Exhibit 10.5 FIRST AMENDMENT dated as of January 30, 1997 (this "Amendment"), to the Credit Agreement dated as of August 5, 1996, (the "Credit Agreement"), among LIFESTYLE FURNISHINGS INTERNATIONAL LTD., a Delaware corporation (the "Parent Borrower");...
Exhibit 10.5
FIRST AMENDMENT dated as of January 30, 1997 (this
"Amendment"), to the Credit Agreement dated as of August 5,
1996, (the "Credit Agreement"), among LIFESTYLE FURNISHINGS
INTERNATIONAL LTD., a Delaware corporation (the "Parent
Borrower"); the subsidiary borrowers named therein (the
"Subsidiary Borrowers" and, together with the Parent Borrower,
the "Borrowers"); FURNISHINGS INTERNATIONAL INC., a Delaware
corporation ("Holdings"); the Lenders (such term and each
other capitalized term used without definition in this
Amendment having the meaning assigned to such term in the
Credit Agreement); The Chase Manhattan Bank, a New York
banking corporation, as the Swingline Lender, as
Administrative Agent and as Collateral Agent for the Lenders;
and CHASE MANHATTAN BANK DELAWARE, as Issuing Bank.
WHEREAS the Borrowers have requested that the Lenders amend the Credit
Agreement and enter into the agreements as set forth below; and
WHEREAS Lenders constituting the Required Lenders are willing, on the
terms, subject to the conditions and to the extent set forth below, to effect
such amendment and enter into such agreements.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrowers, Holdings, Lenders
constituting the Required Lenders, the Administrative Agent and the Issuing Bank
hereby agree, on the terms and subject to the conditions set forth herein, as
follows:
SECTION 1. Amendment. (a) Section 6.05 of the Credit Agreement is hereby
amended by deleting clause (d) thereof and substituting therefor the following:
(d) (i) Holdings, any Borrower or any Subsidiary may sell accounts
receivable and related assets to the Receivables Subsidiary pursuant to
any Permitted Receivables Financing or (ii) to the extent not included in
clause (i), (A) Sunbury may sell accounts receivable pursuant to factoring
arrangements entered into in the ordinary course of business in an
aggregate amount not to exceed $20,000,000 at any time outstanding and (B)
The Berkline Corporation may sell accounts receivable owed to it by
Xxxxxxxxxx Xxxx & Co., Inc. and its subsidiaries pursuant to factoring
arrangements entered into in the ordinary course of business in an
aggregate amount not to exceed $6,000,000 at any time outstanding.
SECTION 2. Representations and Warranties. The Borrowers represent and
warrant to each of the Lenders that:
(a) The execution, delivery and performance by Holdings and the
Borrowers of this Amendment (i) have been duly authorized by all requisite
corporate and, if required, stockholder action and (ii) will not (A)
violate (1) any provision of law, statute, rule or regulation, the
certificate of incorporation or other constitutive documents or by-laws of
any Loan Party or (2) any order of any Governmental Authority, (B) be in
conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under any contractual obligation of
any Loan Party or (C) result in or require the creation or imposition of
any Lien (other than any Lien permitted under Section 6.02(r) of the
Credit Agreement after giving effect to this Amendment, or any Lien
created under the Credit Agreement or under the Security Documents) upon
or with respect to any property or assets now owned or hereafter acquired
by any Loan Party.
(b) This Amendment has been duly executed and delivered by Holdings
and the Borrowers and constitutes a legal, valid and binding obligation of
Holdings and the Borrowers enforceable against each of them in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting creditors', rights generally or
equitable principles relating to or limiting creditors' rights generally.
(c) (i) The representations and warranties of the Borrowers set
forth in the Loan Documents are true and correct in all material respects
as of the date this Amendment is effective, except to the extent such
representations and warranties expressly relate to an earlier date (in
which case such representations and warranties shall have been true and
correct in all material respects on such earlier date) and (ii) no Default
has occurred and is continuing.
SECTION 3. Loan Documents. This Amendment and each certificate and
instrument delivered by any Loan Party in connection herewith shall be a Loan
Document for all purposes.
SECTION 4. Effectiveness. This Amendment shall become effective as of the
date hereof when the Administrative Agent shall have received copies hereof
that, when taken together, bear the signatures of each of the Borrowers,
Holdings and the Required Lenders.
SECTION 5. Notices. All notices hereunder shall be given in accordance with
the provisions of Section 9.01 of the Credit Agreement.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. No Novation. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of or otherwise affect the
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rights and remedies of any party under the Credit Agreement, nor alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein.
