EXHIBIT NUMBER 10.48
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
ACCOUNT PURCHASE AND CREDIT CARD PROGRAM AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED ACCOUNT PURCHASE AND
CREDIT CARD PROGRAM AGREEMENT (this "Amendment") dated as of October 7, 1997 is
entered into by and among XXXXXX FURNITURE CORPORATION ("Parent"), a Florida
corporation with its principal place of business and chief executive offices
located at 0000 Xxxxxx Xxxxx Xxxxxxx XX, Xxxx Xxxxx, Xxxxxxx 00000, its
subsidiary operating corporations (collectively, "Operating Subsidiaries"),
XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a Colorado corporation, XXXXXX
FURNITURE COMPANY OF THE PACIFIC, INC., a California corporation, XXXXXX
FURNITURE COMPANY OF WASHINGTON, INC., a Washington corporation, XXXXXX SHOPPING
SERVICE, INC., a Florida corporation, and XXXX X. XXXXX COMPANY, an Illinois
corporation, all with their principal places of business and chief executive
offices located at 0000 Xxxxxx Xxxxx Xxxxxxx XX, Xxxx Xxxxx, Xxxxxxx 00000, and
GENERAL ELECTRIC CAPITAL CORPORATION ("GE Capital"), a New York corporation
having its administrative office located at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, with reference to the following facts:
WITNESSETH:
WHEREAS, GE Capital, Parent and Operating Subsidiaries entered into
that certain Second Amended and Restated Account Purchase and Credit Card
Program Agreement dated as of September 5, 1997 by and among Parent, Operating
Subsidiaries and GE Capital (the "Agreement"). Unless otherwise defined in this
Amendment, (i) capitalized terms used herein shall have the meanings attributed
to them in the Agreement, and (ii) references to sections shall refer to
sections of the Agreement.
WHEREAS, on September 5, 1997, Parent and Operating Subsidiaries
commenced the Chapter 11 Cases.
WHEREAS, Parent and Operating Subsidiaries continue to operate their
business and manage their properties as debtors and debtors in possession
pursuant to Section 1107(a) and 1108 of the Bankruptcy Code.
WHEREAS, Parent and Operating Subsidiaries have requested certain
amendments be made to the Agreement, and GE Capital has agreed to such
amendments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the continued performance by Parent
and Operating Subsidiaries of their promises and obligations under the Agreement
and the other documents related thereto, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Parent, Operating Subsidiaries and GE Capital hereby agree as follows:
AGREEMENT
1. AMENDMENT TO AGREEMENT. The Agreement shall be amended as
follows:
1.1 Section 5.12 is hereby amended by deleting the word "four"
and substituting the word "five" therefor.
1.2 Section 8(j) is hereby amended by deleting the following
phrase:
", and copies of all documents and other information
distributed by or on behalf of the Debtors to an official
committee of creditors or any other official committee
appointed in the Chapter 11 Cases (except to the extent such
information is subject to a
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confidentiality agreement between the Debtors and such
committee)."
1.3 Section 12.3 is hereby amended by adding the following phrase at
the end thereof: "; provided, that no such termination fee shall be payable if
Parent and Operating Subsidiaries enter into a private label credit card program
or other replacement or modification of the facility established under this
Agreement with the Monogram Credit Card Bank of Georgia."
1.4 Section 13.2 is hereby amended by deleting the word "four" and
substituting the word "five" therefor.
2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
upon execution thereof by the parties hereto and entry of the Approval Order
modified as set forth in Exhibit A hereto; provided that the amendment to
Section 8(j) shall be deemed to have taken effect as of September 5, 1997.
3. REFERENCE TO AGREEMENT. Upon the effectiveness of this Amendment, on
and after the date hereof each reference in the Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import shall mean and be a
reference to the Agreement as amended hereby.
4. ENTIRE AGREEMENT. This Amendment, together with the Agreement, is
the entire agreement between the parties hereto with respect to the subject
matter hereof. This Amendment supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
Except as otherwise expressly modified herein, the Agreement shall remain in
full force and effect.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants that the representations and warranties contained in the Agreement were
true and correct in all material respects when made and, except to the extent
that a particular representation or warranty by its terms expressly applies only
to an earlier date, or (b) Parent or any Operating Subsidiary has previously
otherwise advised GE Capital in writing as contemplated under the Agreement, are
true and correct in all material respects as of the date hereof. The Agreement
shall continue in full force and effect in accordance with the provisions
thereof on the date hereof. Parent and Operating Subsidiaries hereby confirm
that the disposition of merchandise by a liquidator does not constitute sales in
the ordinary course of business.
6. MISCELLANEOUS.
6.1 COUNTERPARTS. This Amendment may be executed in identical
counterpart copies, each of which shall be an original, but all of which shall
constitute one and the same agreement.
6.2 AUTHORITY. Each Person executing this Amendment represents
and warrants that he or she is lawfully authorized and empowered to execute this
Amendment on behalf of the entity on whose behalf such Person is signing, and
that upon execution, this Amendment will be binding upon such entity, without
any further approval, ratification or other action.
6.3 HEADINGS. Section headings used herein are for convenience
of reference only, are not part of this Amendment, and are not to be taken into
consideration in interpreting this Amendment.
6.4 GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
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6.5 NO WAIVER. Except as specifically set forth in paragraphs
1 and 2 of this Amendment, the execution, delivery and effectiveness of this
Amendment shall not (a) limit, constitute a waiver of or otherwise affect any
right, power or remedy by GE Capital under the Agreement, (b) constitute a
waiver of any provision in the Agreement, or (c) alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
6.6 CONFLICT OF TERMS. In the event of any inconsistency
between the provisions of this Amendment and any provision of the Agreement, the
terms and provisions of this Amendment shall govern and control.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ XXXXX X. UYAI
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Name: XXXXX X. UYAI
Title: DULY AUTHORIZED SIGNATORY
XXXXXX FURNITURE CORPORATION
By: /S/ XXXXXXX X. XXXXX
----------------------------------------
Name: XXXXXXX X. XXXXX
Title:______________________________________
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC.
By: /S/ XXXXXXX X. XXXXX
----------------------------------------
Name: XXXXXXX X. XXXXX
Title:______________________________________
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC.
By: /S/ XXXXXXX X. XXXXX
----------------------------------------
Name: XXXXXXX X. XXXXX
Title:______________________________________
XXXXXX FURNITURE COMPANY OF WASHINGTON, INC.
By: /S/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
Title:______________________________________
XXXX X. XXXXX COMPANY
By: /S/ XXXXXXX X. XXXXX
----------------------------------------
Name: XXXXXXX X. XXXXX
Title:______________________________________
XXXXXX SHOPPING SERVICE, INC.
By: /S/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
Title:______________________________________
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