FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT, dated as of March 16, 2004 (this "Agreement"),
is entered into by and among Xxxxx Xxxxxx International, Inc. (f/k/a WinsLoew
Furniture, Inc.), a Florida corporation ("Borrower"), WLFI Holdings, Inc.
("Holdings"), the Subsidiary Guarantors listed on the signature pages hereto
("Subsidiary Guarantors" and collectively with Holdings, "Guarantors"), the
Lenders party hereto and Canadian Imperial Bank of Commerce, as Administrative
Agent for Lenders ("Administrative Agent").
This Agreement is made with reference to that certain Credit Agreement
dated as of May 8, 2001 by and among Borrower, Lenders, CIBC Inc., as swing line
lender, Administrative Agent and CIBC World Markets Corp., as lead arranger and
bookrunner, as amended to date (as amended, the "Credit Agreement"). Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.
RECITALS
A. Borrower has failed to comply with certain of the provisions of the
Second Amendment dated as of March 19, 2003 among Borrower, Lenders, CIBC Inc.,
as swing line lender, and Administrative Agent (the "Second Amendment") and the
Credit Agreement, including failure to comply with the financial covenants set
forth in Sections 7.6A, 7.6B, 7.6C, 7.6D, 7.6F and 7.6G of the Credit Agreement,
in each case for the 4th Fiscal Quarter of Fiscal Year 2003, which failures have
created Events of Default and Potential Events of Default as of the date hereof
(any and all Events of Default and Potential Events of Default existing as of
the date hereof and any Events of Default subsequently arising from any
Potential Event of Default existing as of the date hereof, are herein called the
"Existing Defaults").
B. Borrower, Administrative Agent and Requisite Lenders have entered into a
Forbearance Agreement dated as of February 11, 2004, pursuant to which
Administrative Agent and Requisite Lenders agreed to forbear from exercising
certain remedies based on the Existing Defaults through 10:00 a.m., New York
City time of March 10, 2004, and a Forbearance Extension Agreement extending
such forbearance until March 16, 2004.
C. Borrower has requested that Administrative Agent and Requisite Lenders
agree to extend their forbearance from exercising certain remedies based on the
Existing Defaults to March 31, 2004 in order to provide additional time for
Borrower to attempt to arrange a refinancing all of the Obligations owed to the
Lenders or, if that proves impossible, to attempt to reach agreement concerning
a restructuring of the Credit Agreement. The Lenders consenting to this
Agreement are willing to so agree subject to the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower,
Guarantors, Lenders and Administrative Agent covenant and agree as follows:
I. ACKNOWLEDGEMENTS; REPRESENTATIONS; ADDITIONAL AGREEMENTS.
A. Borrower and Guarantors acknowledge and agree that the terms of the
Loan Documents to which each is a party are the valid and binding
obligations of Borrower and each such Guarantor, as applicable, in full
force and effect, enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency and
other similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability, and as of the
date hereof are not subject to any claims, offsets, defenses or
counterclaims. Borrower and the each Guarantor further expressly
acknowledge and agree that Administrative Agent, for its benefit and
the benefit of Lenders, has a valid, duly perfected and fully
enforceable security interest in and First Priority Lien against the
Collateral as collateral security for the Obligations. Borrower and
each Guarantor agree that they shall not (i) dispute the validity or
enforceability of the Credit Agreement and other Loan Documents or any
of their respective obligations thereunder, or the validity, priority,
enforceability or extent of Administrative Agent's security interest in
or lien against any item of Collateral or (ii) assist or otherwise
support any challenge to, or contest of, the validity or enforceability
of any Loan Document or the validity, priority, enforceability or
extent of Administrative Agent's security interest in or lien against
any item of Collateral by a third party with respect to any Prior Event
(as defined below).
B. Borrower and Guarantors represent that the representations and
warranties made in the Loan Documents are true and correct in all
material respects as of the date hereof as though made at and as of the
date hereof, except for such representations and warranties that relate
to a particular date, such representations and warranties being true,
correct and complete in all material respects on and as of such
particular date.
C. Each of Borrower and the Guarantors agrees that it is jointly and
severally obligated to reimburse on a monthly basis upon presentation
of invoices the reasonable fees and expenses (including, without
limitation, fees and costs of (i) counsel to Administrative Agent and
Lenders, (ii) the financial advisor, Crossroads, LLC, retained by
counsel to Administrative Agent and (iii) the collateral audit firm
Evergreen Collateral Consulting, LLC, retained by counsel to
Administrative Agent) of Administrative Agent and Lenders incurred in
connection with the Credit Agreement and this Agreement.
