EXHIBIT 10.1
DEBT RESTRUCTURING AGREEMENT
THIS DEBT RESTRUCTURING AGREEMENT ("Agreement") is entered
into this 24th day of December 2001 by and among Interiors Inc. ("Interiors" or
the "Borrower"), Petals, Inc. ("Petals"), TBD Three, Inc., f/k/a Stylecraft
Lamps, Inc. ("Stylecraft"), Habitat Solutions, Inc. ("Habitat") and Concepts 4,
Inc. ("Concepts") and Limeridge LLC ("Limeridge") and The Endeavour Capital
Fund, S.A. and The Endeavour Capital Investment Fund, S.A. (collectively,
"Endeavour"). Limeridge and Endeavour are collectively referred to herein as the
"Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to (a) Secured Convertible Note Purchase
Agreement (the "Limeridge Note Purchase Agreement"), (b) Registration Rights
Agreement (the "Limeridge Registration Agreement") and (c) a Security Agreement
(the "Limeridge Security Agreement"), each dated September 30, 1999 between
Interiors and Limeridge, Limeridge agreed to loan monies to Interiors; and
WHEREAS, in accordance therewith, Limeridge provided funds to
Interiors and Interiors executed a Secured Convertible Promissory Note due
September 29, 2004 in the amount of $13,540,626 in favor of Limeridge (the
"Limeridge Note"); the Limeridge Note Purchase Agreement, the Limeridge
Registration Agreements, the Limeridge Security Agreement and the Limeridge Note
collectively referred to as the "Limeridge Loan Documents"); and
WHEREAS, pursuant to (a) Secured Convertible Note Purchase
Agreement (the "Endeavour Note Purchase Agreement"), (b) Registration Rights
Agreement (the "Endeavour Registration Agreement") and (c) a Security Agreement
(the "Endeavour Security Agreement"), each dated December 31, 1999 between
Interiors and Endeavour, Endeavour agreed to loan monies to Interiors; and
WHEREAS, in accordance therewith, Endeavour provided funds to
Interiors and Interiors executed a Secured Convertible Promissory Note due
September 29, 2004 in the amount of $1,744,518 in favor of Endeavour (the
"Endeavour Note"); the Endeavour Note Purchase Agreement, the Endeavour
Registration Agreements, the Endeavour Security Agreement and the Endeavour Note
collectively referred to as the "Endeavour Loan Documents"); and
WHEREAS, pursuant to the Limeridge Security Agreement and the
Endeavour Security Agreement (collectively, the "Security Agreements"), as of
September 30, 1999 Interiors pledged to Lenders all of its right, title and
interest in and to the shares of its wholly owned subsidiary, Petals (the
"Collateral"), to secure its obligations to Lenders under the Limeridge Note and
the Endeavour Note (collectively, the "Notes"); and
WHEREAS, on or about June 15, 2000 Foothill Capital
Corporation ("Foothill") entered into a Loan and Security Agreement with
Interiors and its subsidiaries, including Petals (the "Foothill Agreement"),
pursuant to which Foothill agreed to provide up to $25,000,000 to Interiors and
its subsidiaries through term loans and a revolving credit facility, subject to
certain conditions; and
WHEREAS, there have been a number of material events of
default by Borrower under the Limeridge Loan Documents and the Endeavour Loan
Documents (collectively, the "Loan Documents") and, as a result, Lenders have
exercised certain rights as secured lenders pursuant to the Loan Documents
including sending notices of default and acceleration of the Indebtedness to
Borrower and advising Borrower of their intentions to foreclose their security
interests on Borrower's ownership interest in Petals; and
WHEREAS, as of April 26, 2001, the Lenders, Interiors, Petals,
Stylecraft and Habitat entered into a Forbearance and Acknowledgement Agreement
(the "Forbearance Agreement"), pursuant to which, inter alia, the Borrower
reaffirmed its Indebtedness, as of April 1, 2001 to Limeridge in the amount of
$19,868,514.25 and to Endeavour in the amount of $2,616,389.95, and based on
Borrower's covenant to execute, by not later than July 31, 2001, definitive
contracts with bona fide unaffiliated third parties to sell the equity or assets
of any of Petals, Stylecraft or the Subsidiaries at prices aggregating not less
than $38.0 million with "Contingencies" (as defined in the Forbearance
Agreement) to expire by August 31, 2001, the Lenders agreed to forbear from
exercising their rights and remedies against the Borrower and the Collateral
through September 30, 2001; and
WHEREAS, Borrower defaulted in meeting its obligations under
the Forbearance Agreement; and
WHEREAS, during September, 2001, Borrower, Stylecraft and
Stylecraft Acquisition, Inc. has entered into a asset purchase agreement,
pursuant to which Stylecraft was to sell substantially all of its assets for
$26,750,000; and
WHEREAS, Lenders objected to the proposed sale of Stylecraft's
assets as Borrower indicated that the proceeds thereof would not be available
for distribution and repayment of a portion of the Borrowers' obligations to
Lenders under the Loan Documents in accordance with and as provided for in the
Forbearance Agreement; and
WHEREAS, the Borrower and Petals advised the Lenders that it
was in negotiations with Blythe, Inc ("Blythe") to consummate the sale of the
assets and business of Petals for a gross cash purchase price of approximately
$27.5 million and further requested that Lenders forbear from taking any action
to enforce their various rights and remedies against Borrower and/or exercising
their rights to collect the Indebtedness (as hereinafter described in Section 1
below) and foreclose on the Collateral for a certain period of time with respect
thereto; and
WHEREAS, on September 28, 2001, the Borrower, Petals,
Stylecraft, Habitat, Concepts and Lenders entered into a comprehensive
amendment, guaranty and security agreement with Lenders dated as of September
28, 2001, pursuant to which, inter alia, (a) Lenders were paid the sum of
$2,800,000 from the sale of the Stylecraft assets, (b) the Borrower reaffirmed
its Indebtedness, as of September 15, 2001 to Limeridge in the amount of
$22,829,283.12 and to Endeavour in the amount of $3,013,994.67 (prior to credit
for the $2,800,000 from the sale of the Stylecraft assets), (c) Obligors in
addition to Borrower agreed to guaranty Borrower's indebtedness to the Lenders
and secure such guarantees with subordinate liens on their assets, (d) the
Lenders agreed to permit the sale of the Stylecraft assets to occur and (e)
Lenders agreed to further temporarily forbear from exercising their rights and
remedies with respect to the material events of default under the Loan Documents
and the Forbearance Agreement through December 31, 2001 (the "Second Forbearance
Agreement"; together with the Forbearance Agreement, the "Forbearance
Agreements"); and
2
WHEREAS, Obligors have again materially defaulted under the
Second Forbearance Agreement including, without limitation (a) the entry of a
judgment against Interiors and Petals in excess of $1.9 million by Matrix
Leasing, resulting in a Forbearance Default under the terms of the Forbearance
Agreements, and (b) breach of representations relating to intercompany advances
or loans of money between Obligors; and
WHEREAS, in addition to the foregoing defaults under the
Forbearance Agreements, although Blythe had been in advanced negotiations to
purchase the assets and business of Petals for $24 million, Blythe has recently
reduced its proposed gross purchase price to not more than $20.0 million; an
amount which is substantially less than represented to Lenders by Borrower, and
insufficient to reduce the defaulted Indebtedness owed to the Lenders under the
Notes by an aggregate amount satisfactory to Lenders; and
WHEREAS, the Lenders have notified the Borrower of their
intent to foreclose, effective as of December 27, 2001, on the Collateral
securing the Notes.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Certain Definitions. Unless otherwise defined in this Agreement, all
capitalized terms used herein shall have the same meanings as are defined in the
Forbearance Agreements.
2. Acknowledgement of Indebtedness.
2.1 Borrower hereby reaffirms that as of December 25, 2001, Borrower is
indebted to
(a) Limeridge pursuant to the Loan Documents in the amount of
$22,463,294.34, which includes (i) $12,990,626.00 of Limeridge
Principal, (ii) $2,247,969.00 in fees and expenses pursuant to
Section 12.7 of the Limeridge Purchase Agreement, (iii)
$2,558,376.13 in past accrued interest and (iv) $4,666,323.21
in liquidated damages for breach of the Limeridge Registration
Agreement;
(b) Endeavour pursuant to the Loan Documents in the amount of
$2,931,108.61, which includes (i) $1,744,518.00 of outstanding
Endeavour Principal, (ii) $301,996.07 in fees and expenses
pursuant to Section 12.7 of the Endeavour Purchase Agreement,
(iii) $262,383.12 in past accrued interest and (iv)
$622,211.42 in liquidated damages for breach of the Endeavour
Registration Agreement;
3
2.2 As used in this Agreement, Borrower's "Indebtedness" to the Lenders
shall mean the sums referred to above in Section 2.1 hereof as such
amounts shall continue to accrue, plus Lenders' reasonable costs and
expenses incurred in collection of any and all of the Indebtedness from
the Borrower and the reasonable costs incurred in the negotiation of
this Agreement and the ancillary agreements, documents and enforcement
devices provided for herein, including, but not limited to, Collection
Costs.
2.3 All payments hereunder for application to the Indebtedness shall be
made, without setoff, counterclaim or withholdings of any kind
whatsoever.
2.4 It is agreed that the Lenders do not waive and expressly reserve
their right to recover Registration Rights Damages for all periods
through and including December 31, 2001, but the Lenders hereby waive
all Registration Rights Damages for all periods from and after January
1, 2002. The Lenders shall have sole discretion in applying amounts
received by them hereunder and to Principal, Interest and Fees and
Expenses, Registration Rights Damages, collection costs and all other
amounts payable hereunder and under the Loan Documents.
2.5 Borrower acknowledges that it is in default under, inter alia:
(a) Sections 7(h), 7(i) and 7(j) of each of the Notes;
(b) Section 3 of the Limeridge Registration Rights Agreement
and the Endeavour Registration Agreement;
(c) Section 12.7 of Limeridge Note Purchase Agreement and the
Endeavour Note Purchase Agreement; and
(d) the Forbearance Agreements.
3. Foreclosure on Collateral; Agreements of Lender.
3.1 By reason of the occurrence and continuation of the Events of
Default under the Notes, the Forbearance Agreements and the other agreements
referred to in Section 3.2 above, the Lenders have notified the Borrower (the
"Foreclosure Notice") of the Lenders' intention to foreclose on December 27,
2001 (the "Foreclosure Date"), on all, and not less than all, of the shares of
capital stock of Petals, representing the Collateral (the "Foreclosure").
3.2 The Borrower and Lender have engaged in negotiations with respect
to the intended Foreclosure and Borrower has agreed to deliver and Lenders have
agreed to accept legal title to the Collateral in partial satisfaction of the
Indebtedness, subject to consummation of the other transactions contemplated by
this Agreement, Borrower agrees not to seek protection from creditors under
Chapter 11 of the Federal Bankruptcy Code prior to the Foreclosure Date. The
Borrower further acknowledges, covenants and agrees that, as at the Foreclosure
Date, the Borrower shall deliver to the Lenders legal and beneficial title and
interest in and to the Collateral. Delivery of such legal and beneficial title
in and to the Collateral shall be in partial satisfaction of Seven Million Three
Hundred and Fifty Thousand Dollars ($7,350,000) of the aggregate Indebtedness
owed to the Lenders (the "Debt Reduction"). Borrower hereby waives its right to
notice of default, acceleration and Lender's intent to foreclose on the
Collateral and the disposition thereof, whether pursuant to the Uniform
Commercial Code or otherwise and consents thereto.
