EXHIBIT 10.52
FIFTH AMENDMENT TO POSTPETITION CREDIT AGREEMENT
THIS FIFTH AMENDMENT, dated as of May 14, 1998 to the POSTPETITION
CREDIT AGREEMENT dated as of September 5, 1997 (the "Credit Agreement"), is
among XXXXXX FURNITURE INCORPORATED, a Delaware corporation and a debtor and
debtor in possession ("LFI"), XXXXXX FURNITURE COMPANY, a Florida corporation
and a debtor in possession ("LFC"), XXXXXX FURNITURE REALTY CORPORATION, a
Florida corporation and a debtor and debtor in possession ("LFR"), XXXXXX
SHOPPING SERVICE, INC., a Florida corporation and a debtor and debtor in
possession ("LSS"), XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a Colorado
corporation and a debtor and debtor in possession ("LFC Midwest"), XXXXXX
FURNITURE COMPANY OF THE PACIFIC, INC., a California corporation and a debtor
and debtor in possession ("LFC Pacific"), XXXXXX FURNITURE COMPANY OF
WASHINGTON, INC., a Washington corporation and a debtor and debtor in possession
("LFC Washington") XXXXXX FURNITURE COMPANY OF THE MIDWEST REALTY, INC., a
Colorado corporation and a debtor and debtor in possession ("LFC Midwest
Realty"), XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY, INC., a California
corporation and a debtor and a debtor in possession ("LFC Pacific Realty"),
XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY, INC., a Washington corporation
and debtor and a debtor in possession ("LFC Washington Realty"), XXXX X. XXXXX
COMPANY, an Illinois corporation and a debtor and debtor in possession ("JMS")
and XXXX X. XXXXX REALTY COMPANY an Illinois corporation and a debtor and debtor
in possession ("JMS Realty") (LFI, LFC, LFR, LSS, LFC Midwest, LFC Pacific, LFC
Washington, LFC Midwest Realty, LFC Pacific Realty, LFC Washington Realty, JMS
and JMS Realty sometimes hereinafter individually called a "Borrower" and
collectively called the "Borrowers"); each Revolving Lender and Term Lender
signatories hereto (collectively the "Lenders"), and BT COMMERCIAL CORPORATION,
a Delaware corporation (in its individual capacity, hereinafter called "BTCC"),
acting in its capacity as agent for the Lenders (in such capacity, together with
its successors in such capacity, hereinafter called the "Agent"). Capitalized
terms used in this Amendment and not otherwise defined have the meanings
assigned such terms in the Credit Agreement.
PRELIMINARY STATEMENTS:
A. The Borrowers and the Lenders are parties to the Credit Agreement.
B. The Borrowers have requested the Lenders and the Agent to amend the
Credit Agreement in certain respects.
C. The Lenders and the Agent have agreed to amend the Credit Agreement
as requested on the terms and conditions set forth in this
Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Amendment, the Borrowers, the Lenders and the Agent
hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 SECTION 1.1 of the Credit Agreement is hereby amended by
adding the following language immediately before the parenthetical appearing in
clause (c) of the definition of "EBITDA":
", excluding non-cash charges consisting of a writedown of inventory in
the amount of $6,124,000 in the fiscal quarter ending March 31, 1998."
2. CONDITIONS PRECEDENT.
This Amendment shall become effective upon satisfaction of the
following condition:
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The Agent shall have received ten (10) copies of this
Amendment, duly executed by the LFC Funds Administrator, each of the Borrowers,
and each of the Lenders.
3. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers hereby represents and warrants to each of the
Agents and Lenders that, after giving effect to this Amendment:
(a) all representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects on and as of the date of this Amendment, in each case
as if then made, other than representations and warranties that
expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such
earlier date);
(b) no Default or Event or Default has occurred which has not
been waived (or, in the case of an Event of Default, cured) pursuant to
the terms of the Credit Agreement;
(c) this Amendment, and the Credit Agreement as amended
hereby, constitute legal, valid and binding obligations of the LFC
Funds Administrator and each of the Borrowers and are enforceable
against such Persons in accordance with their respective terms; and
(d) the execution and delivery by the LFC Funds Administrator
and each of the Borrowers of this Amendment does not require the
consent or approval of any Person other than the Bankruptcy Court,
except such consents and approvals as shall have been obtained.
4. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
4.1 Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in each of the
other Credit Documents to the "Credit Agreement" shall mean and be a
reference to the Credit Agreement as amended hereby.
4.2 Except as expressly set forth herein, (i) the execution
and delivery of this Amendment shall in no way affect any of the
respective rights, powers or remedies of the Agent or any of the
Lenders with respect to any Event or Default nor constitute a waiver of
any provision of the Credit Agreement or any of the other Credit
Documents and (ii) all of the terms and conditions of the Credit
Agreement, the other Credit Documents and all other documents,
instruments, amendments and agreements executed and/or delivered by the
Borrowers and/or the LFC Funds Administrator pursuant thereto or in
connection therewith shall remain in full force and effect and are
hereby ratified and confirmed in all respects. The execution and
delivery of this Amendment by the Agent and each of the Lenders shall
in no way obligate the Agent or any of the Lenders at any time
hereafter to consent to any other amendment or modification of any term
or provision of the Credit Agreement or any of the other Credit
Documents, whether of a similar or different nature.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS AND
DECISIONS OF THE STATE OF NEW YORK.
6. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
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7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
set forth above.
LFC FUNDS ADMINISTRATOR:
XXXXXX FURNITURE CORPORATION, a Florida corporation, in
its capacity as LFC Funds Administrator
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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BORROWERS:
XXXXXX FURNITURE CORPORATION, a Florida corporation, in
its individual capacity and in its capacity as LFC
Funds Administrator
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE INCORPORATED, a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Treasurer
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XXXXXX FURNITURE REALTY CORPORATION, a Florida
corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX SHOPPING SERVICE, INC., a Florida corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF THE MIDWEST, INC., a
Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF THE PACIFIC, INC., a
California corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF WASHINGTON, INC., a
Washington corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF THE MIDWEST REALTY, INC., a
Colorado corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF THE PACIFIC REALTY, INC., a
California corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FURNITURE COMPANY OF WASHINGTON REALTY, INC., a
Washington corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXX X. XXXXX COMPANY, an Illinois corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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XXXX X. XXXXX REALTY COMPANY, an Illinois corporation
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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AGENT:
BT COMMERCIAL CORPORATION, in its capacity as Agent
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Sr. Vice President
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REVOLVING LENDERS:
BT COMMERCIAL CORPORATION, a Delaware corporation in
its respective capacities as Revolving Lender and
Collateral Agent
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
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Title: Sr. Vice President
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CARGILL FINANCIAL SERVICES CORPORATION, in its capacity
as Revolving Lender
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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FINOVA CAPITAL CORPORATION, in its capacity as
Revolving Lender
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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Title: Assistant Vice President
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XXXXXX FINANCIAL, INC., in its capacity as Revolving
Lender
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Relationship Manager
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LASALLE NATIONAL BANK, in its capacity as Revolving
Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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CONGRESS FINANCIAL CORPORATION (CENTRAL), in its
capacity as Revolving Lender
By: /s/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
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Title: Vice President
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TRANSAMERICA BUSINESS CREDIT CORPORATION, in its
capacity as Revolving Lender
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
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Title: Senior Vice President
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SILVER OAK CAPITAL L.L.C., in its capacity as Revolving
Lender
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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NATIONSCREDIT COMMERCIAL CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING DIVISION; in its
capacity as Revolving Lender
By: /s/ XXXXX XXXXX XXXXXXX
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Name: Xxxxx Xxxxx Xxxxxxx
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Title: V.P./Sr. Credit Officer
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TERM LENDER:
SILVER OAK CAPITAL L.L.C., in its capacity as Term
Lender
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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