D. Each of Borrower and the Guarantors represents that:
1. It has all requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby, and
perform its obligations hereunder.
2. The execution, delivery and performance of this Agreement by it have
been duly authorized by all necessary corporate action on its part, and
this Agreement constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency and
other similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
3. The execution, delivery and performance by it of this Agreement does
not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to it, its Certificate or
Articles of Incorporation or Bylaws or any order, judgment or decree of
any court or other agency of government binding on it, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any of its Contractual Obligations, (iii)
result in or require the creation or imposition of any Lien upon any of
its properties or assets, or (iv) require any approval of its
stockholders or any approval or consent of any Person under any of its
Contractual Obligations.
4. The execution and delivery by it of this Agreement does not and will
not require any registration with, consent or approval of, or notice
to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
E. Each of Borrower and the Guarantors agrees to deliver to Administrative
Agent prompt notice by facsimile of any communication, written or oral,
related to defaults under, the actual or threatened exercise of
remedies under or possible restructuring of the Subordinated
Indebtedness, from or on behalf of a holder of or representative of
(including, without limitation, a trustee) any Subordinated
Indebtedness, together with a copy of any such written communication
received by Borrower or any Guarantor. Each Borrower and Guarantor
further agrees to deliver to Administrative Agent prompt notice by
facsimile of any communication, written or oral, related to defaults
under, the actual or threatened exercise of remedies under or possible
restructuring of the Subordinated Indebtedness, originated by Borrower
or any Guarantor to a holder of or representative of a holder of
(including, without limitation, a trustee) any Subordinated
Indebtedness in such person's capacity as such a holder or
representative, together with a copy of any such written notice or
legal process sent by Borrower or any Guarantor.
F. Each of Borrower and the Guarantors (i) represents that it has not made
or set aside any payments on account of the Senior Subordinated Notes since
August 15, 2003, and (ii) represents and agrees that it will not make a payment
on the Senior Subordinated Notes for the interest payment that was due on
February 17, 2004 except to the extent that Trivest Fund III funds the payment
of such interest pursuant to a subordinated loan as set forth in Section V.B
below. Borrowers and Guarantors hereby advise Administrative Agent that they
intend to make the February 17, 2004 payment on account of the Senior
Subordinated Notes concurrently with the effectiveness of this Agreement with
the proceeds of a subordinated loan made by Trivest Fund III as set forth in
Section V.B below.
G. Borrower and Guarantors acknowledge and agree that Existing Defaults
have occurred and are continuing, and such Existing Defaults constitute Events
of Defaults that, absent the agreement to forbear as set forth herein, would
entitle Lenders to declare the Obligations immediately due and payable and to
take action to collect the Obligations and to enforce all other rights and
remedies available to Lenders under the Loan Documents.
H. Borrower and Guarantors acknowledge and agree that, effective as of
January 1, 2004, interest began accruing at the rate set forth in subsection
2.2.E of the Credit Agreement, with such default interest payable on demand at
any time on or after the Forbearance Termination Date.
I. Attached hereto as Exhibit I is a term sheet for a possible
restructuring of the Credit Agreement. The parties agree and acknowledge that
this term sheet is intended as the basis for negotiations and that there will be
no agreement regarding an amendment to the Credit Agreement until and unless the
parties so agree and execute and deliver definitive documentation. Borrower and
Guarantors agree to negotiate diligently and in good faith concerning a possible
amendment to the Credit Agreement based on the term sheet attached as Exhibit I
with the objective of being able to execute such an amendment on the Forbearance
Termination Date if satisfying all of the Obligations under the Credit Agreement
through a refinancing proves impossible prior to the Forbearance Termination
Date.
J. Borrower represents and warrants that attached as Exhibit II are true,
complete and correct copies of commitment letters and term sheets received by it
relating to a potential refinancing of the Obligations. Borrower agrees that it
shall provide to Administrative Agent and Lenders regular updates (no less
frequently than weekly, unless otherwise agreed in writing by the Administrative
Agent) of the status of such refinancing.
II. FORBEARANCE AND OTHER AGREEMENTS.
A. Subject to the terms hereof and in reliance on the representations,
warranties, and agreements of Borrower and Guarantors herein contained,
Administrative Agent and each Lender that has executed this Agreement (the
"Consenting Lenders") agrees to forbear from accelerating the Obligations,
exercising a right of setoff, exercising collection rights, foreclosing against
the Collateral, demanding or collecting any default interest (provided, however,
that default interest shall accrue as set forth in section I.H of this
Agreement), or exercising any other remedies set forth in the Loan Documents or
at law or in equity with respect to the Obligations, in each case arising out of
the Existing Defaults, except for the right to retain financial advisors as
described above, until the earlier of (x) 10:00 a.m. New York City time on March
31, 2004, (y) the date upon which any of the Forbearance Conditions set forth in
Section III hereof is not satisfied or ceases to continue to be satisfied, and
(z) the failure to perform any of the provisions of, or the breach of any
representation, warranty or other covenant set forth in, this Agreement (each, a
"Forbearance Default") (the earliest of clauses (x), (y) and (z) being referred
to as the "Forbearance Termination Date"); provided, however, that nothing
herein shall be deemed to excuse satisfaction of any condition in the Credit
Agreement based on any Event of Default or Potential Event of Default or any
Forbearance Default, other than the Existing Defaults.
B. Administrative Agent and Consenting Lenders represent and warrant that
they have not delivered any Blockage Notice (as defined in the Subordinated Note
Indenture) and that Administrative Agent and Consenting Lenders will not deliver
a Blockage Notice with respect to the interest payment on the Senior
Subordinated Notes that was due on February 17, 2004, so as to allow such
interest payment to be made with the proceeds of the loan from Trivest Fund III,
the making of which is a condition to the effectiveness of this Agreement, as
set forth in Section V.B hereof.
C. Through the Forbearance Termination Date, the Borrower shall be entitled
to borrow and repay Revolving Loans pursuant to the Revolving Loan Commitment,
to convert or to continue the applicable basis for determining the interest rate
with respect to Loans, and to request the issuance of Letters of Credit, subject
to satisfaction of the conditions to a conversion or continuance contained in
subsection 2.2D of the Credit Agreement and the conditions to the extensions of
credit contained in Section 4 of the Credit Agreement, in each case other than
conditions that are not satisfied because of the Existing Defaults.
D. This agreement to forbear is limited strictly to the Existing Defaults,
so that on the Forbearance Termination Date or prior thereto upon the occurrence
of any Event of Default or Potential Event of Default under the Credit Agreement
(other than an Existing Default), Administrative Agent and Consenting Lenders
shall immediately be free to exercise any remedies set forth in the Credit
Agreement, the other Loan Documents or at law or equity. There shall be no grace
or cure period under this Agreement for any Forbearance Default.
E. This Agreement is an agreement of forbearance only and not an agreement
of waiver. Without limiting the generality of the foregoing, this Agreement does
not in any manner, either expressly or by implication, constitute a waiver,
rescission, release, or a modification of, or any agreement to waive, rescind,
release or modify, by Administrative Agent or any Lender, of any Event of
Default or Potential Event of Default currently existing under the Credit
Agreement or any of the other Loan Documents, whether or not constituting a part
of the Existing Defaults, and whether known or unknown, or (except as otherwise
expressly provided herein) any right or remedy which Administrative Agent or any
Lender may have by or pursuant to the Credit Agreement or any of the other Loan
Documents, under applicable law or principles of equity, or otherwise.
F. Consenting Lenders hereby consent to the incurrence of Indebtedness by
Borrower and Guarantors evidenced by the Trivest Subordinated Bond Interest Note
(as defined below) and to the execution and delivery of the First Amendment to
Security Agreement in substantially the form attached hereto as Exhibit III, and
waive any Event of Default or Potential Event of Default arising from Borrower's
incurrence of such Indebtedness or delivery of such First Amendment to Security
Agreement, or the failure to prepay the Loans from the net proceeds of such
Indebtedness.
G. Consenting Lenders hereby consent to the execution and delivery by the
Borrower of the Second Amendment to the Senior Subordinated Indenture in
substantially the form of Exhibit IV to this Agreement.
III. FORBEARANCE CONDITIONS.
The agreement to forbear set forth in Section II hereof is subject to the
satisfaction and continuation of the following conditions (the "Forbearance
Conditions"):
A. Other than any Existing Default, no Event of Default, Potential Event of
Default or Forbearance Default shall occur.
B. Borrower shall have satisfied and be in compliance with each term,
condition, and representation set forth in this Agreement.
