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[EXECUTION COPY]
AMENDMENT NO. 8
to
LOAN AND SECURITY AGREEMENT
dated as of July 12, 1996
THIS AMENDMENT NO. 8 dated as of February 18, 1999 (this
"Amendment") is made by XXXX FURNITURE, INC., a North Carolina corporation,
AMERICAN FURNITURE COMPANY, INCORPORATED, a Virginia corporation,
XXXXXXX-XXXXXX COMPANY, INC., a North Carolina corporation (and the successor
by merger to Xxxxxxx Furniture Co.), XXXX CONTRACT SALES CORPORATION, a North
Carolina corporation, XXXX INTERNATIONAL SALES CORPORATION, a Barbados
corporation, XXXX TRANSPORTATION, INC., a North Carolina corporation,
PENNSYLVANIA HOUSE, INC., a North Carolina corporation, XXXXXXX FURNITURE,
INC., a North Carolina corporation (the "Borrowers"), NATIONSBANK, N.A., a
national banking association ("NationsBank"), FLEET CAPITAL CORPORATION, a
Rhode Island corporation ("Fleet", and together with NationsBank, the
"Co-Agents"), the financial institutions parties to the Loan Agreement (as
hereinafter defined) from time to time (the "Lenders"), and NationsBank as
administrative agent for the Lenders (the "Administrative Agent").
Preliminary Statements
The Borrowers, the Lenders, the Co-Agents and the
Administrative Agent are parties to a Loan and Security Agreement dated as of
July 12, 1996, as amended by Amendment No. 1 dated as of August 15, 1996,
Amendment No. 2 dated as of October 10, 1996, Amendment No. 3 dated as of
December 23, 1996, Amendment No. 4 dated as of July 24, 1997, Amendment No. 5
dated as of October 1, 1997, Amendment No. 6 dated as of May 15, 1998 and
Amendment No. 7 dated as of August 28, 1998, as supplemented (said Agreement,
as so amended, the "Loan Agreement"; terms defined therein and not otherwise
defined herein being used herein as therein defined).
The Borrowers have requested, and the Lenders and the Administrative
Agent have agreed, upon and subject to all of the terms, conditions and
provisions of this Amendment, to consent to amend the interest rates applicable
to the Loans.
Accordingly, in consideration of the Loan Agreement, the Loans made by
the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Loan Agreement. The Loan Agreement is hereby
amended, subject to the provisions of Section 3 hereof, by
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(a) amending the definition "Termination Date" by deleting the
date "July 12, 2000" appearing therein and substituting therefor the date "July
12, 2001";
(b) amending Section 5.10 Prepayment Fee in its entirety to read
as follows:
Section 5.10. Prepayment Fee. If the Borrowers prepay the
Loans in whole and terminate this Agreement prior to the Termination
Date, the Borrowers shall pay to the Administrative Agent for the
Ratable benefit of the Lenders on such date of termination, as
liquidated damages and compensation for the costs of making funds
available to the Borrowers under this Agreement, and not as a penalty,
an amount equal to (i) 1/8 of 1% if such termination occurs prior to
July 12, 2000 or (ii) 1/16 of 1% if such termination occurs on or
after July 12, 2000 and prior to July 12, 2001, in each case
multiplied by the average total principal amount of Loans outstanding
during the 12 consecutive Fiscal Months next preceding the date of
such early termination.
(c) amending Section 12.10 Operating Leases by deleting the
figure "$14,000,000" appearing therein and substituting therefor the figure
"$18,000,000"; and
(d) deleting therefrom Annex B and substituting therefor, Annex B
in the form of Annex 1 attached hereto, to be effective with respect to
adjustments to the Applicable Margins and commitment fee made with reference to
financial statements and certificates delivered pursuant to Section 11.3 of the
Loan Agreement as of December 31, 1998 and thereafter.
Section 2. Waiver. Subject to the provisions of Section 3, the
Lenders hereby waive compliance and the effect of non-compliance by the
Borrowers with the provisions of Section 5.9(i) [sic] of the Loan Agreement
with respect to any payment that might otherwise be due in 1999 in respect of
Fiscal Year 1998 Excess Cash Flow.