SECTION 8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 9. Headings. Section headings used herein are for convenience of
reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
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IN WITNESS WHEREOF, the Borrowers, Holdings and Lenders constituting the
Required Lenders have caused this Amendment to be duly executed by their duly
authorized officers, all as of the date and year first above written,
LIFESTYLE FURNISHINGS
INTERNATIONAL LTD., as the Parent Borrower,
by
_____________________
Name:
Title:
AMETEX FABRICS, INC.,
THE BERKLINE CORPORATION,
DREXEL HERITAGE FURNISHINGS, INC.,
HENREDON FURNITURE INDUSTRIES, INC.,
INTERIOR FABRIC DESIGN, INC.,
INTRO EUROPE, INC.,
LA TOURELL BARGE, INC.,
LEXINGTON FURNITURE INDUSTRIES, INC.,
LIFESTYLE HOLDINGS, LTD.,
XXXXXXXX-XXXXX, INC.,
MARBRO LAMP COMPANY,
XXXX, SON & XXXXXXX, INC.,
XXXXXX XXXXX FABRICS, INC.,
XXXXXX XXXXX FABRICS OF N.Y., INC.,
SUNBURY TEXTILE XXXXX, INC.,
UNIVERSAL FURNITURE LIMITED,
each as a Subsidiary Borrower,
by
_____________________
Name:
Title:
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FURNISHINGS INTERNATIONAL INC.,
by
_____________________
Name:
Title:
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XXX XXXXX XXXXXXXXX BANK,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
_____________________
Name:
Title:
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XXXXX XXXXXXXXX BANK DELAWARE,
as Issuing Bank,
by
_____________________
Name:
Title:
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ACADIA PARTNERS,
by
_____________________
Name:
Title:
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AERIES FINANCE LTD.,
by
_____________________
Name:
Title:
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XXXXXXX XXXX XX XXXXXXX,
by
_____________________
Name:
Title:
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[Intentionally left blank]
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BANK OF MONTREAL,
by
_____________________
Name:
Title:
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XXXX XX XXXXXXXX,
by
_____________________
Name:
Title:
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BANK OF TOKYO - MITSUBISHI TRUST
COMPANY,
by
_____________________
Name:
Title:
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CAPTIVA FINANCE LTD.,
by
_____________________
Name:
Title:
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CERES FINANCE, LTD.,
by
_____________________
Name:
Title:
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XXX HIGH YIELD LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank),
by
_____________________
Name:
Title:
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CIBC INC.,
by
_____________________
Name:
Title:
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COMERICA BANK,
by
_____________________
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH,
by
___________________
Name:
Title:
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CREDIT LYONNAIS ATLANTA AGENCY,
by
_____________________
Name:
Title:
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XXXXXXXX XXXX XX, XXX XXXX AND
GRAND CAYMAN BRANCHES,
by
_________________
Name:
Title:
by
_________________
Name:
Title:
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FIRST AMERICAN NATIONAL BANK,
by
_________________
Name:
Title:
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FIRST SOURCE FINANCIAL LLP,
By First National Source, Inc.,
Its Agent/Manager,
by
_____________________
Name:
Title:
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FLEET NATIONAL BANK,
by
_______________________
Name:
Title:
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XXXXXX FINANCIAL, INC.,
by
_____________________
Name:
Title:
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INDOSUEZ CAPITAL FUNDING II, LIMITED
By Indosuez Capital as Portfolio Advisor
by
___________________________
Name:
Title:
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ML CBO IV (CAYMAN) LTD.
BY PROTECTIVE ASSET MANAGEMENT,
L.L.C.
AS COLLATERAL MANAGER
by
_____________________
Name:
Title:
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XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.,
by
_____________________
Name:
Title:
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XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By:
_______________________
Name:
Title:
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XXX XXXX,
by
_____________________
Name:
Title:
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NEW YORK LIFE INSURANCE COMPANY,
by
___________________
Name:
Title:
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NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION,
By: NEW YORK LIFE INSURANCE
COMPANY
by
________________
Name:
Title:
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XXX XXXX SECURITIES FUND, L.P.,
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
_________________________
Name:
Title:
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OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO
(a unit of The Chase Manhattan Bank)
by
_____________________
Name:
Title:
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XXXXXXX XXXXXXX PRIME RATE TRUST,
by
____________________
Name:
Title:
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PNC BANK, NATIONAL ASSOCIATION,
by
__________________
Name:
Title:
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PRIME INCOME TRUST,
by
_____________________
Name:
Title:
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[Intentionally left blank]
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XXX XXXX XX XXX XXXX,
by
_____________________
Name:
Title:
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XXX XXXX XX XXXX XXXXXX,
by
_____________________
Name:
Title:
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THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH,
by
_____________________
Name:
Title:
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THE FIRST NATIONAL BANK OF BOSTON,
by
_____________________
Name:
Title:
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THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by
___________________
Name:
Title:
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RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS B.V.
BY: Chancellor LGT Senior Secured
Management, Inc. as Portfolio Advisor
by
______________________
Name:
Title:
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XXX XXXXX XXXX, XXXXXXX,
XXXXXXX BRANCH,
by
_____________________
Name:
Title:
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SENIOR DEBT PORTFOLIO
BY: Boston Management and Research
as Investment Adviser
by
_______________________
Name:
Title:
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SOUTHERN PACIFIC THRIFT & LOAN,
by
______________________
Name:
Title:
-00-
X.X. XXXXXXXX XXXX XX XXXXXX,
by
________________________
Name:
Title:
-00-
XXX XXXXXX XXXXXXXX CAPITAL
PRIME RATE INCOME TRUST,
by
__________________
Name:
Title:
-00-
XXXXXXXX XXXX XX XXXXX XXXXXXXX,
N.A.,
by
_______________________
Name:
Title:
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