EXHIBIT 10.44
AMENDMENT NO. 5
TO
CREDIT AGREEMENTS
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENTS ("Amendment") is dated as of
July 25, 1997, by and among XXXXXX FURNITURE CORPORATION, a Florida corporation
("LFC"), XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a Colorado corporation
("LFC Midwest"), XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a California
corporation ("LFC Pacific"), XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation ("LFC Washington") and XXXX X. XXXXX COMPANY, an Illinois
corporation ("Xxxxx") (LFC, LFC Midwest, LFC Pacific, LFC Washington and Xxxxx
sometimes hereinafter referred to individually as a "Borrower" and collectively
as the "Borrowers"); LFC, acting in its capacity as borrowing agent for the
Borrowers (LFC, in such capacity, the "LFC Funds Administrator"); BT COMMERCIAL
CORPORATION, a Delaware corporation (in its individual capacity, hereinafter
referred to as "BTCC"), acting in its capacity as agent (in such capacity,
hereinafter referred to as the "Tranche A Agent") under the "Tranche A Credit
Agreement" (as hereinafter defined); BTCC, acting in its capacity as agent (in
such capacity, hereinafter referred to as the "Tranche B Agent") under the
"Tranche B Credit Agreement" (as hereinafter defined); and each of the Lenders
under and as defined in the Tranche A Credit Agreement (hereinafter referred to
as the "Tranche A Lenders") and the "Tranche B Lenders" (as defined in the
Tranche A Credit Agreement). Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings assigned to such terms in the
Tranche A Credit Agreement.
WITNESSETH:
WHEREAS, Borrowers, the Tranche A Agent and the Tranche A Lenders have
entered into that certain Credit Agreement dated as of July 1, 1996, as amended
(the "Tranche A Credit Agreement"), pursuant to which the Tranche A Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of Borrowers;
WHEREAS, Borrowers, the Tranche B Agent and the Tranche B Lenders have
entered into that certain Credit Agreement dated as of July 1, 1996, as amended
(the "Tranche B Credit Agreement"), pursuant to which the Tranche B Lenders have
agreed to make certain loans and other financial accommodations to or for the
account of Borrowers;
WHEREAS, the Tranche A Agent and the Tranche B Agent (sometimes
hereinafter referred to collectively as the "Agents") and the Tranche A Lenders
and the Tranche B Lenders (sometimes hereinafter referred to collectively as the
"Lenders") have agreed to amend certain provisions of the respective Credit
Agreements on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENTS. Effective as of the date hereof,
upon satisfaction of the conditions precedent set forth in Section 3 below, and
in reliance upon the representations and warranties of Borrowers set forth
herein, each of the Credit Agreements is hereby amended as follows:
1.1 The definition of the term "Borrowing Base" set forth in
Section 1.1 of each of the Credit Agreements is hereby amended by inserting the
following language therein immediately following the semi-colon appearing at the
end of clause (c) thereof:
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plus
(d) 9,000,000, during the period commencing on July 25,
1997 and ending on the earlier to occur of (x)
October 31, 1997 and (y) the date on which the Net
Cash Disposition Proceeds of the sale by Xxxxx of the
Unrestricted Real Property located at 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx are received by or for the
account of the LFC Funds Administrator or any
Borrower;
3. CONDITIONS PRECEDENT. This Amendment shall become effective as of
the date hereof, upon satisfaction of each of the following conditions:
(a) Agents shall have received a copy of this Amendment, duly
executed by the LFC Funds Administrator, each of the Borrowers and the
Majority Lenders; and
(b) receipt by the Agent in immediately available funds for
the ratable benefit of the Lenders of an amount equal to $250,000.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1 Each of the Borrowers hereby represents and warrants to
each of the Agents and Lenders that, after giving effect to this Amendment:
(a) All representations and warranties contained in each of
the Credit Agreements and the other Transaction Documents are true and
correct in all material respects on and as of the date of this
Amendment, in each case as if then made, other than representations and
warranties that expressly relate solely to an earlier date (in which
case such representations and warranties were true and accurate on and
as of such earlier date);
(b) No Default or Event of Default has occurred which has not
been waived (or, in the case of an Event of Default, cured) pursuant to
the respective terms of the Credit Agreements;
(c) this Amendment, and each of the Credit Agreements as
amended hereby, constitute legal, valid and binding obligations of the
LFC Funds Administrator and each of the Borrowers and are enforceable
against such Persons in accordance with their respective terms; and
(d) the execution and delivery by the LFC Funds Administrator
and each of the Borrowers of this Amendment does not require the
consent or approval of any Person, except such consents and approvals
as shall have been obtained.
a. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENTS AND THE OTHER
TRANSACTION DOCUMENTS.
4.1 Upon the effectiveness of this Amendment, each reference
in each of the Credit Agreements to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in each of the other
Transaction Documents to the "Credit Agreement" the "Tranche A Credit Agreement"
and/or the "Tranche B Credit Agreement" shall in each case mean and be a
reference to the respective Credit Agreements as amended hereby.
4.2 Except as expressly set forth herein, (i) the execution
and delivery of this Amendment shall in no way affect any of the respective
rights, powers or remedies of either of the Agents or any of the Lenders with
respect to any Default or Event of Default nor constitute a waiver of any
provision of either of the Credit Agreements or any of the other Transaction
Documents and (ii) all of the respective terms and conditions of the Credit
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Agreement, the other Transaction Documents and all other documents, instruments,
amendments and agreements executed and/or delivered by the Borrowers and/or the
LFC Funds Administrator pursuant thereto or in connection therewith shall remain
in full force and effect and are hereby ratified and confirmed in all respects.
The execution and delivery of this Amendment by the Agents and each of the
Lenders shall in no way obligate the Agents or any of the Lenders, at any time
hereafter, to consent to any other amendment or modification of any term or
provision of the Credit Agreements or any of the other Transaction Documents,
whether of a similar or different nature.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND
DECISIONS OF THE STATE OF NEW YORK.
6. 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.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date first set forth above.
LFC FUNDS ADMINISTRATOR:
XXXXXX FURNITURE CORPORATION, a Florida
corporation, in its capacity as LFC
Funds Administrator
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: XXXXXXX X. XXXXX
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Title: SENIOR VICE PRESIDENT
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BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida
corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
XXXXXX FURNITURE COMPANY OF THE MIDWEST,
INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
XXXXXX FURNITURE COMPANY OF THE PACIFIC,
INC., a California corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
XXXXXX FURNITURE COMPANY OF WASHINGTON,
INC., a Washington corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
XXXX X. XXXXX COMPANY, an Illinois
corporation
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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AGENTS:
BT COMMERCIAL CORPORATION, in its respective
capacities as Tranche A Agent and Tranche B
Agent
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Senior Vice President
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LENDERS:
BT COMMERCIAL CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Senior Vice President
SANWA BUSINESS CREDIT CORPORATION
By:
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Name:
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Title:
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LASALLE NATIONAL BANK
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION (CENTRAL)
By:
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Name:
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Title:
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XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXX
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Name: XXXXXX XXXXX
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Title: VICE PRESIDENT
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TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
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Name:
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Title:
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FINOVA CAPITAL CORPORATION
By: /s/ XXXXX XXXXXXXX
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Name: XXXXX XXXXXXXX
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Title: VICE PRESIDENT
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SILVER OAK CAPITAL L.L.C.
By: /s/ XXXX XXXXXX
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Name: XXXX XXXXXX
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Title: ATTORNEY IN FACT
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