AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is entered into as of May 10, 2004,
by and among XXXXX XXXXXX INTERNATIONAL, INC., a Florida corporation ("BJI"),
the other entities designated as a "Borrower" on the signature pages hereto
(together with BJI, each a "Borrower," and collectively, the "Borrowers"), the
financial institutions set forth on the signature pages hereto (each a "Lender"
and collectively, "Lenders") and GMAC COMMERCIAL FINANCE LLC, as agent for
Lenders (in such capacity, "Agent").
BACKGROUND
Borrowers, Guarantors, Agent and Lenders are parties to a Loan and Security
Agreement dated as of March 31, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement") pursuant to which
Agent and Lenders provide Borrowers with certain financial accommodations.
Borrowers have requested that Agent and Lenders make certain amendments to
the Loan Agreement, and Agent and Lenders are willing to do so on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrowers by Agent and
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 is amended as follows:
(i) The definition of "Other Documents" shall be amended by deleting such
definition in its entirety and by substituting therefore the following:
"Other Documents" shall mean, collectively, (x) the Notes, any Hedge
Agreement, any Guaranty and any and all other agreements, instruments and
written contractual obligations, including, without limitation, guaranties,
security agreements, pledges, powers of attorney, consents, and all other
writings heretofore, now or hereafter executed by any Loan Party and/or
delivered to Agent, any Lender or any Issuer in respect of the transactions
contemplated by this Agreement and (y) the agreements entered into from time to
time in the ordinary course of the Loan Parties' business (the "BofA Cash
Management Documents") between Loan Parties and Bank of America, N.A. ("BofA")
with respect to cash management services and controlled disbursement services
provided by BofA to Loan Parties.
(ii) The definition of "Settlement Date" shall be amended by deleting the
word "monthly" and by substituting therefore the word "weekly".
(b) Section 2.1(c) shall be amended by deleting the words "at least once
every month" and by substituting therefore the words "at least once every week".
(c) Section 9.8 shall be amended by deleting the words "(but in any event
within forty-five (45) days after the end of each fiscal quarter," and by
substituting therefore the words "(but in any event within (x) sixty (60) days
after the end of the fiscal quarter ended March 31, 2004 and (y) forty-five (45)
days after the end of each succeeding fiscal quarter),".
(d) Section 11.2 shall be amended by deleting such Section in its entirety
and substituting therefor the following:
"Subject to the terms of the Intercreditor Agreements, the proceeds
realized from the sale of any Collateral shall be applied as follows: first, to
the reasonable costs, expenses and attorneys' fees and expenses incurred by
Agent for collection and for acquisition, completion, protection, removal,
storage, sale and delivery of the Collateral; second, to interest due upon any
of the Obligations (excluding Obligations arising under Hedge Agreements and/or
the BofA Cash Management Documents); third, to fees payable in connection with
this Agreement; fourth, to furnish to Agent cash collateral in an amount not
less than 105% of the aggregate undrawn amount of all Letters of Credit, such
cash collateral arrangements to be in form and substance satisfactory to Agent;
fifth, to the principal of the Obligations (excluding Obligations arising under
Hedge Agreements and/or the BofA Cash Management Documents); sixth, to all
remaining unpaid Obligations (excluding Obligations arising under Hedge
Agreements and/or the BofA Cash Management Documents); seventh, to Obligations
arising under Hedge Agreements and/or the BofA Cash Management Documents
(provided, however, that no more than $500,000 of proceeds of Collateral may be
applied to Obligations under the BofA Cash Management Documents), and eighth, to
the appropriate Loan Party (subject to the equal or prior claims of other
Persons under applicable law). If any deficiency shall arise, Loan Parties shall
remain liable to Agent and Lenders therefor. If it is determined by an authority
of competent jurisdiction that a disposition by Agent did not occur in a
commercially reasonably manner, Agent may obtain a deficiency judgment for the
difference between the amount of the Obligation and the amount that a
commercially reasonable sale would have yielded. Agent will not be considered to
have offered to retain the Collateral in satisfaction of the Obligations unless
Agent has entered into a written agreement with Loan Party to that effect."
3. Conditions of Effectiveness. This Amendment shall become effective upon
satisfaction of the following conditions precedent: Agent shall have received
(i) four (4) copies of this Amendment executed by each Loan Party, each Lender
and Agent, and (ii) all such other certificates, instruments, documents,
agreements and opinions of counsel as may be required by Agent or its counsel,
each of which shall be in form and substance satisfactory to Agent and its
counsel.
4. Representations and Warranties. Each Loan Party hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby, constitute
legal, valid and binding obligations of the Loan Parties and are enforceable
against the Loan Parties in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Loan Party hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or would
exist after giving effect to this Amendment.
(d) No Loan Party has any defense, counterclaim or offset with respect to
the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or Lenders, nor
constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. 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 purpose.
8. Counterparts; Facsimile. This Amendment may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed an original
and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first written above.
XXXXX XXXXXX INTERNATIONAL, INC.,
as Borrowing Agent and as a Borrower
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx,
Executive Vice President and
Chief Administrative Officer
BJ MEXICO IV, INC.
BJ MEXICO V, INC.
XXXXX XXXXXX COMPANY
CASUAL LIVING WORLDWIDE, INC.
CHARTER FURNITURE CORPORATION
LODGING BY LIBERTY, INC.
LOEWENSTEIN, INC.
POMPEII FURNITURE CO., INC.
SOUTHERN WOOD PRODUCTS, INC.
TEXACRAFT, INC.
TROPIC CRAFT, INC.
WABASH VALLEY MANUFACTURING, INC.
WINSTON FURNITURE COMPANY OF
ALABAMA, INC.
THE WOODSMITHS COMPANY,
as Borrowers
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx,
Executive Vice President and
Chief Administrative Officer
CONFIRMED AND ACKNOWLEDGED:
BJCLW HOLDINGS, INC.
BJI EMPLOYEES SERVICES, INC.
BJIP, INC.
WINSTON PROPERTIES, INC.,
as Guarantors
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx,
Executive Vice President and
Chief Administrative Officer
WLFI HOLDINGS, INC.,
as a Loan Party
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx,
Executive Vice President and
Chief Administrative Officer
GMAC COMMERCIAL FINANCE LLC,
as a Lender, as Swingline Lender and as Agent
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx,
Director
XXXXXXX XXXXX CAPITAL, a
division of Xxxxxxx Xxxxx
Business Financial
Services, Inc.,
as a Lender
By: /s/ Xxxxxxx Xxxxx Capital
Name:
Title:
