Exhibit 4(f)
EXECUTION COPY
AMENDMENT NO. 4 OF PURCHASE AND CONTRIBUTION AGREEMENT
AMENDMENT NO. 4, dated as of January 1, 1998, to the Purchase and
Contribution Agreement, dated as of November 15, 1994, as amended and
restated as of December 29, 1995, and as further amended as of June
27, 1996, as of September 6, 1996 and as of June 27, 1997 (the
"Agreement"), among THE LANE COMPANY, INCORPORATED, ACTION INDUSTRIES,
INC., BROYHILL FURNITURE INDUSTRIES, INC. and THOMASVILLE FURNITURE
INDUSTRIES, INC., as sellers (the "Sellers"), and INTERCO RECEIVABLES
CORP., as purchaser (the "Purchaser") (the "Amendment").
PRELIMINARY STATEMENTS
1. Terms used herein but not defined herein shall have the
meanings assigned thereto in the Agreement.
2. On or before January 1, 1998, Furniture Brands
International, Inc. will organize a new wholly-owned subsidiary, Lane
Furniture Industries, Inc., under the laws of the State of Delaware
(hereinafter "New Lane Holdings"). New Lane Holdings is intended to
be a holding company and not an operating company.
3. On or before January 1, 1998, Furniture Brands
International, Inc. will transfer to New Lane Holdings all of the
issued and outstanding capital stock of The Lane Company,
Incorporated, a corporation organized under the laws of the State of
Virginia ("Lane-VA"). Also on or before January 1, 1998, Lane-VA will
organize a new wholly-owned subsidiary under the laws of the State of
Mississippi (such subsidiary to be referred to hereinafter as "Action
Merger Sub Inc.").
4. Action Industries, Inc., a corporation organized under the
laws of the State of Virginia ("Action-VA"), is a wholly-owned
subsidiary of Lane-VA. On or before January 0, 0000, Xxxx-XX will
transfer all of the issued and outstanding stock of Action-VA, as a
contribution of capital, to Action Merger Sub Inc.
5. On or before January 1, 1998, and pursuant to resolutions
of the boards of directors and shareholders of Action-VA and Action
Merger Sub Inc., Action-VA intends to transfer all of the right, title
and interest to all of its tangible and intangible properties, assets
and businesses, subject to all existing liens and encumbrances
(collectively, the "Action Assets") to Action Merger Sub Inc. (such
transfer hereinafter called the "Liquidation") in exchange for the
surrender by Action Merger Sub Inc. of all its shares of Action-VA and
the simultaneous cancellation of such shares by Action-VA.
6. Immediately following the Liquidation, and pursuant to
resolutions of the boards of directors and shareholders of Lane-VA and
Action Merger Sub Inc., Lane-VA intends to transfer to Action Merger
Sub Inc. all of its right, title and interest in all of the tangible
and intangible properties, assets and businesses, subject to all
existing liens and encumbrances, of the Royal Division of Lane-VA (the
foregoing transfer is hereinafter called the "Contribution").
Following the Contribution, all of the businesses and contracts of the
Royal Division of Lane-VA will be continued by Action Merger Sub Inc.
7. Immediately following the Contribution, pursuant to various
resolutions of the Board of Directors of Lane-VA, Lane-VA intends to
declare a dividend consisting of all of the issued and outstanding
capital stock of Action Merger Sub Inc. (the "Dividend").
8. Following the Liquidation, the Contribution and the
Dividend, Action Merger Sub Inc. shall change its name to "Action
Industries, Inc."
9. On or before January 3, 1998, the Board of Directors of
Thomasville Upholstery, Inc., a corporation organized under the laws
of the State of Delaware, and Thomasville, as the sole shareholder of
Thomasville Upholstery, Inc., intend to vote to liquidate and dissolve
Thomasville Upholstery, Inc. and simultaneously therewith, Thomasville
Upholstery, Inc. will transfer all of its right, title and interest in
all of its tangible and intangible properties, assets and businesses,
subject to all existing liens and encumbrances, to Thomasville, with
the result that Thomasville shall continue in the businesses and
contracts of Thomasville Upholstery, Inc.
10. On or before January 1, 1998, the Board of Directors of
Xxxxxx'x, Inc., a corporation organized under the laws of Delaware,
and Thomasville, as the sole shareholder of Xxxxxx'x, Inc., intend to
vote to liquidate and dissolve Xxxxxx'x, Inc. and simultaneously
therewith, Xxxxxx'x, Inc. will transfer all of its right, title and
interest in all of its tangible and intangible properties, assets and
businesses, subject to all existing liens and encumbrances, to
Thomasville, with the result that Thomasville shall continue in the
businesses and contracts of Xxxxxx'x, Inc.
