Exihibit 10
AMENDMENT AND CONSENT NO. 3
This AMENDMENT AND CONSENT NO. 3, dated as of August 17, 2005 ("Amendment"), is
entered into by and among X'XXXXXXXX INDUSTRIES, INC., a Delaware corporation ("OSI"),
X'XXXXXXXX FURNITURE FACTORY OUTLET, INC., a Missouri corporation ("OSF"),
X'XXXXXXXX INDUSTRIES - VIRGINIA, INC., a Virginia corporation ("OSV" and together with OSF
and OSV, each a "Borrower" and collectively and jointly and severally, the "Borrowers"), X'XXXXXXXX
INDUSTRIES HOLDINGS, INC., a Delaware corporation ("Holdings"), the persons designated as
"Lenders" on the signature pages hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, as agent (the "Agent").
WHEREAS, Borrowers, Holdings, the Lenders (as defined therein) and Agent are party to the
Credit Agreement, dated as of September 29, 2003, as amended by Amendment No. 1 thereto, dated as of
October 29, 2003, and Amendment and Consent No. 2, dated as of May 5, 2004 (including all annexes,
exhibits and schedules thereto, the "Credit Agreement"; all capitalized terms defined in the Credit
Agreement and not otherwise defined herein have the meanings assigned to them in the Credit Agreement
or in Annex A thereto);
WHEREAS, Borrowers and Requisite Lenders, subject to Section 3 hereof, wish to amend the
Credit Agreement in the manner set forth below;
WHEREAS, OSI, OSF and the Agent wish to allow for the commencement of the "Activation
Period" under and as defined in certain Collateral Documents entered into with respect to certain
Accounts and deposit accounts of OSI and OSF;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, Borrowers, Credit Parties, Requisite Lenders and Agent agree as follows:
SECTION 1.
AMENDMENT
Subject to the satisfaction of the conditions to effectiveness referred to in Section 3 hereof:
(a) Section 1.2(a) of the Credit Agreement is hereby amended by deleting
the last two lines thereof and replacing them with the following:
"Applicable Revolver Index Margin 3.0%
Applicable Revolver LIBOR Margin 4.5%".
(b) Section 1.2(e) of the Credit Agreement is hereby amended by adding the
following sentence to the end of Section 1.2(e):
"Notwithstanding anything to the contrary contained herein, no Loan may be made or
converted into a LIBOR Loan after September 13, 2005.
(c) Section 1.3(g) of the Credit Agreement is hereby amended by adding at the
end thereof a new sentence to read as follows:
"Without limiting in any way the fees and expenses to which Agent is entitled
hereunder, Borrower acknowledges that Agent will be retaining a financial advisor to
assist with the review of the Borrowing Base Certificates and supporting detail, the
review of the variance reports referenced in Section 4.9(d)(vi) of this Agreement, the
review of the restructuring plan and corresponding cash flow forecasts and Projections
described in Section 2.15, the monitoring of the implementation of such restructuring
plan, and any other any other assistance that Agent may request from such financial
advisor related to Borrowers' performance under the Credit Agreement. Borrower
agrees to pay all fees and expenses incurred by Agent as a result of Agent's retention of
such financial advisor."
(d) Section 1.3 of the Credit Agreement is hereby amended by inserting at
the end thereof a new Section 1.3(h) to read as follows:
"(h) Amendment Fee. As compensation for the amendments made to the Credit
Agreement by Amendment and Consent No. 3 to the Credit Agreement, Borrowers shall
be obligated to pay an "Amendment Fee" in the amount of $50,000. The Amendment
Fee shall be fully earned by the Revolving Lenders upon the execution of the
Amendment and immediately upon the execution of the Amendment shall be paid by
Borrowers to Agent, for the benefit of the Revolving Lenders.
