Execution Copy
AMENDMENT AND CONSENT NO. 2
This AMENDMENT AND CONSENT NO. 2 dated as of May 5, 2004 ("Amendment"), is entered into by and among
X'XXXXXXXX INDUSTRIES, INC., a Delaware corporation ("OSI"), X'XXXXXXXX FURNITURE FACTORY OUTLET, INC., a
Missouri corporation ("OSF"), X'XXXXXXXX INSUSTRIES - VIRGINIA, INC., a Virginia corporation ("OSV" and together
with OSF and OSV, each a "Borrower" and collectively and jointly and severally, the "Borrowers"), X'XXXXXXXX
INDUSTRIES HOLDINGS, INC., a Delaware corporation ("Holdings"), the persons designated as "Lenders" on the
signature pages hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent.
WHEREAS, Borrowers, Holdings, the Lenders (as defined therein) and Agent are party to the Credit
Agreement dated as of September 29, 2003, as amended by Amendment No. 1 thereto, dated as of October 29, 2003
(including all annexes, exhibits and schedules thereto, the "Credit Agreement"; all capitalized terms defined in
the Credit Agreement and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
or in Annex A thereto);
WHEREAS, Borrowers and Requisite Lenders, subject to Section 4 hereof, wish to amend the Credit
Agreement in the manner set forth below;
WHEREAS, Holdings desires to amend its articles of certificate of incorporation to create a new series
of preferred Stock and to increase the amount of shares Holdings is authorized to issue;
WHEREAS, Section 3.6 of the Credit Agreement prohibits any amendment, modification or waiver of any term
or provision of Holdings certificate of incorporation;
WHEREAS, Borrowers and Holdings have requested that Requisite Lenders, and Requisite Lenders have agreed
to, consent to the amendment of Holdings' certificate of incorporation to create a new series of preferred Stock
and to increase the amount of shares Holdings is authorized to issue, waive Section 3.6 of the Credit Agreement
to permit such amendment and waive any Default or Event of Default arising as a result;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein
contained, Borrowers, Credit Parties, Requisite Lenders and Agent agree as follows:
Section 1.
AMENDMENT
Subject to the satisfaction of the conditions to effectiveness referred to in Section 3 hereof, the
Credit Agreement is hereby amended by amending the definition of "Change of Control" contained in Annex A of the
Credit Agreement by amending and restating clause (a) of such definition as follows: "(a) prior to any initial
public offering (after the Closing Date) of common stock of Holdings, BRS together with any BRS Related Party
ceases to own and control all of the voting rights associated with ownership of at least fifty-one percent (51%)
of each class of the outstanding voting Stock of Holdings on a fully diluted basis."
Section 2.
CONSENT
Effective as of the Effective Date, the Requite Lenders hereby consent to the amendment by Holdings' of
its certificate of incorporation in the form attached hereto as Exhibit 1 to create a new series of preferred
Stock and to increase the amount of shares Holdings is authorized to issue thereunder and waive any Default or
Event of Default otherwise arising under Section 3.6 of the Credit Agreement by virtue of such amendment.
Section 3.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the date (the "Effective Date") the following conditions shall
have been satisfied:
(a) Agent shall have received one or more counterparts of this Amendment executed and delivered by
Borrowers, Holdings, Agent and the Requisite Lenders;
(b) Agent shall have received a copy of Holdings' certificate of incorporation, and all amendments thereto,
in form and substance satisfactory to Agent, dated a recent date prior to the Effective Date
and certified by the Secretary of State of the State of Delaware; and
(c) there shall be no continuing Default or Event of Default (after giving effect to the amendment
contemplated by this Amendment) and the representations and warranties of the Borrowers
contained in this Amendment shall be true and correct in all material respects.
Section 4.
LIMITATION ON SCOPE
Except as expressly amended hereby, all of the representations, warranties, terms, covenants and
conditions of the Loan Documents shall remain in full force and effect in accordance with their respective
terms. The amendment and consent set forth herein shall be limited precisely as provided for herein and shall
not be deemed to be a waiver of, amendment of, consent to or modification of any term or provision of the Loan
Documents or any other document or instrument referred to therein or of any transaction or further or future
action on the part of Borrowers or any other Credit Party requiring the consent of Agent or Lenders except to the
extent specifically provided for herein. Agent and Lenders have not and shall not be deemed to have waived any
of their respective rights and remedies against Borrowers or any other Credit Party for any existing or future
Defaults or Event of Default (other than those referred to in Section 2).
Section 5.
MISCELLANEOUS
(d) Borrowers hereby represent and warrant as follows:
(i) this Amendment has been duly authorized and executed by Borrowers and each other Credit Party, and the
Credit Agreement, as amended by this Amendment, is the legal, valid and binding obligation of Borrowers and each
other Credit Party that is a party thereto, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, moratorium and similar laws affecting the rights of
creditors in general; and
(ii) Borrowers repeat and restate the representations and warranties of Borrowers contained in the Credit
Agreement as of the date of this Amendment and as of the Effective Date, except to the extent such
representations and warranties relate to a specific date.
(e) This Amendment is being delivered in the State of New York.
(f) Borrowers and the other Credit Parties hereby ratify and confirm the Credit Agreement as amended hereby,
and agree that, as amended hereby, the Credit Agreement remains in full force and effect.
(g) Borrowers and the other Credit Parties agree that all Loan Documents to which each such Person is a
party remain in full force and effect notwithstanding the execution and delivery of this
Amendment.
(h) This Amendment may be executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which counterparts together
shall constitute but one and the same instrument.
(i) All references in the Loan Documents to the "Credit Agreement" and in the Credit Agreement as amended
hereby to "this Agreement," "hereof," "herein" or the like shall mean and refer to the Credit
Agreement as amended by this Amendment (as well as by all subsequent waivers, amendments,
restatements, modifications and supplements thereto).
(j) Each of the following provisions of the Credit Agreement is hereby incorporated herein by this reference
with the same effect as though set forth in its entirety herein, mutatis mutandis, and as if
"this Agreement" in any such provision read "this Amendment": Section 9.3 (Notices),
Section 9.6, (Severability), Section 9.8 (Headings), Section 9.9 (Applicable Law), Section 9.12
(Construction), Section 9.15 (Waiver of Jury Trial) and Section 9.17 (Entire Agreement).
[SIGNATURE PAGE FOLLOWS]
X'XXXXXXXX AMENDMENT NO. 2
WITNESS the due execution hereof by the respective duly authorized officers of the undersigned as of the date
first written above.
BORROWERS:
X'Xxxxxxxx Industries, Inc.,
as a Borrower
By: /s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Sr. Vice President of Operations and
Acting Chief Financial Officer
X'Xxxxxxxx Furniture Factory Outlet, Inc.,
as a Borrower
By: /s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Sr. Vice President of Operations and
Acting Chief Financial Officer
X'Xxxxxxxx Industries - Virginia, Inc.,
as a Borrower
By: /s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Sr. Vice President of Operations and
Acting Chief Financial Officer
CREDIT PARTIES:
X'Xxxxxxxx Industries Holdings, Inc.
By:/s/ Xxxxxx X. Xxxxxxx
Name:Xxxxxx X. Xxxxxxx
Title:Sr. Vice President of Operations and
Acting Chief Financial Officer
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent and a Lender
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Provensale
Title:Vice President Duly Authorized Signatory
