THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT
AGREEMENT
THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of
February 19, 2009, is by and among HOOKER
FURNITURE COMPANY (the “Borrower”), THE
PERSONS IDENTIFIED AS LENDERS ON THE SIGNATURE PAGE HERETO (whether one
or more, the “Lenders”) and BANK OF
AMERICA, N.A., as agent for the Lenders (the “Agent”).
WHEREAS,
the Borrower, the Lenders and the Agent are parties to a Credit Agreement dated
as of April 30, 2003, as amended by a First Amendment to Credit Agreement dated
as of February 18, 2005, and a Second Amendment to Credit Agreement dated as of
February 27, 2008 (such credit agreement and amendments, the “Existing Credit
Agreement”); and
WHEREAS,
the Borrower has requested that the Lenders make certain amendments to the
Existing Credit Agreement; and
WHEREAS,
the Lenders are willing to do so, as more fully set forth below, but only on the
terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree as follows:
1. Definitions. “Amended
Credit Agreement” means the Existing Credit Agreement as amended by this
Amendment. Capitalized terms used in this Amendment and not otherwise
defined shall have the meanings ascribed to them in the Existing Credit
Agreement.
2.
Amendment
of Certain Definitions.
(a)
Effective
as of January 1, 2009, the definition of “Applicable Rate” in Section
1.1 of
the Existing Credit Agreement is amended by deleting the first sentence thereof
and replacing it with the following:
“Applicable Rate”
means, from time to time, the following percentages per annum, based upon the
Funded Debt to EBITDA ratio (the “Financial Covenant”) as set forth in the most
recent Compliance Certificate received by Agent pursuant to Section 6.02(b):
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Pricing
Level
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Funded
Debt to
EBITDA
Ratio
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Commitment
Fee
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LIBOR
Loans
and
Letters of
Credit
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1
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<
0.75:1
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0.200%
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1.25%
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2
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>0.75:1
but < 1.25:1
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0.250%
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1.50%
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3
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>1.25:1
but < 1.50:1
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0.250%
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1.75%
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4
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>1.50:1
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0.375%
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2.00%
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(b) Effective
as of January 1, 2009, the definition of “Cash Flow” in Section 1.1 of
the Existing Credit Agreement is amended to read in its entirety as follows:
“Cash Flow” means, for
any period (a) net income, after income taxes, (b) less income or plus loss from
discontinued operations and extraordinary items, (c) plus depreciation,
depletion, amortization and other non-cash charges, (d) plus interest expense
on all obligations, and (e) minus dividends,
withdrawals, and other distributions, in each case for such period.
1 References
in Other Credit Documents. All references in the Existing
Credit Agreement to the "Credit Agreement" and all references in the other Loan
Documents to the "Credit Agreement" shall be deemed to refer to the Amended
Credit Agreement.
2 Representations
and Warranties. The Borrower hereby represents and warrants
that (a) the representations and warranties contained in Article V of the
Existing Credit Agreement (as amended by this Amendment) are correct in all
material respects on and as of the date hereof as though made on and as of such
date and after giving effect to the amendments contained herein, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct in all material respects as
of such earlier date, and except that for purposes of this Section, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 of the Existing Credit Agreement shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01, and (b) no Default or Event of Default exists under the Existing
Credit Agreement on and as of the date hereof and after giving effect to the
amendments contained herein.
3 Ratification
and Reaffirmation. Each Loan Party hereby ratifies the Loan
Documents to which it is a party and acknowledges and reaffirms (a) that it is
bound by all terms of such Loan Documents (as amended hereby) applicable to it
and (b) that it is responsible for the observance and full performance of its
respective Obligations under such Loan Documents.
4 Instrument
Pursuant to Existing Credit Agreement. This Amendment is a
Loan Document executed pursuant to the Existing Credit Agreement and shall
(unless otherwise expressly indicated therein) be construed, administered and
applied in accordance with the terms and provisions of the Amended Credit
Agreement.
5 No
Other Changes. Except as expressly modified and amended by
this Amendment, the Existing Credit Agreement and all other Loan Documents shall
continue in full force and effect and all the terms, provisions and conditions
of the Loan Documents shall remain unchanged.
6 Severability. Any
provision of this Amendment held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
7 Counterparts. This
Amendment may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery of executed
counterparts of this Amendment by telecopy shall be effective as an original and
shall constitute a representation that an original shall be
delivered.
8 Governing
Law. This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the Commonwealth of Virginia,
without giving effect to the conflict of law principles thereof.
9 Successors
and Assigns. This
Amendment shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
10 Fees
and Expenses. The
Borrower shall pay to the Lenders and Agent upon demand the full amount of all
costs and expenses, including reasonable attorneys’ fees, incurred by the
Lenders and Agent in the negotiation and preparation of this Amendment.
IN
WITNESS WHEREOF, the Borrower, Agent and the Lenders have caused this
Amendment to be executed under seal by their duly authorized officers as of the
date first above written.
[Remainder
of Page Intentionally Left Blank – Signature Page Follows]
SIGNATURE PAGE TO THIRD
AMENDMENT TO CREDIT AGREEMENT
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Borrower:
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HOOKER
FURNITURE CORPORATION
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By:
/s/Xxxx X. Xxxx,
Xx
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Name: Xxxx
X. Xxxx, Xx.
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Title: Chairman,
President and Chief Executive Officer
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By:
/s/ Xxxxx X.
Xxxxx
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Name: Xxxxx
X. Xxxxx
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Title: EVP-
Finance and Administration
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Agent:
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BANK
OF AMERICA, N.A.
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By:
/s/ Xxxx X.
Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title: Senior
Vice President
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Lenders:
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BANK
OF AMERICA, N.A.
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By:
/S/ Xxxx X.
Xxxxxxxx
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Name: Xxxx
X. Xxxxxxxx
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Title:
Senior Vice
President
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