AMENDMENT NO. 1 TO CREDIT AGREEMENT AND SECURITY AGREEMENT
Exhibit
10.2
AMENDMENT NO. 1
TO
THIS AMENDMENT NO. 1 TO CREDIT
AGREEMENT AND SECURITY AGREEMENT (this “Amendment”) is entered into as of
March 17, 2008 by and among FURNITURE BRANDS INTERNATIONAL,
INC., a Delaware corporation (“Furniture Brands”), BROYHILL FURNITURE INDUSTRIES,
INC., a North Carolina corporation (“Broyhill”), HDM FURNITURE INDUSTRIES,
INC., a Delaware corporation (“HDM”), LANE FURNITURE INDUSTRIES,
INC., a Mississippi corporation (“Lane”), THOMASVILLE FURNITURE INDUSTRIES,
INC., a Delaware corporation (“Thomasville”, and, together with Furniture
Brands, HDM, Broyhill and Lane, each a “Borrower,” and, collectively, the
“Borrowers”), the other Loan Parties and the financial institutions signatory
hereto, and JPMORGAN CHASE
BANK, N.A., as Administrative Agent (the “Administrative
Agent”).
RECITALS
A. The
Borrowers, the other Loan Parties, the Lenders and the Administrative Agent are
party to that certain Credit Agreement dated as of August 9, 2007 (the “Credit
Agreement”). Unless otherwise specified herein, capitalized terms
used in this Amendment shall have the meanings ascribed to them by the Credit
Agreement.
B. The
Borrowers, the other Loan Parties and the Administrative Agent are party to that
certain Security Agreement dated as of August 9, 2007 (the “Security
Agreement”).
C. The
Borrowers, the other Loan Parties, the Lenders, and the Administrative Agent
wish to amend the Credit Agreement and the Security Agreement on the terms and
conditions set forth below.
Now, therefore, in
consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1. Amendment to Credit
Agreement. The Credit Agreement is hereby amended
as follows:
(a) Section
3.15 of the Credit Agreement is hereby amended by inserting the phrase “As of
the Effective Date,” at the beginning of the first sentence
thereof.
(b) Section
9.01(a)(ii) of the Credit Agreement hereby deleted and replaced with the
following:
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(ii)
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if to the
Administrative Agent, the Issuing Bank, the Swingline Lender, or to Chase
at:
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JPMorgan Chase
Bank, N.A.
c/o Chase Business
Credit
00 X. Xxxxxxxx,
Xxxxx 00
Xxxxxxx, XX
00000
Attention: Xxxxx X.
Xxxxxxx
Facsimile No: (000)
000-0000
(c)
Section 10.03 of the Credit Agreement is hereby amended by adding a new
subsection 10.03(d) as follows:
(d) In
connection with any asset sale, transfer or other disposition permitted by this
Agreement that results in the sale, transfer or other disposition of all of the
Equity Interests issued by any Loan Guarantor, the Administrative Agent is
authorized to release such Loan Guarantor from its obligations under the Loan
Guaranty and the other Loan Documents upon consummation of such sale or
disposition if the Company certifies to the Administrative Agent that the
applicable sale or disposition is made in compliance with the terms of this
Agreement (and the Administrative Agent may rely conclusively on any such
certificate, without further inquiry).
2. Amendment to Security
Agreement. Section 4.10(e) of the Security Agreement is hereby
amended by inserting the parenthetical “(or such lesser time as the
Administrative Agent shall otherwise agree)” between the words “days” and
“prior” in the first sentence thereof.
3. Representations and
Warranties of the Loan Parties. Each of the Loan Parties
represents and warrants that:
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(a) The
execution, delivery and performance by the Loan Parties of this Amendment have
been duly authorized by all necessary corporate action and that this Amendment
is a legal, valid and binding obligation of the Loan Parties enforceable against
the Loan Parties in accordance with its terms, except as the enforcement thereof
may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors’ rights
generally;
(b) Each
of the representations and warranties contained in the Credit Agreement
(treating this Amendment and the Credit Agreement as amended hereby as “Loan
Documents” for purposes thereof) is true and correct in all material respects on
and as of the date hereof as if made on the date hereof (except that any
representation or warranty that relates to a specific date shall be true and
correct in all material respects as of such date); and
(c) After
giving effect to this Amendment, no Default or Event of Default has occurred and
is continuing.
4. Effective
Date. This Amendment shall become effective as of the date
first set forth above upon the execution and delivery hereof by the Loan
Parties, the Required Lenders, and the Administrative Agent (without respect to
whether it has been executed and delivered by all the Lenders).