C. Borrower or any Guarantor or any of their respective affiliates shall
not have commenced litigation against any Lender or Administrative Agent in
connection with or related to any of the transactions contemplated by the Loan
Documents, this Agreement, the Senior Subordinated Notes, or any other
documents, agreements, or instruments executed in connection with this
Agreement.
D. Borrower shall continue to operate its business on substantially the
same basis as it has through the date hereof.
E. Other than the Existing Defaults, no event or circumstance shall
hereafter occur, or shall heretofore have occurred but is hereafter discovered
by Lenders that has a Material Adverse Effect, regardless of whether such event
or circumstance would constitute an Event of Default.
F. No Subordinated Indebtedness (including the Senior Subordinated Notes)
shall have been accelerated and neither any representative (including any
trustee) nor the holders thereof shall have taken action to enforce any of their
remedies under such Subordinated Indebtedness.
IV. RESERVATION OF RIGHTS.
A. The agreement to forbear set forth above in Section II shall be limited
precisely as written and relates solely to the Existing Defaults through the
Forbearance Termination Date in the manner and to the extent above set forth.
B. Except as expressly provided in this Agreement, nothing in this
Agreement shall be deemed to:
1. constitute a waiver of compliance by Borrower or any Guarantor with
respect to the sections of the Credit Agreement that are the
subject of the Existing Defaults in any other instance or any
other term, provision or condition of the Credit Agreement or any
Loan Document or any other instrument or agreement referred
to therein;
2. constitute a waiver of compliance with respect to the Trivest Guaranty,
including, without limitation any payment obligations, or
3. prejudice any right or remedy that Administrative Agent or any Lender
may now have (except, solely until the Forbearance Termination Date,
to the extent such right or remedy was based upon the Existing
Defaults as set forth herein) or may have in the future under or in
connection with the Credit Agreement, any other Loan Document or any
other instrument or agreement referred to therein.
C. Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents and the Trivest
Guaranty shall remain unchanged and in full force and effect and in all other
respects are hereby ratified and confirmed.
D. Without limiting the generality of the foregoing, neither Borrower nor
any Guarantor will claim that this Agreement or any prior action or course of
conduct by Administrative Agent or any of the Lenders constitutes an agreement
or obligation to continue such action or course of conduct in the future, except
as expressly provided herein. Borrower and Guarantors acknowledge that, except
as expressly provided in this Agreement, Administrative Agent and the Lenders
have made no commitment as to how or if the Existing Defaults will be resolved
upon the Forbearance Termination Date or otherwise.
E. Subject only to the terms of this Agreement, and subject to any
applicable notice, grace or cure periods, Administrative Agent and Lenders may
exercise any right or remedy available to them pursuant to the Loan Documents or
by applicable law or in equity, including, without limitation, as the result of
an Event of Default other than an Existing Default, as a result of a Potential
Event of Default, as a result of any Forbearance Default or upon the Forbearance
Termination Date, and nothing herein shall operate to restrict, inhibit or
prohibit Administrative Agent or Lenders from exercising any such right or
remedy or from the prosecution or continued prosecution of any action or
proceeding in furtherance of the foregoing.
F. The Loan Documents are in full force and effect, and shall remain in
full force and effect, unless and until an agreement modifying the Loan
Documents is executed and delivered by the applicable parties, and then only to
the extent such an agreement actually modifies such Loan Documents.
G. At any time on or after the Forbearance Termination Date, Administrative
Agent and Lenders shall be entitled to exercise all their rights and remedies
(including rights and remedies based on the Existing Defaults), whether under
the Loan Documents or at law or in equity, without further notice or demand.
H. Borrower, Guarantors, Administrative Agent and Lenders may, from time to
time, engage in negotiations concerning the Obligations, which may be lengthy
and complex. None of Administrative Agent or Lenders shall have any obligation
to modify, amend and/or restructure the Obligations or any of the Loan Documents
in connection with such negotiations or otherwise. Each of Administrative Agent
and Lenders may terminate such negotiations at any time, in its sole discretion,
with or without notice, and without liability of any kind. None of
Administrative Agent or Lenders shall have any obligation or liability by virtue
of the commencement, prosecution or termination of negotiations concerning any
possible amendment. None of Administrative Agent or Lenders shall waive any
rights or incur any liability by negotiation or by the passage of time
associated therewith.