11. The Sellers have requested that the Purchaser waive
compliance with certain provisions of the Agreement in order to enable
the Sellers to effectuate the transactions described in paragraphs 2
through 10 of these Preliminary Statements (collectively, the
"Reorganization"), and the Purchaser is willing to agree to amend the
Agreement as hereinafter set forth as of the date on which (i) each of
the transactions constituting the Reorganization has occurred, and
(ii) each of the terms and conditions in this Agreement (including
without limitation the conditions precedent in paragraph 3A and the
conditions subsequent in paragraph 3B) has been met (such date, the
Effective Date ).
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby expressly acknowledged by all
parties, the parties agree as follows:
1. Acknowledgment of Waiver. In reliance on the Sellers'
representation in the following sentence, the Purchaser, as of the
Effective Date, hereby consents to the Reorganization and waives any
and all violations of the Agreement resulting solely from actions
taken by the Sellers to effectuate the Reorganization, including but
not limited to, actions required to be taken or prohibited under
Section 5.01, concerning preservation of corporate existence, and
Section 5.03(e), concerning changes in corporate names. Each of the
Sellers represents and warrants, as of the date hereof and as of the
Effective Date, that the Reorganization will not materially and
adversely affect its Contracts or the collectibility of Transferred
Receivables originated by it.
2. Amendment of Agreement. The Agreement shall be and is
hereby amended, as of the Effective Date, as follows:
A. Action-VA shall cease to be a party to the Agreement, and
Action Merger Sub Inc. shall be added as a party to the Agreement.
Action Merger Sub Inc. hereby agrees to assume and perform, and to be
bound by, all of the obligations of Action-VA under the Agreement.
Without limiting the generality of the foregoing, Action Merger Sub
Inc. acknowledges that pursuant to Section 5.05 of the Agreement, it
grants a security interest to the Purchaser in all of its right, title
and interest now or hereafter existing in, to and under all
Receivables which do not constitute Transferred Receivables, the
Related Security and all Collections with regard thereto. From and
after the Effective Date, all references in the Agreement to "Action"
shall be deemed to be a reference to Action Merger Sub Inc., and all
of the covenants, representations, warranties, entitlements and
agreements of Action-VA shall become the covenants, representations,
warranties, entitlements and agreements of Action Merger Sub Inc..
B. The definition of "CP Rate" is hereby amended and restated
in its entirety as follows:
"CP Rate" means, at any time, the weighted
average of the rates paid by the Purchaser
as "Yield" with respect to all "Receivable
Interests" outstanding under the CL Sale
Agreement during the preceding calendar month,
as such rate is determined by the Purchaser
from time to time.
C. Section 6.01(b) is hereby amended and restated in its
entirety as follows:
(b) Until the Purchaser gives notice (the
"Successor Notice") to any Seller of a
designation of a new Servicer for such Seller's
Transferred Receivables, Action is hereby
designated as Servicer for Transferred
Receivables originated by Action, Broyhill
is hereby designated as Servicer for
Transferred Receivables originated by Broyhill,
Lane is hereby designated as Servicer for
Transferred Receivables originated by Lane and
Thomasville is hereby designated as Servicer for
Transferred Receivables originated by Thomasville.
Action, Broyhill, Lane and Thomasville each hereby
agrees to perform the duties and obligations of
the Servicer for such Transferred Receivables
pursuant to the terms hereof. The Successor Notice
may only be given following the occurrence and
during the continuation of a Servicer Default.
Any Servicer other than such Seller shall execute
any confidentiality agreement reasonably requested
by such Seller in connection with the designation
of a new Servicer.
D. Section 6.01(c) is hereby amended by inserting "Action,"
immediately following the reference to Lane in the first line thereof.
E. Schedule II to the Agreement is hereby amended by changing
the parenthetical at the end of the address of the first bank listed
therein as follows: "(With respect to Receivables originated by
Lane)."
F. Schedule II to the Agreement is hereby amended by adding an
additional Bank and Lock-Box Account No. as follows:
Bank Lock-Box Account No.