4
3.3 The parties hereto acknowledge that the Debt Reduction has been
calculated based on the "Collateral Value" of the equity of Petals. The
"Collateral Value" is defined as (a) the last purchase price offer made by
Blythe to acquire the assets and business of Petals, less (b) the sum of the
amounts to be deducted by Blythe from such gross purchase price and other actual
and estimated amounts required to be paid out of the net proceeds of the sale of
Petals or thereafter to reduce certain indebtedness and obligations of Petals
and Interiors (the "Collateral Value"). Certain of such indebtedness and
obligations are secured by liens, mortgages, security interests and other
encumbrances (collectively, "Liens") on the assets and properties of Petals.
3.4 The parties hereto do hereby agree that the aggregate amount of
the Debt Reduction has been calculated, as follows:
$20.000 million last offer received from Blyth;
(3.600 million) estimated past due Petals payables;
(0.400 million) estimated Petals payroll taxes;
(2.000 million) amount to be paid to Foothill(1);
(2.200 million) estimated amount owed to Xxxxxx(2);
(2.100 million) amount owed to Xxxxxx(3);
(0.675 million) amount owed to Xxxxxxx(4);
(0.500 million) estimate of amount needed to settle with
Matrix;
(0.750 million) estimate of payments to DN Partners and
management(5)
(0.075 million balance of professional fees owed to
Xxxxxxxxx Traurig(6);
(0.250 million) estimated fees owed to Xxxxxx Xxxxxxxx.
-----------------
$7.350 million
---------------
1 Lenders have arranged for a third-party entity to acquire Borrower's
and Petals' obligation to Foothill on or before December 27, 2001.
2 Xxxxxx had agreed to reduce its $2.7 million claim to $2.2 million.
3 Owed to Xxxxxx Xxxxxx and Xxxxxx Xxxxxxxx (collectively, "Xxxxxx").
Xxxxxx has agreed to accept $1.1 million in cash from Borrower or
Petals on December 27, 2001, subject to the closing of the sale of the
A.P.F. Master Framemakers division of Borrower (the "APF Division") to
APF Acquisition Corp. (the "APF Purchaser"), and the assignment of $1.0
million of indebtedness to the APF Purchaser and release of Borrower
and Petals from all liability thereunder.
4 To be paid in cash at the Foreclosure Date in consideration for a
release of all securities of Borrower held as collateral by such lender
and termination of the personal guarantees of Xxx Xxxx and Xxxxxx Xxxx.
In connection with the Foreclosure, Xxxxxxx has agreed to remain a
secured creditor of Petals and Interiors and to release the guarantee
claims against Max and Xxxxxx Xxxx and the collateral therefor.
5 To be negotiated prior or subsequent to the Foreclosure Date. The
foregoing amounts are subject to increase in the event of a Petals
Sale, pursuant to agreements among the Borrower, Petals and DN Partners
and Messrs. Xxxxxx, Conologue and Xxxxxxxx.
6 To be paid by Borrower on December 27, 2001 representing the balance
owed in respect of professional fees incurred in connection with the
Petals sale, the sale of the APF Division and the negotiation and
execution of this Agreement with the Lenders.
5
3.5 The Lenders shall, prior to the Foreclosure Date, notify Foothill,
Xxxxxx and Xxxxxx, the parties holding subordinate Liens on the Collateral, of
the alleged defaults and intent to accept the Petals Stock in partial
satisfaction of the Indebtedness. Foothill, Xxxxxx and Xxxxxx shall agree and
consent to the foregoing and waive notice thereof under U.C.C. Rev. Article 9
sections 9-620 and 9-621 and any claims against the Lenders with respect
thereto.