(e) Section 1.7(i) of the Credit Agreement is hereby amended and restated in
its entirety as follows:
Accounts that are obligations of an Account Debtor located in a foreign country
other than Canada unless (1) payment thereof is assured by a letter of credit assigned
with the consent of the issuer and delivered to Agent, satisfactory as to form, amount
and issuer or (2) payment thereof is insured under a credit insurance policy which has
been assigned to Agent with the consent of the issuer and which is in form, content,
amount and issuer satisfactory to Agent in all respects; provided, however, that the
amount of such Accounts which may be excepted from Ineligible Accounts under
subsection (2) hereof (a) may not exceed $1,000,000 in the aggregate, and (b) may not
exceed an amount equal to the face amount of the credit insurance policy less any
applicable deductible(s) or coinsurance; and provided further, that no such Accounts
shall be excepted from Ineligible Accounts pursuant to subsection (2) hereof if the
Borrowers are not in full compliance with the terms of the credit insurance policy at
any time they request that such Accounts be excepted from Ineligible Accounts, and
Borrowers' submission of any Borrowing Base Certificate that excepts such Accounts
from Ineligible Accounts pursuant to subsection (2) hereof shall constitute a
representation and warranty by Borrowers that Borrowers are in full compliance with
the terms of such credit insurance policy.
(f) Section 2.10 of the Credit Agreement is hereby amended by adding the
following at the end of such section:
"Notwithstanding anything to the contrary contained herein, no later than Five (5)
Business Days following the Amendment Effective Date, Borrowers shall have received,
and shall have provided to Agent, a signed consent, in a form acceptable to Agent, from
all banks or other financial institutions with which the Borrowers maintain an account
that is subject to a Blocked Account Agreement indicating that such bank consents to the
commencement of the Activation Period upon notice from Agent regardless of whether or
not a Default or Event of Default has occurred or is continuing at the time that Agent
provides such notice of commencement of the Activation Period. With respect to (1)
account number 003481045018 maintained by Borrowers with Bank of America, N.A.
and (2) account number 0000000 maintained by Borrowers with Royal Bank of Canada,
subject to the right of Agent to send a notice commencing an Activation Period for such
accounts, Borrowers shall be permitted to keep an amount not to exceed $600,000 in such
accounts, and if the amount deposited in such accounts as of the close of any Business
Day exceeds $600,000 in the aggregate, then on the following Business Day, Borrowers
shall transfer the amount of such excess over $600,000 into any account other than the
foregoing accounts that is also subject to a Blocked Account Agreement."
(g) Section 2 of the Credit Agreement is hereby amended by inserting at the
end thereof new Sections 2.14 and 2.15 to read as follows:
"2.14. [reserved].
2.15 Restructuring Plan. Borrowers shall take the following actions regarding the
development of a comprehensive restructuring plan:
(a) At the earlier of (i) the date such plan is provided to holders of the Senior
Notes or (ii) September 2, 2005, Borrower Representative shall provide to Agent, a
preliminary plan (the "Preliminary Plan") that provides for either (i) the
restructuring of the Indebtedness, obligations and equity of the Credit Parties, in
which event the Preliminary Plan must be in form and substance satisfactory to
Agent and Requisite Lenders in all respects or (ii) the payment in full of all
Obligations under the Credit Agreement, in which event the terms and conditions
of the Preliminary Plan that impact Agent or Lenders must be in form and
substance satisfactory to Agent and Requisite Lenders.
(b) Borrowers shall arrange for a conference call to be held no later than
September 12, 2005 to inform Agent of the preliminary feedback it receives from
the holders of the Senior Notes regarding the Preliminary Plan.
(c) Not later than October 3, 2005, the Borrowers shall have received, and
shall have provided to Agent, a final plan (the "Final Plan") that has either been
agreed upon by the holders of the Senior Notes or may be accomplished by
Borrowers without such agreement by the holders of the Senior Notes and which
provides for either (i) the restructuring of the Indebtedness, obligations and equity
of the Credit Parties, in which event the Final Plan must be in form and substance
satisfactory to Agent and Requisite Lenders in all respects or (ii) the payment in
full of all Obligations under the Credit Agreement, in which event the terms and
conditions of the Final Plan that impact Agent or Lenders must be in form and
substance satisfactory to Agent and Requisite Lenders.