---- --------------------
First Union National Bank 60015 (Lock-Box Number)
000 Xxxxx Xxxxxxx Xx. 2020000105514 (Lock-Box
Xxxxxxxxx, XX 00000 Account Number)
3. A. Conditions Precedent. The effectiveness of the waiver
and the amendments set forth in Sections 1 and 2 are subject to the
conditions precedent that the Purchaser and the Purchaser's assignee
shall have received each of the following, in form and substance
satisfactory to the Purchaser and the Purchaser's assignee:
(i) Certified copies of resolutions of the Board of Directors of
(x) Action-VA, Lane-VA, New Lane Holdings, Action Merger Sub Inc. and
Thomasville approving each of their actions with respect to the
Reorganization and (y) each of the Sellers (including Action Merger
Sub Inc.) approving this Amendment;
(ii) A certificate of the Secretary or Assistant Secretary of
Action Merger Sub Inc. certifying the names and the signatures of the
officers authorized on its behalf to sign this Amendment and the other
documents to be delivered by it hereunder;
(iii) Financing Statements (Form UCC-1) naming Action Merger Sub
Inc. as the debtor and the Purchaser as the secured party, as may be
necessary or, in the opinion of the Purchaser, advisable under the UCC
of all appropriate jurisdictions or other applicable law to perfect
the Purchaser's ownership of and security interest in the Receivables
originated by Action Merger Sub Inc. and Related Security and
Collections with respect thereto;
(iv) A Lock-Box Agreement in respect of each Lock-Box Account
of Action Merger Sub Inc., duly executed by the Lock-Box Bank holding
such Lock-Box Account;
(v) The Amended and Restated Agreement of Furniture Brands
International, Inc;
(vi) Copies of all agreements entered into by the Sellers and
their affiliates to effectuate the Reorganization;
(vii) The Articles of Incorporation of Action Merger Sub Inc.,
duly certified by the Secretary of State of Mississippi, as of a
recent date acceptable to Purchaser, together with a copy of the By-
Laws of Action Merger Sub Inc., duly certified by its Secretary or
Assistant Secretary; and
(viii) Favorable opinions of counsel for each of the Sellers and
Furniture Brands International, Inc. as to such matters as the
Purchaser may reasonably request.
B. Conditions Subsequent. The effectiveness of the
waiver and the amendments set forth in Sections 1 and 2 are subject to
the conditions subsequent that the Purchaser and the Purchaser's
assignee shall have received each of the following, in form and
substance satisfactory to the Purchaser and the Purchaser's assignee:
(i) Written notice from the chief executive officer or chief
operating officer of each of Lane-VA and Action Merger Sub Inc. or its
successor to the effect that the transactions described in paragraphs
6, 7 and 8 of the Preliminary Statements hereof have been completed.
(ii) A true and complete copy of the Credit and Collection
Policy (the Policy ) adopted by Action Merger Sub Inc. or its
successor, which Policy shall require that Action Merger Sub Inc. or
its successor shall originate and/or service any and all Transferred
Receivables in accordance with standards of origination and servicing
customary for prudent originators or servicers of similar receivables
in the industry and, in any event, in accordance with standards of
origination and servicing acceptable to the Purchaser or its assignee.
(iii) A certificate of the chief executive officer or chief
operating officer of Action Merger Sub Inc. or its successor
certifying that Action Merger Sub Inc. has adopted and effectively
implemented such Credit and Collection Policy (including without
limitation employment of personnel having adequate experience in
origination and servicing and the implementation and maintenance of
adequate computer and data management systems).
4. Representations and Warranties. Each of the Sellers
(including Action Merger Sub Inc.) confirms that each of the
representations and warranties made by it in Section 4.01 of the
Agreement, as amended by this Amendment, is correct on and as of the
date hereof and will be correct as of the Effective Date as though
made on and as of this date or the Effective Date, as the case may be.
Each of the Sellers (including Action Merger Sub Inc.) further
represents and warrants that (a) this Amendment has been duly
authorized, executed and delivered by it pursuant to its corporate
powers, and (b) after giving effect to this Amendment, no Event of
Termination, or event that would constitute an Event of Termination
but for the requirement that notice be given or time elapse or both,
will exist.
5. Execution in Counterparts, Etc. This Amendment may be
executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together
shall constitute one and the same amendment. The delivery of a signed
signature page to this Amendment by telecopy transmission shall
constitute due execution and delivery of this Amendment for all
purposes.
6. Agreement in Full Force and Effect. Except as amended by
this Amendment, all of the provisions of the Agreement are ratified
and confirmed in all respects and shall remain in full force and
effect in accordance with their terms.
7. References to Agreement. From and after the date hereof,
(a) all references in the Agreement to "this Agreement", "hereof",
"herein", or similar terms and (b) all references to the Agreement in
each agreement, instrument and other document executed or delivered in
connection with the Agreement, shall mean and refer to the Agreement,
as amended by this Amendment.
8. Further Assurances. The parties hereto agree to execute
and deliver any and all further agreements, certificates and other
documents reasonably necessary to implement the provisions of this
Amendment.
9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York without
giving effect to the conflict of laws principles thereof.
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused
this Amendment to be duly executed by their respective officers
thereunto duly authorized as of the day and year first above written.
SELLERS: THE LANE COMPANY, INCORPORATED
By: Xxxx Xxxxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
ACTION MERGER SUB, INC.
(a Mississippi corporation)
By: Xxxx Xxxxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
ACTION INDUSTRIES, INC.
By: Xxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
BROYHILL FURNITURE INDUSTRIES, INC.
By: Xxxx Xxxxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
THOMASVILLE FURNITURE INDUSTRIES, INC.
By: Xxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
PURCHASER: INTERCO RECEIVABLES CORP.
By: Xxxx Xxxxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Vice President
