement identified below), the banks listed on the signature
pages hereof (collectively referred to herein as the
“Banks”) and BASSETT FURNITURE INDUSTRIES OF NORTH
CAROLINA, LLC (formerly Bassett Furniture Industries of North
Carolina, Inc.), THE E.B. MALONE CORPORATION (“Malone
Corporation”), BASSETT DIRECT STORES, LLC (formerly Bassett
Direct Stores, Inc.), BASSETT DIRECT NC, LLC, and BASSETT DIRECT
SC, LLC (collectively referred to herein as the
“Guarantors”).
R E C I T A L S
:
The Borrower, the Agent, the
Guarantors and the Banks (including the Licensee Lender) have
entered into that certain Third Amended and Restated Credit
Agreement dated October 31, 2007, as amended by the First
Amendment thereto dated as of August 7, 2008 (as so amended,
the “Credit Agreement”; capitalized terms used in this
Amendment which are not otherwise defined shall have the respective
meanings assigned to them in the Credit Agreement). Pursuant to the
terms of the Credit Agreement, the Borrower and BB&T, as
Licensee Lender, have entered into each of the Guaranty and Note
Purchase Agreements identified on Schedule 1 hereto (collectively,
together with any other such Guaranty and Note Purchase Agreement
executed and delivered in connection with the Credit Agreement, the
“Licensee Loan Guarantees”).
The Borrower and Guarantors have
requested that the Agent and the Banks (i) amend the Credit
Agreement to modify certain provisions of the Credit Agreement as
more fully set forth herein and (ii) waive the Event of
Default in existence under Section 5.35 of the Credit
Agreement arising as a result of the Borrower’s failure to
comply with the minimum Consolidated Tangible Net Worth covenant
for the Fiscal Quarters ended February 28,
2009, May 30, 2009 and August 29, 2009 (the
“Existing Events of Default”). Subject to the terms and
conditions in this Amendment, the Banks and the Agent have agreed
to such waiver and amendments.
NOW, THEREFORE, in consideration of
the Recitals and the mutual promises contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower, the Guarantors, the
Agent and the Banks (including the Licensee Lender), intending to
be legally bound hereby, agree as follows:
SECTION 1. Recitals . The
Recitals are incorporated herein by reference and shall be deemed
to be a part of this Amendment.
SECTION 2. Amendments to Credit
Agreement . The Credit Agreement is hereby amended as set forth
in this Section 2 .
SECTION 2.01. Amendments to
Section 1.01 . Section 1.01 of the Credit Agreement
is hereby amended to:
(a) include the following new
definition:
“Second Amendment Effective
Date” shall have the meaning assigned to such term in the
Second Amendment and Waiver to Third Amended and Restated Credit
Agreement and Omnibus Amendment to Guaranty and Note Purchase
Agreements dated October 6, 2009, by and among the Banks, the
Agent, the Licensee Lender, the Borrower and the
Guarantors.
(b) amend and restate the following
definition to read as follows:
“Borrowing Base” shall
mean, based on the most recent Borrowing Base Certification Report
which as of the date of a determination of the Borrowing Base has
been received by the Agent, an amount equal to: (A) Adjusted
Debt, as of the date of determination, subtracted from (B) the
sum of (i) an amount equal to 75% (or such lesser percentage
as shall be mutually agreed upon by the Agent and Borrower from
time to time) of the face dollar amount of Eligible Accounts as at
the date of determination; and (ii) an amount equal to:
(a) 5% of the LIFO Reserve, as of the date of the
determination of the Borrowing Base, subtracted from (b) 40%
(or such lesser percentage as shall be mutually agreed upon by the
Agent and Borrower from time to time) of the dollar amount of the
Eligible Inventory, valued at the lower of its cost or market value
(as determined by the Agent in its sole discretion), as at the date
of determination. The Agent shall also (x) hold and subtract
from the Borrowing Base a reserve in an amount equal to 125% of the
amount, if any, by which the fair market value of the Marketable
Investments in the Borrower’s Securities Account (as such
terms are defined in Section 5.37) is less than $16,000,000
and (y) be entitled to hold and subtract any other reserve
against the Borrowing Base it deems necessary as security for
payment of the Notes, the obligations of the Guarantors under
Article X of this Agreement, and the obligations of the Borrower
under the Letter of Credit Agreements and the Licensee Loan
Guarantees.
(c) delete the following definitions
appearing therein: “Consolidated Comprehensive EBITDA”;
“Consolidated Interest Expense”; and
“EBITDA”.
SECTION 2.02. Amendments to
Section 2.06 . Section 2.06 of the Credit Agreement
is hereby amended as follows:
(a) by amending and restating
Section 2.06(a) to read in its entirety as follows:
(a) “Applicable Margin”
shall mean 2.75%.