(d) The Preliminary Plan shall at least contain weekly cash flow forecasts
together with an explanation of the key assumptions relied upon in the preparation
of such cash flow forecasts. The Final Plan shall at least contain weekly cash flow
forecasts and Projections together with an explanation of the key assumptions
relied upon in the preparation of such cash flow forecasts and Projections. In the
event the Preliminary Plan or Final Plan provides for the restructuring of the
Indebtedness, obligations and equity of the Credit Parties, the weekly cash flow
forecasts, Projections (in the case of the Final Plan), and explanation of key
assumptions required by this subsection must be in form and substance satisfactory
to Agent and Requisite Lenders in all respects. In the event the Preliminary Plan or
Final Plan provides for the payment in full of all Obligations under the Credit
Agreement, then to the extent Agent deems it necessary to review the weekly cash
flow forecasts, Projections (in the case of the Final Plan), and explanation of key
assumptions required by this subsection to evaluate the terms and conditions of the
Preliminary Plan or Final Plan affecting the Agent or Lenders, then the weekly cash
flow forecasts, Projections, and explanation of key assumptions required by this
subsection must be in form and substance satisfactory to Agent and Requisite
Lenders in all respects."
(h) Section 3 of the Credit Agreement is hereby amended by inserting at the
end thereof a new Section 3.21 to read as follows:
"3.21. Compliance with Budget. Borrowers shall not cause, and shall not
cause or permit their Subsidiaries to cause, the amount of the outstanding Loans under
the Credit Agreement, as determined based on the amount of outstanding Loans as of
5:00 p.m. (EST) on Friday of each calendar week following the Amendment Effective
Date, to exceed by more than $650,000 the amount of such Loans as projected in the
Budget for Friday of such calendar week.".
(i) Section 4.9(a)(i) of the Credit Agreement is hereby amended by inserting
at the end thereof the following:
"Notwithstanding the foregoing, the monthly financial reports required by this section
for the month of June, 2005 shall be delivered by Borrower Representative no later
than August 19, 2005. All subsequent monthly financial reports required by this section
shall be provided by Borrower Representative as soon as available and in any event
within thirty (30) days after the end of each month as provided hereinabove."
(j) Section 4.9(d)(i)(A) of the Credit Agreement is hereby amended and
restated in its entirety as follows: "Omitted;".
(k) Section 4.9(d) of the Credit Agreement is hereby amended by inserting at
the end thereof new Sections 4.9(d)(v), 4.9(d)(vi), 4.9(d)(vii), 4.9(d)(viii), and 4.9(d)(ix)
to read as follows:
"(v) To Agent, upon its request, and in any event no less frequently than noon New
York time on each day that is three (3) Business Days after the end of each calendar
week, a Borrowing Base Certificate with respect to each Borrower, accompanied by such
supporting detail and documentation as shall be requested by Agent in its reasonable
discretion (in substantially the same form as Exhibits 4.9(d)(i), 4.9(d)(ii) and 4.9(d)(iii)
(each, a "Borrowing Base Certificate")), which shall be prepared by Borrowers as of the
last day of the immediately preceding calendar week; provided, however, in the event a
Borrowing Base Certificate is requested more frequently by Agent, such Borrowing Base
Certificate shall be prepared as of (i) the date of such request by Agent if such request is
made by Agent no later than 1:00 p.m. New York time, or (ii) the date that is one (1)
Business Day after the date of any such request if such request is made by Agent after
1:00 p.m. New York time, delivered three (3) Business Days thereafter.
(vi) No later than 5:00 p.m. New York time on each Tuesday following the
Amendment Effective Date, Borrower Representative shall provide a variance report, in a
form acceptable to Agent, comparing the actual amount of the Loans outstanding under
the Credit Agreement and the actual cash receipts and disbursements for the preceding
week with the projected amount of the Loans outstanding under the Credit Agreement
and the projected cash receipts and disbursements as projected in the Budget. Such
variance report shall contain an explanation for any such variance.