5. Reaffirmation. Each
of the undersigned Loan Guarantors hereby unconditionally consents to the terms
of this Amendment and fully ratifies and affirms its respective obligations
under Article X of the Credit Agreement, taking into account this
Amendment.
6. Reference to and Effect Upon
the Credit Agreement and the Security Agreement
(a) Except
as specifically amended above, the Credit Agreement, the Security Agreement and
the other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(b) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or any Lender
under the Credit Agreement, the Security Agreement or any other Loan Document,
nor constitute a waiver of any provision of the Credit Agreement, the Security
Agreement or any other Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement or the Security Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of similar import shall mean and be a reference to
the Credit Agreement or the Security Agreement, as applicable, as amended
hereby.
7. Costs and
Expenses. The Borrowers hereby affirm their obligations under
Section 9.03 of the Credit Agreement to reimburse the Administrative Agent for
all reasonable out-of-pocket costs and expenses incurred by the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment, including but not limited to the reasonable fees, charges and
disbursements of attorneys for the Administrative Agent with respect
thereto.
8. Governing
Law. This Amendment shall be construed in accordance with and
governed by the law of the State of Illinois.
9. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purposes.
10. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when so
executed shall be deemed an original but all such counterparts shall constitute
one and the same instrument.
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
LOAN
PARTIES:
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FURNITURE
BRANDS INTERNATIONAL, INC.
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BROYHILL
FURNITURE INDUSTRIES, INC.
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LANE
FURNITURE INDUSTRIES, INC.
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THOMASVILLE
FURNITURE INDUSTRIES, INC.
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ACTION
TRANSPORT, INC.
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BROYHILL
TRANSPORT, INC.
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BROYHILL
RETAIL, INC.
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BROYHILL HOME
FURNISHINGS, INC.
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THOMASVILLE
RETAIL, INC.
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HDM RETAIL,
INC.
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FAYETTE
ENTERPRISES, INC.
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HDM FURNITURE
INDUSTRIES, INC.
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HDM
TRANSPORT, INC.
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LANEVENTURE,
INC.
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XXXXXXXX-XXXXX
FURNITURE INDUSTRIES, INC.
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XXXXXXXX-XXXXX
HOME FURNISHINGS, INC.
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THE LANE
COMPANY, INCORPORATED
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LANE HOME
FURNISHINGS RETAIL, INC.
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HICKORY
BUSINESS FURNITURE, INC.
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THOMASVILLE
HOME FURNISHINGS, INC.
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| FURNITURE BRANDS RETAIL OPERATIONS, INC. |
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By /s/ Xxx
Xxxxxxxx
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Name: Xxx
Xxxxxxxx
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Title: Senior
Vice President of Furniture Brands and Vice President of each other Loan
Party on behalf of each of the above Loan
Parties
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JPMORGAN CHASE
BANK, N.A., individually and as Administrative Agent
By /s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
VP
BANK OF AMERICA,
N.A.
By /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Senior
Vice President
NATIONAL CITY
BUSINESS CREDIT, INC.
By /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
WACHOVIA CAPITAL
FINANCE CORPORATION (CENTRAL)
By /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title:
VP
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XXXXX FARGO
FOOTHILL, LLC
By /s/ Xxxxxxxx
Xxxx
Name:
Xxxxxxxx Xxxx
Title:
AVP
GENERAL ELECTRIC
CAPITAL CORPORATION
By /s/ Xxxxxx X.
Xxxx
Name: Xxxxxx
X. Xxxx
Title: Duly
Authorized Signatory
RBS BUSINESS
CAPITAL, A DIVISION OF RBS ASSET FINANCE, INC.
By /s/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Senior
Vice President
THE CIT GROUP/
COMMERCIAL SERVICES, INC.
By /s/ Xxx
Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title:
V.P.
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PNC BANK, NATIONAL
ASSOCIATION
By _____________________________
Name:
Title:
CAPITAL ONE
LEVERAGE FINANCE CORP. f/k/a
NORTH FORK BUSINESS
CAPITAL CORPORATION
By /s/ Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title: Vice
President
FIFTH THIRD BANK, A
MICHIGAN BANKING CORPORATION
By /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Vice
President
UPS CAPITAL
CORPORATION
By /s/ Xxxx X.
Xxxxxxxx
Name: Xxxx X.
Xxxxxxxx
Title:
Director of Portfolio Management