3.6 On the Foreclosure Date, Lenders shall arrange for a party (the
"Foothill Successor") to acquire all of the outstanding indebtedness for money
borrowed and all accrued interest thereon and costs associated therewith owed to
Foothill (the "Foothill Debt") for payment of the full amount thereof and such
party shall acquire by assignment of all of Foothill's first priority Liens and
other rights in and to the assets and properties of Borrower and its
Subsidiaries including Petals (but excluding the Assets being sold to the APF
Purchaser described below), 100% of the Foothill Debt (estimated at
approximately $2.0 million). The Borrower shall execute all such agreements and
other consents required to effect the assignment of the Foothill Debt and Liens
associated therewith to the Foothill Successor.
3.7 On the Foreclosure Date, in addition to its purchase and assumption
of the Foothill Debt, the Foothill Successor will lend the Borrower and Petals,
under the assigned credit facility from Foothill, up to an additional $2.0
million as a senior secured line of credit. The proceeds of such increase in the
line of credit shall be used, to the extent necessary to enable Borrower and/or
Petals to:
(a) subject to the satisfaction of the conditions set forth in
Section 3.8 below, pay Xxxxxx $1.1 million and, as a condition of its acceptance
thereof, Xxxxxx will release its claims against Xxx Xxxx and Xxxxxx Xxxx
personally and deliver general releases to Max and Xxxxxx Xxxx in respect of
such indebtedness and APF Purchaser will assume $1 million of indebtedness to
Xxxxxx;
(b) enter into an arrangement with Xxxxxx pursuant to which
Xxxxxx shall release its lien on the Petals stock, the APF assets of Interiors
and the guaranties of such indebtedness by Max and Xxxxxx Xxxx;
(c) enter into a settlement with Xxxxxxx pursuant to which
Xxxxxxx shall release his claims against the Xxx Xxxx and Xxxxxx Xxxx personally
(and his Liens on the super voting Class B common stock and Series E preferred
stock of Interiors) and deliver general releases to Max and Xxxxxx Xxxx; and
(d) provide Petals with working capital to meet seasonal cash
requirements.
3.8 On the Foreclosure Date, subject to its receipt of $1.1 million (or
such lesser amount as it shall agree upon), Xxxxxx will permit Borrower to
assign the balance of the Interiors debt owed to him ($1.0 million) to the APF
Purchaser, as described below, and provide the Borrower and Petals with a full
general release. The APF Purchaser shall assume $1.0 million of indebtedness
owed by the Borrower to Xxxxxx, all upon such terms and conditions as the APF
Lender and Xxxxxx may agree. In addition, Xxxxxx shall release its claims
against Xxx Xxxx and Xxxxxx Xxxx as related to their guaranty of Borrower's and
Petals' obligations.
6
3.9 On the Foreclosure Date, Borrower shall deliver to Lenders a stock
power endorsed in blank evidencing the conveyance of the Collateral.
4. Sale of Petals.
4.1 Lenders reserve at all times up to and including the Foreclosure
Date, the right to elect, in their sole discretion, to rescind such Foreclosure
and the Foreclosure Notice; such rescission to be effected by written notice to
the Borrower given by the Lenders at any time on or before the Foreclosure Date.
4.2 In the event that the Lenders shall rescind the Foreclosure Notice,
such rescission shall constitute the Lenders' consent and approval for the
Borrower and Petals to consummate the sale of the securities or the assets and
business of Petals (the "Petals Sale") to Blythe on or before the Foreclosure
Date. In addition, the Lenders shall use their best efforts to assist the
Borrower and Petals is effecting such Petals Sale.
4.3 In the event that the Lenders elect to so rescind the Foreclosure
Notice and effect the Petals Sale, all of the provisions of Section 3 of this
Agreement shall be applicable, provided, that
(a) all indebtedness owed the persons or entities listed in
Section 3.4 above shall be paid in such amounts as may be negotiated out of the
gross proceeds received from Blythe in respect of the Petals Sale, and the
Lenders will not assume or be responsible to pay or finance Borrower or Petals
to pay any of such obligations; and
(b) the Lenders will not be obligated to provide Petals with
any line of credit or other form of financing from and after the consummation of
the Petals Sale.