(vii) To Agent, upon its request, and in any event no less frequently than noon New
York time on each day that is ten (10) Business Days after the end of each calendar
month, an accounts receivable roll forward report, which shall be in the form specified by
Agent and prepared as of the last day of the preceding month.
(viii) To Agent, upon its request, and in any event no less frequently than noon New
York time on each day that is ten (10) Business Days after the end of each calendar
month, a report, in a form specified or approved by Agent and prepared as of the last day
of the preceding month, listing all accrued balances for customer programs or any other
offset to all current and future accounts receivable.
(ix) To the extent not previously provided by Borrowers to Agent pursuant to the
terms of the Credit Agreement, at the same time as Borrowers provide such information
to holders of its Senior Notes, or if such information has already been provided to holders
of its Senior Notes, then no later than the Amendment Effective Date, Borrowers shall
provide to Agent all financial information that Borrowers provide to certain of the
holders of its Senior Notes pursuant to Section 3(a) of the Forbearance Agreement. To
the extent not otherwise required by the Credit Agreement, at the same time as
Borrowers provide such information to holders of its Senior Notes, or if such information
has already been provided to holders of its Senior Notes, then no later than the
Amendment Effective Date, Borrowers shall further provide to Agent any information
provided to certain of the holders of its Senior Notes pursuant to Section 5(a) of the
Forbearance Agreement.".
(l) Section 4.9(f) of the Credit Agreement is hereby amended by inserting at
the end thereof the following:
"Notwithstanding the foregoing, Borrower Representative may satisfy the requirement
to deliver Projections otherwise required to be delivered on July 31, 2005 by delivering
Projections for Fiscal Year 2006, month by month, no later than August 19, 2005. All
subsequent Projections required by this section, including Projections for the then
current Fiscal Year and the forthcoming two (2) Fiscal Years, shall be provided no
later than July 31 for the then current Fiscal Year as provided hereinabove."
(m) Section 5 of the Credit Agreement is hereby amended by inserting at the
end thereof a new Section 5.21 to read as follows:
"5.21 Forbearance Agreement. As of the Amendment Effective Date, all conditions
precedent to the effectiveness of the Forbearance Agreement have been satisfied, the
Forbearance Agreement is in full force and effect, and Borrowers are in full
compliance with all of their obligations under the Forbearance Agreement."
(n) Section 5.11 of the Credit Agreement is hereby amended by inserting at
the end thereof a new Section 5.11(c) to read as follows:
"(c) No part of the proceeds of any Loan will be used to pay interest or fees (other than
professional fees payable under Section 5(b) of the Forbearance Agreement) on (i) the
Senior Notes or (ii) any Subordinated Debt without the prior written consent of the
Agent; provided, however, so long as (i) the Forbearance Agreement is in effect or is
extended at least two (2) Business Days prior to the termination of the forbearance period
thereunder and such extension is on terms acceptable to Agent in its reasonable
discretion, (ii) the Borrowers are in compliance with the Forbearance Agreement; (iii) no
action is taken by any holder of the Senior Notes or the Senior Notes Trustee that would
result in an Event of Default under Section 6.1(r) of this Agreement; and, (iv) no other
Default or Event of Default has occurred or is continuing under the Credit Agreement or
the Senior Notes, Agent and Lender agree to forbear from the enforcement of any Default
or Event of Default that would occur as a result of Borrowers' failure to pay such interest
on the Senior Notes, but such forbearance shall apply solely to a Default or Event of
Default that would occur as a result of Borrowers' failure to pay such interest on the
Senior Notes and shall not apply to any other Default or Event of Default."
(o) Section 6.1(c) of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"(c) Breach of Certain Provisions; Breach of Warranty. The failure of any Credit
Party to perform or comply with any term, condition, representation or warranty
contained in Section 2.2 relating to the Credit Parties' obligation to maintain insurance,
Section 2.3, Section 2.7, Section 2.10, Section 2.14, Section 2.15, Section 3, Section 4
or Section 5.11 of this Agreement, shall constitute an immediate Event of Default."