Section 3. Effectiveness of Amendment. Sections 1 and 2 of this
Amendment shall become effective as of February 1, 1999 on the date on or
before February 28, 1999 on which the Administrative Agent shall have received
the following, each in form and substance satisfactory to the Administrative
Agent and in sufficient copies for each Lender:
(a) a copy of this Amendment signed by each Borrower and each
Lender;
(b) a certificate of the Secretary of each Borrower having
attached thereto the articles or certificate of incorporation and bylaws of
such Borrower as in effect on the Amendment Effective Date (or containing the
certification of such Secretary that no amendment or modification of such
articles or certificate or bylaws has become effective since the last date on
which such documents were delivered to the Administrative Agent pursuant to the
Loan Agreement), and to the further effect that the incumbency certificate and
corporate action delivered in connection with the occurrence of the Effective
Date remain in effect, unchanged, or certifying any changes thereto;
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(c) a certificate of the President or Executive Vice President of
XXXX and of the President or a Vice President of each other Borrower stating
that, to the best of his knowledge and based on an examination sufficient to
enable him to make an informed statement, after giving effect to this
Amendment,
(i) all of the representations and warranties made or
deemed to be made under the Loan Agreement are true and correct in all
material respects as of the Amendment Effective Date, having attached
thereto any revised Schedules necessary to permit such certification,
including but not limited to Schedules 1.1A and 7.1(a), (b), (c), (e),
(f), (g), (h), (i), (k), (p), (t), (u), (v), (w), and (bb), and
(ii) no Default or Event of Default exists,
and such statements shall be true;
(d) a signed legal opinion letter of Xxxxxxxxxx Xxxxxxxx LLP as
to such matters in connection with this Amendment as any Lender may reasonably
request; and
(e) such other documents, agreements, certificates or other
instruments in connection with this Amendment as the Administrative Agent may
reasonably request.
Section 4. Effect of Amendment. From and after the
effectiveness of this Amendment, all references in the Loan Agreement and in
any other Loan Document to "this Agreement," "the Loan Agreement," "hereunder,"
"hereof" and words of like import referring to the Loan Agreement, shall mean
and be references to the Loan Agreement as amended by this Amendment. Except as
expressly amended hereby, the Loan Agreement and all terms, conditions and
provisions thereof remain in full force and effect and are hereby ratified and
confirmed. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
Section 5. Representations, Warranties and Covenants.
(a) Representations and Warranties. The Borrowers each hereby
represent and warrant to the Lenders that each of the representations and
warranties set forth in the Loan Documents is true and correct in all material
respects as of the date hereof both before and after giving effect to this
Amendment, and shall survive the delivery of this Amendment.
Section 6. Counterpart Execution; Governing Law.
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(a) Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same agreement.
(b) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWERS:
XXXX FURNITURE, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Executive Vice President
AMERICAN FURNITURE COMPANY,
INCORPORATED
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
XXXXXXX-XXXXXX COMPANY, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
XXXX CONTRACT SALES CORPORATION
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
PENNSYLVANIA HOUSE, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
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XXXXXXX FURNITURE, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
XXXX TRANSPORTATION, INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
President
XXXX INTERNATIONAL SALES
CORPORATION
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
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AGENTS/LENDERS:
NATIONSBANK, N.A., as Administrative Agent,
a Co-Agent and as a Lender
By:
----------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
Vice President
FLEET CAPITAL CORPORATION, as a Co-
Agent and as a Lender
By:
----------------------------------------
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT,
INC., as a Lender
By:
----------------------------------------
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By:
----------------------------------------
Name:
Title:
BANKBOSTON, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., as a Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
BRANCH BANKING AND TRUST COMPANY,
as a Lender
By:
----------------------------------------
Name:
Title:
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XXXX FURNITURE, INC.
APPLICABLE MARGINS
ANNEX 1
to Amendment No. 8
ANNEX B
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Eurodollar Rate Prime Rate
Total Debt Revolving Credit Eurodollar Rate Revolving Credit Prime Rate Term Commitment Fee
Coverage Rate Loans Term Loans Loans Loans
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>5 250 250 150 150 .50
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>4.25<5 225 225 125 125 .50
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>3.5<4.25 175 175 75 75 .375
-
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>3.25<3.5 150 150 50 50 .375
-
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>3<3.25 125 125 25 25 .25
-
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>2.5<3.0 100 100 0 0 .25
-
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<2.5 87.5 87.5 <25> <25> .125
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