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Exhibit 4.46
LIEN SUBORDINATION AGREEMENT
THIS LIEN SUBORDINATION AGREEMENT ("Agreement"), made and entered into this
10th day of December, 1996, by and between COURT SQUARE CAPITAL LIMITED (f/k/a
Citicorp Capital Investors Ltd.), a Delaware corporation ("Subordinating
Creditor"); and CAPITAL FACTORS, INC., a Florida corporation ("Senior
Creditor");
WITNESSETH:
WHEREAS, pursuant to that certain Factoring Agreement, dated on or about
the date hereof (such Factoring Agreement, and all other agreements,
instruments and documents executed in connection therewith or pursuant thereto,
each as amended, modified, supplemented or restated from time to time, being
herein called the "Senior Creditor Factoring Agreement"), between The
Barcalounger Company, a division of Furniture Comfort Corporation (f/k/a Mohasco
Upholstered Furniture Corporation), a Delaware corporation ("Borrower") and
Senior Creditor, Senior Creditor has agreed to factor Borrower's accounts and
make loans and advances and extend other credit accommodations to Borrower,
secured by liens and security interests in certain of Borrower's assets, all
upon the terms and subject to the conditions contained therein;
WHEREAS, pursuant to that certain Credit Agreement, dated as of September
22, 1989 (such Credit Agreement, and all other agreements, notes, instruments,
guaranties and other documents executed in connection therewith or pursuant
thereto, each as amended, modified, supplemented or restated from time to time,
being herein called the "Subordinated Creditor Documents"), among Borrower, its
parent and affiliated companies, and Subordinated Creditor, Subordinated
Creditor has agreed to make loans and advances and extend other creditor
accommodations to Borrower and its parent and affiliated companies, secured by
liens and security interests in substantially all of the assets of Borrower and
its parent and affiliated companies, all upon the terms and subject to the
conditions contained therein; and
WHEREAS, Senior Creditor, as a condition precedent to factoring Borrower's
accounts and making loans and advances and extending the other credit
accommodations to Borrower contemplated by the Senior Creditor Factoring
Agreement, requires the execution of this Agreement by Subordinated Creditor
establishing the relative priorities of Subordinated Creditor's and Senior
Creditor's security interests in and liens upon the assets of Borrower;
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable considerations, the receipt and sufficiency of which are
hereby expressly acknowledged, and in order to induce Senior Creditor to enter
into the Senior Creditor Factoring Agreement, and make loans and advances and
extend other credit accommodations to Borrower thereunder, the parties hereto,
intending to be legally bound hereby, do hereby agree as follows:
1. Certain Definitions. In addition to the terms defined in the recitals
hereto, the following terms shall have the following meanings for the purposes
of this Agreement:
"Liens" - the liens and security interests with respect to the Senior
Creditor Collateral or any portion thereof granted by Borrower to Senior
Creditor or Subordinated Creditor, respectively.
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"Senior Creditor Collateral" - all of the following assets, properties
and interests in property of Borrower, whether now existing or hereafter
acquired or arising, wherever located:
(a) All accounts, contract rights and general intangibles;
(b) All other obligations owing to Borrower for the payment of
money arising out of the sale of goods, all security and guarantees
therefor, and all of Borrower's rights to the goods and property
represented thereby;
(c) All goods rejected or returned by any customer of Borrower;
(d) All reserves, credit balances, sums of money at any time to
Borrower's account with Senior Creditor and any of Borrower's
property at any time in the possession of Senior Creditor;
(e) All of Borrower's books and records relating to the
foregoing; and
(f) All proceeds and products of any of the foregoing.
"Senior Creditor Indebtedness" - All indebtedness, obligations and
liabilities of Borrower (including, without limitation, principal,
interest, fees, costs, commissions, expenses and attorneys' fees), now
or hereafter owed by Borrower to Senior Creditor under or secured by the
Senior Creditor Factoring Agreement, and any replacements, renewals,
extensions, refundings or refinancings thereof.
2. Priority of Liens and Subordination. Senior Creditor and Subordinated
Creditor agree that at all times, whether before, after or during the pendency
of any bankruptcy, reorganization or other insolvency proceeding, and
notwithstanding the priorities which would ordinarily result from the order of
granting or attaching of any Lien, or the order of filing or recording of any
financing statements or any of the Senior Creditor Factoring Agreement or the
Subordinated Creditor Documents:
(a) the Lien in favor of Senior Creditor with respect to the Senior
Creditor Collateral arising pursuant to the Senior Creditor Factoring
Agreement shall be superior to the Lien of Subordinated Creditor in the
Senior Creditor Collateral arising pursuant to the Subordinated Creditor
Documents, and the Lien of Subordinated Creditor in the Senior Creditor
Collateral arising pursuant to the Subordinated Creditor Documents shall be
junior and subordinate to the Lien of Senior Creditor therein; and
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(b) The Lien in favor of Subordinated Creditor with respect to any
inventory of the Borrower which does not constitute any portion of the
Senior Creditor Collateral shall be superior to any Lien of Senior Creditor
therein, and the Lien, if any, of Senior Creditor in any inventory of the
Borrower which does not constitute any portion of the Senior Creditor
Collateral shall be junior and subordinate to the Lien of Subordinated
Creditor therein.