(p) Section 6.1 of the Credit Agreement is amended by inserting at the end
thereof new Sections 6.1(p), 6.1(q), and 6.1(r) to read as follows:
"(p) Breach of Forbearance Agreement. The failure of any Credit Party to
perform or comply with any term or condition of the Forbearance Agreement to the
extent not waived by the parties thereto; provided, however, the terms of any such
waiver must be acceptable to Agent in its reasonable discretion.
(q) Restriction of Trade Credit. The restriction of credit provided by any trade
vendor to a Borrower that would have an adverse impact upon a Borrower's ongoing
business operations or a Borrower's ability to comply with the Budget, in each case as
determined by Agent in its reasonable discretion.
(r) Action by Bondholder. The exercise of any right or remedy to enforce any
default under the Senior Notes by the Senior Notes Trustee or an individual holder of
the Senior Notes that is not a party to the Forbearance Agreement (a "Non-Forbearing
Bondholder) shall constitute an immediate Event of Default under this Agreement.
Without limiting the foregoing and by way of illustration only, it shall be an immediate
Event of Default under this section if the Senior Notes Trustee or a Non-Forbearing
Bondholder provides notice of acceleration of the Senior Notes or files any legal or
equitable action to exercise any right or remedy arising from any default arising under
the Senior Notes."
(q) Section 7.2(a) of the Credit Agreement is hereby amended by inserting at
the end thereof the following: "provided, however, that, in the case of any Advance
requested to be made on a Funding Date that would occur on or between the Amendment
Effective Date and September 30, 2005, the foregoing requirement shall not apply to any
representation and warranty set forth in Sections 5.2 or 5.9;".
(r) Annex A to the Credit Agreement is hereby amended by adding thereto
the following definition of "Activation Period" in appropriate alphabetical order:
"Activation Period" shall have the meaning ascribed to such term in Section 2
of that certain Amendment and Consent No. 3 related to this Agreement.
(s) Annex A to the Credit Agreement is hereby amended by adding thereto
the following definition of "Amendment Effective Date" in appropriate alphabetical
order:
"Amendment Effective Date" means the "Effective Date" under and as defined
in that certain Amendment and Consent No. 3 related to this Agreement.
(t) Annex A to the Credit Agreement is hereby amended by adding thereto
the following definition of "Blocked Account Agreement" in appropriate alphabetical
order:
"Blocked Account Agreement" shall have the meaning ascribed to such term in
Section 2 of that certain Amendment and Consent No. 3 related to this Agreement.
(u) Annex A to the Credit Agreement is hereby amended by replacing the
definition of "Borrowing Availability" set forth therein with the following:
"Borrowing Availability" means as of any date of determination the lesser of
(i) the Maximum Amount less the Revolving Loan then outstanding (including, without
duplication, the outstanding Letter of Credit Obligations then outstanding), and (ii) the
Aggregate Borrowing Base plus during the period of August 1, 2005 to September 11,
2005, an amount equal to $1,750,000 and during the period of September 12, 2005 to
October 2, 2005, an amount equal to $2,000,000 and beginning on October 3, 2005, an
amount equal to $2,500,000 less the sum of (a) the Revolving Loan then outstanding
(including, without duplication, the outstanding balance of Letter of Credit Obligations
then outstanding), (b) a Reserve of $5,000,000 established on the Closing Date and (c)
additional Reserves required by the Agent in its reasonable credit judgment to the
extent not already deducted therefrom.
(v) Annex A to the Credit Agreement is hereby amended by adding thereto
the following definition of "Budget" in appropriate alphabetical order:
"Budget" shall mean the Budget attached to this Agreement as Exhibit A
covering twelve fiscal weeks beginning August 1, 2005.
(w) Annex A to the Credit Agreement is hereby amended by adding thereto
the following definition of "Forbearance Agreement" in appropriate alphabetical order:
"Forbearance Agreement" shall mean the Forbearance Agreement dated
August 12, 2005 by and among Borrowers, Holdings, GoldenTree Asset Management
L.P., and Mast Credit Opportunities I, (Master) Ltd..
