Exhibit 10.11.14
AMENDMENT NO. 11 TO
RATIFICATION AND AMENDMENT AGREEMENT AND
AMENDMENT NO. 13 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 11 TO RATIFICATION AND AMENDMENT AGREEMENT AND
AMENDMENT NO. 13 TO LOAN AND SECURITY AGREEMENT, dated as of March
16, 2009 (this “Eleventh Ratification Amendment”),
by and among CONGOLEUM CORPORATION, a
Delaware corporation, as debtor and debtor-in-possession
(“Borrower”), CONGOLEUM FISCAL, INC., a New York
corporation, as debtor and debtor-in-possession
(“CFI”), CONGOLEUM SALES, INC., a New York corporation,
as debtor and debtor-in-possession (“CSI” and together
with CFI, collectively, “Guarantors” and each
individually, a “Guarantor”), and WACHOVIA BANK,
NATIONAL ASSOCIATION, successor by merger to Congress Financial
Corporation (“Lender”).
W I T
N E S S E T H
:
WHEREAS, Lender, Borrower and Guarantors have entered into
financing arrangements pursuant to which Lender may make loans and
advances and provide other financial accommodations to Borrower as
set forth in the Loan and Security Agreement, dated
December 10, 2001, between Lender and Borrower, as amended by
Amendment No. 1 to Loan and Security Agreement, dated September 19,
2002, between Lender and Borrower, Amendment No. 2 to Loan and
Security Agreement, dated as of February 27, 2003, among Lender,
Borrower and Guarantors, and as further amended and ratified by the
Ratification and Amendment Agreement, dated as of January 7, 2004
(the “Ratification Agreement”), between Lender and
Borrower, as acknowledged by Guarantors, Amendment No. 1 to
Ratification Agreement and Amendment No. 3 to Loan and Security
Agreement, dated as of December 14, 2004, between Lender and
Borrower, as acknowledged by Guarantors, Amendment No. 2 to
Ratification Agreement and Amendment No. 4 to Loan and Security
Agreement, dated as of January 13, 2005, between Lender and
Borrower, as acknowledged by Guarantors, Amendment No. 3 to
Ratification Agreement and Amendment No. 5 to Loan and Security
Agreement, dated as of June 7, 2005, between Lender and Borrower,
as acknowledged by Guarantors, Amendment No. 4 to Ratification
Agreement and Amendment No. 6 to Loan and Security Agreement, dated
as of December 19, 2005, as acknowledged by Guarantors, Amendment
No. 5 to Ratification Agreement and Amendment No. 7 to Loan and
Security Agreement, dated as of September 27, 2006 between Lender
and Borrower, as acknowledged by Guarantors, Amendment No. 6 to
Ratification Agreement and Amendment No. 8 to Loan and Security
Agreement, dated as of November 27, 2006 between Lender and
Borrower, as acknowledged by Guarantors, Amendment No. 7 to
Ratification Agreement and Amendment No. 9 to Loan and Security
Agreement dated as of June 12, 2007 between Lender and Borrower, as
acknowledged by Guarantors, Amendment No. 8 to Ratification and
Amendment Agreement and Amendment No. 10 to Loan and Security
Agreement dated as of December 11, 2007, between Lender and
Borrower, as acknowledged by Guarantors, Amendment No. 9 to
Ratification and Amendment Agreement and Amendment No. 11 to Loan
and Security Agreement dated as of June 4, 2008, between Lender and
Borrower, as acknowledged by Guarantors, and Amendment No. 10 to
Ratification and Amendment Agreement and Amendment No. 12 to Loan
and Security Agreement dated as of October 6, 2008, between Lender
and Borrower, as acknowledged by Guarantors, permitting debtor and
debtor-in-possession financing for Borrower and Guarantors,
as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or
replaced (all of the foregoing, as amended hereby and as the
same may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, collectively, the
“Loan Agreement”, and together with all agreements,
documents and instruments at any time executed and/or delivered in
connection therewith or related thereto, including the
Reaffirmation and Amendment of Guarantor Documents, dated as of
January 7, 2004, between Lender and Guarantors, as from time to
time amended, modified, supplemented, extended, renewed, restated
or replaced, collectively, the “Financing
Agreements”);
WHEREAS, Borrower and each Guarantor have each commenced a case
under Chapter 11 of Title 11 of the United States Code in the
United States Bankruptcy Court for the District of New Jersey and
have each retained possession of its assets and is authorized under
the Bankruptcy Code to continue the operation of its businesses as
a debtor-in-possession;
WHEREAS, Borrower and Guarantors have notified Lender that as of
December 31, 2008, Borrower and Guarantors will be unable to comply
with the Minimum EBITDA covenant as set forth in Section 9.23(c) of
the Loan Agreement;
WHEREAS, Borrower and Guarantors hereby acknowledge and agree that
the foregoing constitutes an Event of Default under the Loan
Agreement and/or the other Financing Agreements (the
“Specified Event of Default”);
WHEREAS, Borrower and Guarantors have requested that Lender (i)
waive the Specified Event of Default, and (ii) make certain
amendments to the Loan Agreement, and Lender is willing to agree to
such request, subject to the terms and conditions contained
herein;
WHEREAS, by this Eleventh Ratification Amendment, Lender, Borrower
and Guarantors desire and intend to evidence such amendments;
WHEREAS, this Eleventh Ratification Amendment has been filed with
the Bankruptcy Court and notice thereof has been served upon all
parties that have requested notice in the Borrower’s and
Guarantors’ bankruptcy cases pursuant to the Final Order (1) Authorizing Debtors’ Use of
Cash Collateral, (2) Authorizing Debtors to Obtain Post-Petition
Financing, (3) Granting Senior Liens and Priority Administrative
Expense Status Pursuant to 11 U.S.C. §§105 and 364(c),
(4) Modifying the Automatic Stay Pursuant to 11 U.S.C. §362,
and (5) Authorizing Debtors to Enter Into Agreements with Congress
Financial Corporation (as the
same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the
“Final DIP Financing Order”), which was approved by the
Bankruptcy Court on February 2, 2004 ;
WHEREAS, no objection has been filed by
any interested party to the terms and conditions of this Eleventh
Ratification Amendment and Borrower and Guarantors are authorized
to execute and deliver this Eleventh Ratification Amendment in
accordance with the terms of the Final DIP Financing Order;
and
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender, Borrower and Guarantors hereby
covenant, warrant and agree as follows:
1.1 Additional Definition
. “Eleventh Ratification Amendment” shall
mean this Eleventh Ratification Amendment, as the same now exists
or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
1.2 Amendments to Definitions in Financing
Agreements .
(a) A ll references to
the term “Financing Agreements” in this
Eleventh Ratification Amendment and in any of the Financing
Agreements shall be deemed and each such reference is hereby a
