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Exhibit 10.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment Agreement")
is made and entered into effective as of the 10th day of November, 1997, by and
among RIVER OAKS FURNITURE, INC., a Mississippi corporation having its principal
place of business in Xxxxxx, Mississippi ("River Oaks"), R.O. WEST, INC., a
Mississippi corporation having its principal place of business in Xxxxxx,
Mississippi ("R.O. West"), R.O. EAST, INC., a Mississippi corporation having its
principal place of business in Xxxxxx, Mississippi ("R.O. East"), XXXXXX
MANUFACTURING COMPANY, a Tennessee corporation having its principal place of
business in Xxxxxx, Mississippi ("Xxxxxx") (River Oaks, R.O. West, R.O. East and
Xxxxxx being referred to collectively as the "Borrowers" and individually as a
"Borrower"), BNY FINANCIAL CORPORATION, a corporation organized under the laws
of the State of New York ("BNYFC"), in its capacity as a Lender, and each other
financial institution which may hereafter execute and deliver an instrument of
assignment with respect to this Amendment (hereinafter such financial
institutions may be referred to individually as a "Lender" or collectively as
the "Lenders"), and BNY FINANCIAL CORPORATION, a corporation organized under the
laws of the State of New York, in its capacity as agent for the Lenders (the
"Agent") under the Credit Agreement (as defined below). Unless the context
otherwise requires, all terms used herein without definition shall have the
definitions provided therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Agent, the Borrowers and the Lenders thereunder have
entered into that certain Revolving Credit and Term Loan Agreement dated as of
July 26, 1996 (as hereby and from time to time amended, supplemented or
replaced, the "Credit Agreement"), pursuant to which the Lenders have agreed to
make certain revolving and term credit facilities available to the Borrowers;
and
WHEREAS, the parties hereto desire to amend the Credit Agreement in the
manner herein set forth effective as of the date hereof.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein and in any of the Loan Documents shall mean the Credit
Agreement as hereby amended and modified, and as further amended, modified,
restated or supplemented from time to time as permitted thereby.
2. Amendments. Subject to the conditions hereof, the Credit Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Loan Documents" is hereby deleted in
its entirety and the following is inserted in replacement thereof:
"Loan Documents" means this Agreement; the Notes; the
Security Instruments; the Facility Guaranties; the Factoring
Documents; the $2,000,000 Term Note dated as of November 10,
1997 by the Borrowers in favor of BNYFC; the $1,000,000 Term
Note dated as of November 10, 1997 by the Borrowers in favor
of BNYFC; and all other instruments and documents heretofore
or hereafter executed or delivered to or in favor of any
Lender or the Agent in connection with the Loans made and
transactions contemplated under this Agreement or the
Factoring Agreement, as the same may be amended, supplemented
or replaced from the time to time.
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(b) The definition of Total Revolving Credit Commitment" is
hereby deleted in its entirety and the following is inserted in
replacement thereof:
"Total Revolving Credit Commitment" means a principal
amount equal to $40,500,000.
3. Limited Waiver. BNYFC hereby waives the breach of any covenant of
the Credit Agreement, including but not limited to Section 9.5 of the Credit
Agreement, that would otherwise result from (i) the execution by any of the
Borrowers of the $2,000,000 Term Note of even date herewith by the Borrowers in
favor of BNYFC, (ii) the execution by any of the Borrowers of the $1,000,000
Term Note of even date herewith by the Borrowers in favor of BNYFC or (iii) the
execution of this Amendment Agreement; provided, however, that this waiver is
limited to those covenants the breach of or non-compliance with which would, but
for this waiver, occur immediately on the date hereof by the incurrence of the
Indebtedness set forth in (i) and (ii) above or by the execution of this
Amendment Agreement, and this waiver does not and is not intended to waive any
breach of or non-compliance with any financial covenant set forth in Section 9.1
of the Credit Agreement or any other covenant the breach of or non-compliance
with which occurs at any time after the date hereof.
4. Guarantors. Each Guarantor hereby (i) consents and agrees to the
amendments to the Credit Agreement set forth herein and (ii) confirms its joint
and several guarantee of payment of all the Obligations pursuant to the Facility
Guaranty.
5. Representations and Warranties. Each of the Borrowers hereby
certifies that:
(a) The representations and warranties made by each Borrower
in Article VII of the Credit Agreement are true and correct in all
material respects on and as of the date hereof, with the same effect as
though such representations and warranties were made on the date
hereof, except to the extent that such representations and warranties
expressly relate to an earlier date.
(b) After application of the waiver set forth in Section 3
hereof, no event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, will constitute a
Default or an Event of Default on the part of any Borrower under the
Credit Agreement or any other Loan Document either immediately or with
the lapse of time or the giving of notice, or both.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated herein, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any proceeding or succeeding breach thereof.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
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8. Counterparts. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the state of New York.
10. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrowers, the Lenders and the
Agent and their respective successors, assigns and legal representatives;
provided, however, that the Borrowers, without the prior consent of the Agent,
may not assign any rights, powers, duties or obligations hereunder.
12. Expenses. The Borrowers agree, jointly and severally, to pay to
the Agent and the Lenders all reasonable out-of-pocket expenses incurred or
arising in connection with the negotiation and preparation of this Amendment
Agreement.
[Signature pages follow.]
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BNY FINANCIAL CORPORATION
BY: /S/ XXXXXXX X. XXXXXXXX
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NAME: XXXXXXX X. XXXXXXXX
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TITLE: SR. VICE PRESIDENT
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