(x) Annex A to the Credit Agreement is hereby amended by replacing the
definition of "LIBOR Period" set forth therein with the following:
""LIBOR Period" means, with respect to any LIBOR Loan, each period
commencing on a LIBOR Business Day selected by Borrower Representative pursuant to
the Agreement and ending thirty days thereafter; provided, that the foregoing provision
relating to LIBOR Periods is subject to the following:
(a) if any LIBOR Period would otherwise end on a day that is not a LIBOR
Business Day, such LIBOR Period shall be extended to the next succeeding LIBOR
Business Day unless the result of such extension would be to carry such LIBOR Period
into another calendar month in which event such LIBOR Period shall end on the
immediately preceding LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the date set forth
in clause (a) of the definition of "Commitment Termination Date" shall end two (2)
LIBOR Business Days prior to such date;
(c) any LIBOR Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such LIBOR Period) shall end on the last LIBOR Business
Day of a calendar month; and
(e) there shall be no more than 5 separate LIBOR Loans in existence at any
one time.".
(y) Schedule 1 to each of Exhibits 4.9(d)(i), 4.9(d)(ii) and 4.9(d)(iii) to the
Credit Agreement is hereby amended by deleting the following as an Ineligible Account:
Accounts that are obligations of an Account Debtor located in a foreign country
other than Canada unless payment thereof is assured by a letter of credit assigned with
the consent of the issuer and delivered to Agent, satisfactory as to form, amount and
issuer;
and inserting in lieu thereof the following:
Accounts that are obligations of an Account Debtor located in a foreign country
other than Canada unless (1) payment thereof is assured by a letter of credit assigned
with the consent of the issuer and delivered to Agent, satisfactory as to form, amount
and issuer or (2) payment thereof is insured under a credit insurance policy which has
been assigned to Agent with the consent of the issuer and which is in form, content,
amount and issuer satisfactory to Agent in all respects; provided, however, that the
amount of such Accounts which may be excepted from Ineligible Accounts under
subsection (2) hereof (a) may not exceed $1,000,000 in the aggregate, and (b) may not
exceed an amount equal to the face amount of the credit insurance policy less any
applicable deductible(s) or coinsurance; and provided further, that no such Accounts
shall be excepted from Ineligible Accounts pursuant to subsection (2) hereof if the
Borrowers are not in full compliance with the terms of the credit insurance policy at
any time they request that such Accounts be excepted from Ineligible Accounts, and
Borrowers' submission of any Borrowing Base Certificate that excepts such Accounts
from Ineligible Accounts pursuant to subsection (2) hereof shall constitute a
representation and warranty by Borrowers that Borrowers are in full compliance with
the terms of such credit insurance policy.
SECTION 2.
CONSENT
The Borrowers hereby consent to the delivery by Agent at any time or from time to time, and
regardless of whether or not at the time of delivery an Event of Default has occurred or is continuing, to
each depository bank party to a Blocked Account Agreement (as defined below) of notice stating that the
"Activation Period" as defined in each Blocked Account Agreement has commenced. "Blocked Account
Agreement" shall mean each of (i) that certain Blocked Account Agreement, made and entered into as of
October 28, 2003, by and among Bank of America, N.A., X'Xxxxxxxx Industries, Inc. and the Agent, (ii)
that certain Blocked Account Agreement, made and entered into as of October 23, 2003, by and among
Xxxxx Bank and Trust Company, X'Xxxxxxxx Furniture Factory Outlet, Inc. and the Agent, (iii) that
certain Blocked Account Agreement, made and entered into as of October 23, 2003, by and among Xxxxx
Bank and Trust Company, X'Xxxxxxxx Furniture Factory Outlet, Inc. and the Agent, and (iv) that certain
Blocked Accounts Agreement, made as of November 18, 2003, among X'Xxxxxxxx Industries, Inc.,
General Electric Capital Corporation and Royal Bank of Canada.
