WAIVER
Exhibit 10.1
EXECUTION VERSION
This Waiver (this “Waiver”) is entered into as of September 24, 2010 between and among
Furniture Brands International, Inc., a Delaware corporation (“Furniture Brands”), Broyhill
Furniture Industries, Inc., a North Carolina corporation (“Broyhill”), HDM Furniture Industries,
Inc., a Delaware corporation (“HDM”), Lane Furniture Industries, Inc., a Mississippi corporation
(“Lane”), Thomasville Furniture Industries, Inc., a Delaware corporation (“Thomasville”, and,
together with Furniture Brands, HDM, Broyhill and Lane, each a “Borrower,” and, collectively, the
“Borrowers”), the other Loan Parties, JPMorgan Chase Bank, N.A., individually and as Administrative
Agent (the “Administrative Agent”) and the other financial institutions party hereto.
RECITALS
A. The Borrowers, the other Loan Parties, the Lenders and the Administrative Agent are party
to that certain Credit Agreement dated as of August 9, 2007, as amended (the “Credit Agreement”).
Unless otherwise specified herein, capitalized terms used in this Waiver shall have the meanings
ascribed to them by the Credit Agreement.
B. The Borrowers have requested a waiver of, and the undersigned Lenders wish to waive,
certain provisions of the Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1. Waiver. The Administrative Agent and the undersigned Lenders hereby waive any
Default or Event of Default under the Credit Agreement arising out of a breach of the
representation and warranty set forth in the second sentence of Section 3.10 thereof which arises
out of the making or deemed making of such representation and warranty on or after the date hereof
and prior to January 1, 2012.
2. Representations and Warranties of the Loan Parties. Each of the Loan Parties
represents and warrants that:
(a) The execution, delivery and performance by the Loan Parties of this Waiver have
been duly authorized by all necessary corporate action and that this Waiver is a legal,
valid and binding obligation of the Loan Parties enforceable against the Loan Parties in
accordance with its terms, except as the enforcement thereof may be subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors’ rights generally;
(b) After giving effect to this Waiver, each of the representations and warranties
contained in the Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof (except that any representation or warranty
that relates to a specific date shall be true and correct in all material respects as of
such date); and
(c) After giving effect to this Waiver, no Default or Event of Default has occurred and
is continuing.
3. Effective Date. This Waiver shall become effective as of the date first set forth
above (the “Effective Date”) upon the execution and delivery hereof by the Loan Parties, the
Required Lenders, and the Administrative Agent (without respect to whether it has been executed and
delivered by all the Lenders).
4. Reaffirmation. Each of the undersigned Loan Guarantors hereby unconditionally
consents to the terms of this Waiver and fully ratifies and affirms its respective obligations
under Article X of the Credit Agreement, taking into account this Waiver.
5. Reference to and Effect Upon the Credit Agreement
(a) The Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Waiver shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or any Lender under the
Credit Agreement or any other Loan Document, nor constitute a waiver of any provision of the
Credit Agreement or any other Loan Document, except as specifically set forth herein.
6. Costs and Expenses. The Borrowers hereby affirm their obligations under Section
9.03 of the Credit Agreement to reimburse the Administrative Agent for all reasonable out-of-pocket
costs and expenses incurred by the Administrative Agent in connection with the preparation,
execution and delivery of this Waiver, including but not limited to the reasonable fees, charges
and disbursements of attorneys for the Administrative Agent with respect thereto.
7. Governing Law. This Waiver shall be construed in accordance with and governed by
the law of the State of Illinois.
8. Headings. Section headings in this Waiver are included herein for convenience of
reference only and shall not constitute a part of this Waiver for any other purposes.
9. Counterparts. This Waiver may be executed in any number of counterparts, each of
which when so executed shall be deemed an original but all such counterparts shall constitute one
and the same instrument.
10. Termination of Existing Waiver. The Loan Parties and each of the Lenders party
hereto hereby agree that upon the Effective Date, the waiver granted pursuant to Section 2(c) of
that certain Amendment No. 2 to Credit Agreement and Waiver dated as of February 20, 2009 among the
Loan Parties, the Administrative Agent and the Lenders party thereto is terminated and of no
further effect.
[signature pages follow]
2
IN WITNESS WHEREOF, the parties have executed this Waiver as of the date and year first above
written.
| LOAN PARTIES: | ||||||
| FURNITURE BRANDS INTERNATIONAL, INC. | ||||||
| BROYHILL FURNITURE INDUSTRIES, INC. | ||||||
| LANE FURNITURE INDUSTRIES, INC. | ||||||
| THOMASVILLE FURNITURE INDUSTRIES, INC. | ||||||
| ACTION TRANSPORT, INC. | ||||||
| BROYHILL TRANSPORT, INC. | ||||||
| BROYHILL RETAIL, INC. | ||||||
| BROYHILL HOME FURNISHINGS, INC. | ||||||
| THOMASVILLE RETAIL, INC. | ||||||
| HDM RETAIL, INC. | ||||||
| FAYETTE ENTERPRISES, INC. | ||||||
| HDM FURNITURE INDUSTRIES, INC. | ||||||
| HDM TRANSPORT, INC. | ||||||
| LANEVENTURE, INC. | ||||||
| XXXXXXXX-XXXXX FURNITURE INDUSTRIES, INC. | ||||||
| XXXXXXXX-XXXXX HOME FURNISHINGS, INC. | ||||||
| THE LANE COMPANY, INCORPORATED | ||||||
| LANE HOME FURNISHINGS RETAIL, INC. | ||||||
| THOMASVILLE HOME FURNISHINGS, INC. | ||||||
| FURNITURE BRANDS RESOURCE COMPANY, INC. | ||||||
| FURNITURE BRANDS HOLDINGS, INC. | ||||||
| By | /s/ Xxxxxxx X. Xxxx | |||||
| Name: | Xxxxxxx X. Xxxx | |||||
| Title: | Vice President and Treasurer of Furniture Brands and each of the above Loan Parties | |||||
| JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent | ||||||
| By | /s/ Xxxxxxxx X. Xxxx | |||||
| Name: | Xxxxxxxx X. Xxxx | |||||
| Title: | Duly Authorized Signatory | |||||
| BANK OF AMERICA, N.A. | ||||||
| By | /s/ Xxxxxx Xxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxx | |||||
| Title: | AVP, AB Portfolio Specialist | |||||
| CAPITAL ONE LEVERAGE FINANCE CORP. | ||||||
| By | /s/ Xxxxxxx Xxxxx | |||||
| Name: | Xxxxxxx Xxxxx | |||||
| Title: | Senior Vice President | |||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, successor-by-merger to Wachovia Bank, National Association | ||||||
| By | /s/ Xxxx Xxxxxxxx | |||||
| Name: | Xxxx Xxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| PNC BANK, NATIONAL ASSOCIATION | ||||||
| By | /s/ Xxxxx Xxxx | |||||
| Name: | Xxxxx Xxxx | |||||
| Title: | Vice President | |||||
| FIFTH THIRD BANK, A MICHIGN BANKING CORPORATION | ||||||
| By | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Vice President | |||||
| GENERAL ELECTRIC CAPITAL CORPORATION | ||||||
| By | /s/ Xxxxx Xxxxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxxxx | |||||
| Title: | Duly Authorized Signatory | |||||
| UPS CAPITAL CORPORATION | ||||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Portfolio Manager | |||||
