1
EXHIBIT 4.40
[Execution Version]
TWELFTH AMENDMENT
TO CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO CREDIT AGREEMENT, dated as of
November 30, 1995 (the "Twelfth Amendment"), is among Court Square Capital
Limited (formerly known as Citicorp Capital Investors Ltd.) (the "Lender") and
Consolidated Furniture Corporation (formerly known as Mohasco Corporation),
Furniture Comfort Corporation (formerly known as Mohasco Upholstered Furniture
Corporation) (on its behalf and on behalf of each of its Stratford and
Barcalounger operating units), SSC Corporation (formerly known as Super Sagless
Corporation) and Choice Seats Corporation (collectively, the "Borrowers").
BACKGROUND
A. The Lender and the Borrowers are parties to a Credit
Agreement dated as of September 22, 1989, as amended (the "Credit Agreement").
All capitalized terms used in this Twelfth Amendment and not otherwise defined
herein shall have the respective meanings specified in the Credit Agreement.
B. The Borrowers have requested that the Credit
Agreement be amended as set forth herein, and the Lender has agreed, subject to
the terms and conditions of this Twelfth Amendment, to such amendment.
TERMS
In consideration of the mutual covenants and agreements
contained herein, and intending to be legally bound, the Lender and the
Borrowers hereby agree as follows:
Section 1 - Overadvance Amount.
The definition of "Overadvance Amount" in Section 6.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Overadvance Amount" means $148,500,000 during the
fourth fiscal quarter of 1995 and thereafter.
Section 2 - Revolving Credit Maturity Date.
The definition of "Revolving Credit Maturity Date" in Section
6.1 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Revolving Credit Maturity Date" means January 2,
1997, when the Revolving Credit Note shall be due and payable
in full.
2
Section 3 - Conditions to Effectiveness.
This Twelfth Amendment shall be effective when, and only when,
the Lender shall have received counterparts of this Twelfth Amendment executed
by each of the Borrowers and copies of such approvals, opinions or documents as
the Lender may reasonably request.
Section 4 - Representations and Warranties.
The Borrowers hereby jointly and severally represent and
warrant to the Lender that the execution, delivery and performance by each of
the Borrowers of this Twelfth Amendment:
(a) are within each of the Borrower's respective
corporate powers;
(b) have been duly authorized by all necessary
corporate actions of each of the Borrowers;
(c) do not and will not:
(i) violate any requirement of law;
(ii) conflict with or result in the
breach of, or constitute a default under, any indenture, mortgage,
deed of trust, lease, agreement or other instrument binding on or
affecting any of the Borrowers; or
(iii) require the consent or approval of,
authorization by or notice to or filing or registration with any
governmental authority or other person other than those which have
been obtained and copies of which have been delivered to the Lender,
each of which is in full force and effect.
Section 5 - Miscellaneous.
(a) The Credit Agreement, as amended hereby,
shall be binding upon and shall inure to the benefit of the Lender and
the Borrowers and their respective successors and assigns.
(b) This Twelfth Amendment may be executed in any
number of counterparts, each counterpart constituting an original but
altogether one and the same instrument and contract.
(c) This Twelfth Amendment shall be construed in
connection with and as part of the Credit Agreement, and all terms,
conditions and covenants contained in the Credit
3
Agreement except as herein modified shall remain in full force and
effect.
(d) Any and all notices, requests, certificates
and other instruments executed and delivered after the execution and
delivery of this Twelfth Amendment may refer to the "Credit Agreement
dated as of September 22, 1989" without making specific reference to
the Twelfth Amendment, but nevertheless all such references shall be
deemed to include this Twelfth Amendment unless the context shall
otherwise require.
[SIGNATURE PAGES FOLLOW]
- 3 -
4
IN WITNESS WHEREOF, the Lender and the Borrowers have caused
this instrument to be executed and delivered by their duly authorized officers
as of the date and year first above written.
COURT SQUARE CAPITAL LIMITED
By: /s/ M. SALEEM MUQADDAM
-----------------------------
M. Saleem Muqaddam
Vice President
CONSOLIDATED FURNITURE CORPORATION
By: /s/ JOHN B. SGANGA
-----------------------------
John B. Sganga
Executive Vice President,
Chief Financial Officer,
Treasurer and Controller
FURNITURE COMFORT CORPORATION
By: /s/ JOHN B. SGANGA
-----------------------------
John B. Sganga
Executive Vice President,
Treasurer and Secretary
SSC CORPORATION
By: /s/ JOHN B. SGANGA
-----------------------------
John B. Sganga
Executive Vice President,
Treasurer and Secretary
CHOICE SEATS CORPORATION
By: /s/ JOHN B. SGANGA
-----------------------------
John B. Sganga
Executive Vice President,
Treasurer and Secretary
- 4 -
5
WAIVER
WAIVER dated as of November 29, 1995 ("Waiver") to the Credit
Agreement dated as of September 22, 1989, as amended (the "Credit Agreement"),
among Court Square Capital Limited (formerly known as Citicorp Capital
Investors Ltd.) (the "Lander") and Consolidated Furniture Corporation,
Furniture Comfort Corporation (on its behalf and on behalf of each of its
Stratford and Barcalounger operating units), SSC Corporation and Choice Seats
Corporation (collectively, the "Borrowers"). Terms used herein and not
otherwise defined herein shall have the meanings given such terms in the Credit
Agreement.
The Lander hereby agrees to waive compliance by Borrowers with
respect to (i) the covenants set forth in Section 4.1.1 and Section 4.1.6 of
the Credit Agreement for the quarters ended June 30, 1995, September 30, 1995
and December 31, 1995 and (ii) the covenant set forth in Section 4.1.5 of the
Credit Agreement for each of the months of June through December of Fiscal
Year 1995.
Except as expressly waived hereby, the Credit Agreement shall
continue in full force and effect in accordance with the provisions thereof on
the date hereof.
IN WITNESS WHEREOF, the Lender has caused this Waiver to be
executed by its duly authorized officer as of the date first written above.
COURT SQUARE CAPITAL LIMITED
By: /s/ M. SALEEM MUQADDAM
-------------------------------
Name: M. Saleem Muqaddam
Title: Vice President
Acknowledged:
CONSOLIDATED FURNITURE CORPORATION
FURNITURE COMFORT CORPORATION
SSC CORPORATION
CHOICE SEATS CORPORATION
By: /s/ JOHN B. SGANGA
------------------------------
Name: John B. Sganga
Title: Vice President
Treasurer and Secretary