SECTION 3.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on the date (the "Effective Date") the following
conditions shall have been satisfied:
Agent shall have received one or more counterparts of this Amendment executed and delivered by
Borrowers, Holdings, Agent and the Requisite Lenders;
(a) Agent shall have received from the Borrowers, in immediately available
funds and without withholding or deduction of any kind, for the pro rata benefit of the
Lenders an amendment fee of $50,000 as required by Section 1.3(h);
(b) Counsel to Agent shall have received payment from the Borrowers of
all outstanding fees and expenses;
(c) Borrowers shall have provided to Agent the Borrowers' flash reports
for July, 2005; and,
(d) The representations and warranties of the Borrowers contained in this
Amendment shall be true and correct in all material respects.
SECTION 2.
LIMITATION ON SCOPE
Except as expressly amended hereby, all of the representations, warranties, terms, covenants and
conditions of the Loan Documents shall remain in full force and effect in accordance with their respective
terms. The amendment and consent set forth herein shall be limited precisely as provided for herein and
shall not be deemed to be a waiver of, amendment of, consent to or modification of any term or provision of
the Loan Documents or any other document or instrument referred to therein or of any transaction or further
or future action on the part of Borrowers or any other Credit Party requiring the consent of Agent or Lenders
except to the extent specifically provided for herein. Agent and Lenders have not and shall not be deemed to
have waived any of their respective rights and remedies against Borrowers or any other Credit Party for any
existing or future Defaults or Event of Default.
SECTION 3.
MISCELLANEOUS
Borrowers hereby represent and warrant as follows:
(i) This Amendment has been duly authorized and executed by Borrowers and each
other Credit Party, and the Credit Agreement, as amended by this Amendment, is the legal, valid
and binding obligation of Borrowers and each other Credit Party that is a party thereto,
enforceable in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, moratorium and similar laws affecting the rights of creditors in general;
and
(ii) Borrowers repeat and restate the representations and warranties of Borrowers
contained in the Credit Agreement (other than those set forth in Sections 5.2 and 5.9 thereof) as
of the date of this Amendment and as of the Effective Date, except to the extent such
representations and warranties relate to a specific date.
(b) This Amendment is being delivered in the State of New York.
(c) Borrowers and the other Credit Parties hereby ratify and confirm the
Credit Agreement as amended hereby, and agree that, as amended hereby, the Credit
Agreement remains in full force and effect.
(d) Borrowers and the other Credit Parties agree that all Loan Documents to
which each such Person is a party remain in full force and effect notwithstanding the
execution and delivery of this Amendment.
(e) This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an original,
but all of which counterparts together shall constitute but one and the same instrument.
(f) All references in the Loan Documents to the "Credit Agreement" and in
the Credit Agreement as amended hereby to "this Agreement," "hereof," "herein" or the
like shall mean and refer to the Credit Agreement as amended by this Amendment (as
well as by all subsequent waivers, amendments, restatements, modifications and
supplements thereto).
(g) Each of the following provisions of the Credit Agreement is hereby
incorporated herein by this reference with the same effect as though set forth in its
entirety herein, mutatis mutandis, and as if "this Agreement" in any such provision read
"this Amendment": Section 9.3 (Notices), Section 9.6, (Severability), Section 9.8
(Headings), Section 9.9 (Applicable Law), Section 9.12 (Construction), Section 9.15
(Waiver of Jury Trial) and Section 9.17 (Entire Agreement).
(h) Borrowers acknowledge that Agent, in the exercise of its reasonable
credit judgment, is excluding certain Accounts subject to offset from Eligible Accounts
pursuant to Section 1.7(t) of the Credit Agreement and that such excluded Accounts are
further described in a side letter dated August 17, 2005 by and among Borrowers and
Agent.
[SIGNATURE PAGE FOLLOWS]
WITNESS the due execution hereof by the respective duly authorized officers of the undersigned as of
the date first written above.
BORROWERS:
X'XXXXXXXX INDUSTRIES, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
X'XXXXXXXX FURNITURE FACTORY OUTLET, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
X'XXXXXXXX INDUSTRIES - VIRGINIA, INC.,
as a Borrower
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
CREDIT PARTIES:
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent and a Lender
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Duly Authorized Signature