3. Term. This Agreement shall constitute a continuing agreement between
Senior Creditor and Subordinated Creditor, and Senior Creditor may continue
without notice to Subordinated Creditor to lend monies, extend credit and make
other credit accommodations to or for the account of Borrower. This Agreement
shall be irrevocable by Subordinated Creditor until all of the Senior Creditor
Indebtedness shall have been paid and satisfied in full and the Senior Creditor
Factoring Agreement has been terminated in writing.
4. Additional Agreements. Senior Creditor, at any time and from time to
time, may enter into such agreement or agreements with Borrower, including
amendments or modifications to the Senior Creditor Factoring Agreement, as
Senior Creditor may deem proper, extending the time of payment of or renewing or
otherwise altering the terms of all or any of the Senior Creditor Indebtedness,
and may exchange, sell, release, surrender or otherwise deal with any of the
Senior Creditor Collateral without any in any way impairing or affecting this
Agreement.
5. Consent of Subordinated Creditor. Subordinated Creditor does hereby
consent to the grant of a Lien in the Senior Creditor Collateral by Borrower to
Senior Creditor pursuant to the Senior Creditor Factoring Agreement and the
incurring by Borrower of the Senior Creditor Indebtedness thereunder, and agrees
that such actions do not and will not constitute a default or an event of
default under the Subordinated Creditor Documents, notwithstanding any term or
provision thereof to the contrary.
6. Notices. Any notice, demand or other communication required or permitted
under the terms of this Agreement shall be in writing and shall be made by
certified or registered mail, return receipt requested, or by electronic
transmitter or overnight air service, and shall be deemed to have been received
by the addressee three (3) business days after mailing, if sent by certified or
registered mail, and upon receipt, if sent by electronic transmitter or
overnight air courier. Notices shall be addressed as follows:
(a) If to Senior Creditor: Capital Factors, Inc.
1799 West Oakland Park Boulevard
Ft. Lauderdale, Florida
Attn: President
Facsimile No. 305-497-3136
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(b) If to Subordinated Court Square Capital Limited
Creditor: 399 Park Avenue, 14th Floor
Zone 4
New York, New York 10022
Attn: President
Facsimile No. 212-888-2940
or at such other address as either party may designate by notice to the other
party in accordance with the provisions hereof.
7. Governing Law. This Agreement shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws and
decisions of the State of Florida.
8. Parties. This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. The term
"Borrower" as used herein shall also refer to the successors and assigns of
Borrower, including, without limitation, a receiver, trustee, custodian or
debtor-in-possession.
9. Section Titles. The section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement among the parties hereto.
10. Authority. Each party represents and warrants to each other party that
it has the authority to enter into this Agreement and that the person signing
for such party is authorized and directed to do so.
11. Severability. The provisions of this Agreement are independent of and
inseparable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable, it is the intent of the parties that such
invalidity or unenforceability shall not affect the validity or enforceability
of any other provision hereof, and that this Agreement shall be construed as if
such invalid or unenforceable provision had never been contained herein.
12. Counterparts. This Agreement may be executed by the parties hereto in
one or more counterparts, each of which when so executed shall be an original.
When taken together, such counterparts shall constitute but one and the same
document.
13. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO
OR CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
CAPITAL FACTORS, INC.
By: [SIG]
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Title: Vice President
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COURT SQUARE CAPITAL LIMITED (f/k/a
Citicorp Capital Investors Ltd.)
By: [SIG]
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Title: VP
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ACKNOWLEDGMENT AND AGREEMENT
OF BORROWER
The undersigned, The Barcalounger Company, a division of Furniture Comfort
Corporation (f/k/a Mohasco Upholstered Furniture Corporation) hereby accepts and
acknowledges receipt of a copy of the foregoing Lien Subordination Agreement and
consents to and agrees to bound by all of the terms and provisions thereof.
IN WITNESS WHEREOF, the undersigned has caused this acknowledgment and
agreement to be duly executed on the day and year first above written.
THE BARCALOUNGER COMPANY, a division
of Furniture Comfort Corporation
(f/k/a Mohasco Upholstered
Furniture Corporation)
By: [SIG]
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Title: Vice President
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