4.4 In the event that, as contemplated hereby, the Lender shall not
rescind the Foreclosure Notice, the Foreclosure shall be consummated as at the
Foreclosure Date. Upon consummation of the Foreclosure the Lender reserves the
right at any time and from time to time thereafter, as the sole record and
beneficial owner of the Collateral, to effect a Petals Sale to Blythe or any
third party.
5. Restructure of Lenders' Indebtedness Balance.
The balance of the Indebtedness to the Lenders, after the final
calculated Debt Reduction resulting either from the Foreclosure or a Petals Sale
consummated on or before the Foreclosure Date, currently estimated at about
$18.0 million (the "Indebtedness Balance"), the exact amount of which to be
fixed on the Foreclosure Date, will be evidenced by the securities set forth
below in this Section 5.
5.1 One Million Dollars ($1,000,000) of the Indebtedness Balance will
be evidenced by 100,000 shares of 6% non-convertible voting preferred stock of
Interiors, (the "Lenders Preferred Stock"); which Lenders Preferred Stock shall
(a) be issued to a designee of the Lenders, (b) by its terms, shall entitle the
holder to elect a majority of the members of the board of directors of Interiors
until such time as the remaining Indebtedness of the Lenders is paid in full,
and (c) shall have such rights and preferences as are set forth on the
Certificate of Designations annexed hereto as Exhibit A and made a part hereof.
On the Foreclosure Date, counsel for Interiors shall cause the Certificate of
Designations to be filed with the Secretary of State of the State of Delaware.
7
5.2 The remaining portion of the Indebtedness Balance shall be
represented by an amendment to the existing senior secured Limeridge Note and
the Endeavour Note and by corresponding amendments to the Limeridge Note
Purchase Agreement and Endeavour Note Purchase Agreement. Such amendments (the
"Amended Notes") shall be in form and content reasonably satisfactory to the
Lenders and Interiors, and shall provide, inter alia, as follows:
(a) the aggregate outstanding principal amount of all Notes
shall be fixed at the Indebtedness Balance, less $1,000,000;
(b) the annual interest rates accruing on the Notes from and
after the Foreclosure Date shall be reduced to six (6%) percent per annum;
(c) the maturity date of the Notes shall be extended to
December 31, 2008;
(d) the collateral security for payment of such Notes shall be
a first Lien on all assets and all of the securities of all Subsidiaries of the
Borrower, including Petals and Concepts 4, and on any remaining assets of
Interiors; and
(e) the conversion price on the amended Notes (in the event
any holder elects to convert its or their Notes into Common Stock of Interiors)
will be 85% of the lesser of (i) the closing bid price of Interiors Common Stock
on the Closing Date, or (ii) the average closing bid prices of Interiors Common
Stock for the five trading days prior to conversion; provided, that if Interiors
merges with or acquires an entity with a pre-acquisition valuation of $15.0
million or more (a "Significant Transaction"), such conversion prices will be
fixed based upon a mutually agreed upon discount from the closing price of
Interiors Common Stock prior to the date of consummation of such Significant
Transaction.
6. Sale of APF Division.
6.1 On the Foreclosure Date, the APF Purchaser (which is an Affiliate
of Xxx Xxxx) shall purchase, and Interiors shall sell, the assets and business
of the APF Division, all pursuant to the terms and conditions of an Asset
Purchase Agreement, dated December 21, 2001, among Xxx Xxxx, Interiors and the
APF Purchaser (the "APF Purchase Agreement"). A true copy of the executed APF
Purchase Agreement and the exhibits thereto are annexed hereto as Exhibit B and
made a part hereof.
6.2 Subject only to satisfaction of the conditions precedent to the
obligations of Interiors to close the transactions contemplated thereby (the
"Borrower's APF Closing Conditions"), the Lenders do hereby irrevocably consent
to the transactions contemplated by the APF Purchase Agreement on or before the
Foreclosure Date, and do further agree to pay or cause to be paid to Xxxxxx the
sum of $1.1 Million to obtain Xxxxxx' consent to such sale and release of Liens
held on the assets and properties of Borrower and its subsidiaries. The Borrower
shall not waive any of the Borrower's APF Closing Conditions without the prior
written consent of the Lenders.