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(b) by amending and restating the
first sentence of Section 2.06(b) to read in its entirety as
follows:
During each Interest Period in which
the Loan (excluding Swing Line Advances) is a Prime Rate Loan, such
Prime Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day during the applicable Interest Period,
at a rate per annum equal to the Prime Rate for such day plus the
Applicable Margin; provided , however , that in no
event shall the interest rate applicable to any such Prime Rate
Loan be less than 4.25% per annum.
(c) by amending and restating the
first sentence of Section 2.06(c) to read in its entirety as
follows:
During each Interest Period in which
the Loan is a Euro-Dollar Loan, such Euro-Dollar Loan shall bear
interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to
the sum of: (1) the Applicable Margin, plus (2) the
applicable Adjusted Monthly Libor Index for such Interest Period;
provided , however , that in no event shall the
interest rate applicable to any Euro-Dollar Loan be less than
4.25% per annum.
(d) by amending and restating
Section 2.06(e) to read in its entirety as follows:
(e) Each Letter of Credit Advance
shall bear interest on the outstanding principal amount thereof,
payable on demand, for each day from the date such Letter of Credit
Advance is made until paid in full at a rate per annum equal to the
Default Rate applicable to Euro-Dollar Loans.
SECTION 2.03. Amendment to
Section 2.07(a) . Section 2.07(a) of the Credit
Agreement is hereby amended and restated to read in its entirety as
follows:
(a) The Borrower shall pay to the
Agent for the ratable account of each Bank a facility fee equal to
the product of: (i) the aggregate of such Bank’s
Commitment (whether or not utilized) as then in effect (or, if the
Commitments are no longer in effect, the aggregate outstanding
principal amount of the Notes, Letter of Credit Advances, Licensee
Loans and Undrawn Amounts) times (ii) 0.50%. Facility fees
shall be payable in advance on the Second Amendment Effective Date
and thereafter on each anniversary of the Second Amendment
Effective Date until the Commitments have been terminated and the
Obligations have been paid in full; provided ;
however , that such facility fee shall be pro rated for the
year in which the Termination Date is scheduled to occur. The
Borrower agrees that all such facility fees shall be fully earned
and paid in immediately available funds when due and payable and
shall be non-refundable under any circumstance.
SECTION 2.04. Amendment to
Section 2.15(a) . Section 2.15(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(a) The Borrower may, prior to the
Termination Date, as set forth in this Section, request the Swing
Line Lender to make, and the Swing Line Lender may in its sole and
absolute discretion prior to the Termination Date make, Swing Line
Advances to the Borrower, in an aggregate principal amount at any
one time outstanding, not exceeding (i) prior to the Second
Amendment Effective Date, Five Million Dollars ($5,000,000) and
(ii) thereafter, Zero Dollars ($0); provided that the
aggregate principal
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amount of all Swing Line Advances,
together with the aggregate principal amount of all outstanding
Advances, Undrawn Amounts, Licensee Loans and Letter of Credit
Advances, at any one time outstanding shall not exceed the
aggregate amount of the Commitments of all of the Banks at such
time.
SECTION 2.05. Amendment to
Section 2.16 . Section 2.16 of the Credit Agreement
is hereby amended by adding the following clause (j) to the
end of such Section:
(j) Notwithstanding any other
provision of this Section 2.16, the Licensee Lender shall not,
and shall have no obligation to, disburse any Licensee Loans at any
time on or after the Second Amendment Effective Date. The Loan
Parties acknowledge and agree that the termination of the Licensee
Lender’s commitment to make Licensee Loans shall not alter,
modify or amend or otherwise affect in any way the Loan
Parties’ respective obligations set forth in this Agreement,
any Licensee Loan Document or any other Loan Document.
SECTION 2.06. Amendment to
Section 5.35 . Section 5.35 of the Credit Agreement
is hereby amended and restated to read in its entirety as
follows:
SECTION 5.35. Minimum
Consolidated Tangible Net Worth . Consolidated Tangible Net
Worth will at no time be less than: (a) (i) for each
Fiscal Quarter ending in Fiscal Year 2009, $95,000,000.00, and
(ii) for each Fiscal Quarter ending in Fiscal Year 2010,
$90,000,000.00; plus (b) 100% of the cumulative Net Proceeds
of Capital Stock/Conversion of Debt received during any period
after the Fiscal Year ended November 30, 2007, calculated
quarterly.
SECTION 2.07. Amendment to Agent
Commitment Amount . The Commitment amount of the Agent as set
forth on the signature page of the Credit Agreement is hereby
decreased from $45,000,000.00 to $30,000,000.00.
SECTION 2.08. Amendment to
Exhibit A . Exhibit A to the Credit Agreement is hereby amended
and restated to read as set forth on Exhibit A attached
hereto.
SECTION 3. Amendment to Licensee
Loan Guarantees . Each Licensee Loan Guarantee is hereby
amended by amending and restating clauses (a) and (b) of
the definition of “ Guaranty Trigger Event ”
therei