V. CONDITIONS TO EFFECTIVENESS.
This Agreement shall be effective upon the satisfaction of the following
conditions:
A. Administrative Agent shall have received executed signature pages to
this Agreement by the Requisite Lenders. Administrative Agent shall have
received counterparts of this Agreement executed by Borrower and Guarantors, and
an Acknowledgement Agreement from Trivest Fund III, L.P.("Trivest Fund III"),
executed by Trivest Fund III, substantially in the form of Exhibit V to this
Agreement.
B. Trivest Fund III shall have funded a loan to the Borrower in the sum of
$6,845,676.43 to fund the payment of accrued and unpaid interest on the Senior
Subordinated Notes due February 17, 2004 in the amount of $6,845,676.43 and
Administrative Agent shall have received a copy of an executed subordinated note
in the principal amount of $6,845,676.43 payable by Borrower to Trivest Fund III
substantially in the form attached hereto as Exhibit VI to this Agreement (the
"Trivest Subordinated Bond Interest Note") representing Borrower's obligation to
repay to Trivest Fund III the amount loaned by Trivest Fund III to Borrower to
fund the interest on the Senior Subordinated Notes due February 17, 2004.
C. Administrative Agent shall have received an executed amendment to the
Guaranty Subordination Agreement in substantially the form of Exhibit VII to
this Agreement providing that the Trivest Subordinated Bond Interest Note is
subordinated to the Obligations.
D. The Consent and Letter Agreement amending the Indenture governing the
Senior Subordinated Notes, substantially in the form of Exhibit VIII to this
Agreement, shall have been executed by the percentage of holders of Senior
Subordinated Notes sufficient to permit the amendment contemplated thereby to
become effective.
E. Administrative Agent shall have received, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, such other
documents, certificates and instruments as Administrative Agent shall reasonably
require.
F. All fees and expenses billed through the date hereof owing to
Administrative Agent and Lenders, including, without limitation, outstanding
fees and expenses of O'Melveny & Xxxxx LLP (including the fees and expenses of
Crossroads, LLC, and Evergreen Collateral Consulting, LLC, each of which has
been retained by O'Melveny & Xxxxx LLP), shall have been paid.
VI. GUARANTORS' ACKNOWLEDGEMENTS.
A. By signing below, each Guarantor: (a) acknowledges, consents and agrees
to the execution, delivery and performance by Borrower of this Agreement, and
(b) acknowledges and agrees that its obligations with respect to its guaranty
under the Subsidiary Guaranty or the Holdings Guaranty, as the case may be, or
any other Loan Documents executed by it are (i) not released, diminished,
waived, modified, impaired or affected in any manner by this Agreement, (ii)
hereby ratified and confirmed, and (iii) not subject to any claims, offsets,
defenses or counterclaims.
B. By signing below, each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Agreement,
Guarantors acknowledge that they are not required under the terms of the
Holdings Guaranty or the Subsidiary Guaranty , as the case may be, or any other
Loan Document to consent to the terms of this Agreement and (ii) nothing in this
Agreement or any of the Loan Documents shall be deemed to require the consent of
Guarantors to any future amendments to or modifications of or waivers with
respect to the Credit Agreement or any of the other Loan Documents, or shall
diminish or release Guarantors' guarantee of the Obligations or the force and
effect of the other Loan Documents , if such consent is not obtained.
VII. OTHER MATTERS.
A. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AFFECTED BY THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
B. This Agreement shall be governed by, and interpreted in accordance with,
New York law without regard to principles of conflicts of law.
C. JURY TRIAL WAIVERS. BORROWER, EACH GUARANTOR, ADMINISTRATIVE AGENT, AND
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY LOAN DOCUMENT OR ANY MATTER
ARISING FROM THE RELATIONSHIPS ESTABLISHED HEREIN OR THEREIN AND FOR ANY
COUNTERCLAIM THEREIN.
D. Release. Borrower and each Guarantor on behalf of themselves and any
Person claiming by, through, or under any Borrower and any Guarantor, and each
Subsidiary of Borrower and each Guarantor (if any), on behalf of themselves and
Persons claiming by, through, or under such Subsidiary, respectively,
acknowledges that they have no claim, counterclaim, setoff, action or cause of
action of any kind or nature whatsoever ("Claims") against all or any of the
Administrative Agent, the Lenders or any of the Administrative Agent's or the
Lenders' Affiliates, directors, officers, employees, agents, attorneys,
financial advisors, legal representatives, successors and assigns (the
Administrative Agent, the Lenders and their Affiliates, directors, officers,
employees, agents, attorneys, financial advisors, legal representatives,
successors and assigns are jointly and severally referred to as the "Lender
Group"), that directly or indirectly arise out of or are based upon or in any
manner connected with any "Prior Event" (as defined below), and Borrower and
each Guarantor and each Subsidiary of Borrower or any Guarantor hereby release
the Lender Group from any liability whatsoever should any Claims with respect to
any Prior Events that nonetheless exist. As used herein the term "Prior Event"
means any transaction, event, circumstance, action, failure to act or occurrence
of any sort or type, whether known or unknown, which occurred, existed or was
taken prior to the execution of this Agreement and occurred, existed or was
taken in accordance with, pursuant to or by virtue of any terms of this
Agreement, the transactions referred to herein, the Credit Agreement and any
Loan Document or oral or written agreement relating to any of the foregoing,
including without limitation any approval or acceptance given or denied.
E. Waiver of Civil Code ss. 1542. To the extent that the foregoing Release
is a release as to which Section 1542 of the California Civil Code or similar
provisions of other applicable law applies, it is the intention of the Releasing
Parties that the foregoing Release shall be effective as a bar to any and all
causes of action of whatsoever character, nature in kind, known or unknown,
suspected or unsuspected, herein and above specified to be so barred. In
furtherance of this intention, the Releasing Parties hereby expressly waive any
and all rights and benefits conferred upon them by the provisions of Section
1542 of the California Civil Code or similar provisions of other applicable law,
and acknowledge that Section 1542 of the California Civil Code provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
F. This Agreement 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 which taken
together shall constitute but one and the same instrument.
G. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any
other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
XXXXX XXXXXX INTERNATIONAL, INC
(f/k/a WinsLoew Furniture, Inc.), as Borrower
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Administrative Officer and
Executive Vice President
WLFI HOLDINGS, INC. as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Administrative Officer and
Executive Vice President
Each of the entities listed on Schedule A annexed hereto,
as a Guarantor
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chief Administrative Officer and
Executive Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, Individually
and as Administrative Agent
By: /s/ Xxxxxx Xxxxx
Title: Assistant General Manager
CIBC Inc., as a Lender
By: /s/ Xxxxxx Xxxxx
Title: Executive Director
Antares Capital Corporation, as a Lender
By: /s/ Antares Capital Corporation
Title: Senior Vice President
Xxxxxx Financial, Inc. , as a Lender
By: /s/ Xxxx X. Xxxxxx
Title: Duly Authorized Signatory
General Electric Capital Corporation, as a Lender
By: /s/ Xxxx X. Xxxxxx
Title: Duly Authorized Signatory
GMAC Commercial Finance LLC , as a Lender
By: /s/ GMAC Commercial Finance LLC
Title: Director
Barclays Bank PLC, as a Lender
By: /s/ Barclays Bank PLC
Title: Director
INDOSUEZ CAPITAL FUNDING IIA< LIMITED , as a Lender
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
Ceres II Finance Ltd. , as a Lender
By: Patriarch Partners IX, LLC, Its Managing Agent
BY:/s/ Xxxx Xxxxxx
Title: Manager
GSC Partners CDO Fund IV Limited, as a Lender
GSC Partners Gemini Fund Limited, as a Lender
GSC Partners CDO Fund III Limited, as a Lender
GSC Partners CDO I Fund Limited, as a Lender
GSC Partners CDO II Fund Limited, as Lender
By: /s/ GSC Partners
Title: Managing Director
SCHEDULE A
SUBSIDIARY GUARANTORS
Loewenstein, Inc.
Winston Furniture Company of Alabama, Inc.
Texacraft, Inc.
Tropic Craft, Inc.
Winston Properties, Inc.
Pompeii Furniture Co., Inc.
Wabash Valley Manufacturing, Inc.
Charter Furniture Corporation
Lodging by Liberty, Inc. (f/k/a Lodging by Loewenstein, Inc.)
Southern Wood Products, Inc.
The Woodsmiths Company
BJCLW Holdings, Inc. (f/k/a Xxxxx Xxxxxx International, Inc.)
Xxxxx Xxxxxx Company
Casual Living Worldwide, Inc.
BJ Mexico IV, Inc.
BJ Mexico V, Inc.
BJIP, Inc.
BJI Employees Services, Inc.