8
6.3 The Borrower hereby (a) assigns to the Foothill Successor all notes
and other consideration paid and payable by the APF Purchaser to Borrower under
the APF Purchase Agreement and (b) as further collateral for payment of the
Notes, assigns to the Lenders all notes and other consideration paid and payable
by the APF Purchaser to Borrower under the APF Purchase Agreement.
6.4 Consummation of the transactions contemplated by the APF Purchase
Agreement shall be a condition to consummation of the transactions contemplated
by this Agreement.
6.5 Upon the closing of the APF Purchase Agreement, any Lien held by
the Lenders on the assets and property of the APF Division shall be
automatically released and the Lenders shall deliver to the APF Purchaser UCC-3
termination statements with respect to such assets and property promptly
following any request therefor by the APF Purchaser.
7. [Intentionally Omitted]
8. Certain Transactions with Xxx Xxxx and Xxxxxx Xxxx.
8.1 Subject only to consummation of the transactions contemplated by
the APF Purchase Agreement and their receipt of general releases from the
Borrower, the Lenders, Xxxxxx and Xxxxxxx, each of Xxx Xxxx and Xxxxxx Xxxx do
hereby covenant and agree, pursuant to a separate agreement (the "Securities
Cancellation and Redemption Agreement") to rescind and/or sell back to Interiors
on the Foreclosure Date 100% of all shares of Class B Common Stock of Interiors
and 100% of all shares of Series E Preferred Stock owned of record and
beneficially by them; a true copy of which Securities Cancellation and
Redemption Agreement is annexed hereto as Exhibit C and made a part hereof.
8.2 In consideration of their consummation of the Securities
Cancellation and Redemption Agreement, all indebtedness (approximately $3.5
million incurred by Xxx Xxxx and/or Xxxxxx Xxxx in connection with their
purchase of the Class B Common Stock and Series E Preferred Stock shall be
deemed to be cancelled and forgiven.
8.1 Subject only to consummation of the transactions contemplated by
the APF Purchase Agreement and his receipt of general releases from the
Borrower, on the Foreclosure Date, the existing employment agreement between Xxx
Xxxx and Interiors and its Subsidiaries (the "Xxxx Employment Agreement") shall
be terminated and without any further force or effect, and thereafter Interiors
shall have no further obligation or liability to Xxx Xxxx thereunder. In
consideration for the cancellation of the Xxxx Employment Agreement, all
remaining indebtedness of Xxx Xxxx to Interiors (estimated at $568,625, plus
accrued interest), shall be extinguished effective as at the Foreclosure Date.
9
9. Additional Agreements and Acknowledgements.
9.1 Simultaneous with the execution and delivery of this Agreement,
Messrs. Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx have tendered their resignations as
members of the boards of directors of each of Interiors and all of their
Subsidiaries.
9.2 Xxx Xxxx, the remaining member of the Borrower's board of
directors, shall on or before the Foreclosure Date appoint one or two persons
acceptable to the Lenders as members of the Interiors board of directors and the
board of each Subsidiary, to fill the vacancies created by the resignations of
Messrs. Josephberg and Xxxxxx.
9.3 Simultaneous with the Foreclosure Date and consummation of the
transactions contemplated by the APF Purchase Agreement, Xxx Xxxx, subsequent to
the appointment of successor board member(s) as contemplated in Section 9.2
above, shall resign as a director of Interiors and all Subsidiaries of
Interiors.
9.4. On or prior to the expiration of Interior's existing directors and
officers insurance coverage (the "D&O Policy"), Interiors shall use its best
efforts to obtain a tail policy with respect to with policy limits of not less
than $3.0 million, and which tail insurance shall include coverage for each of
Messrs. Xxxxxxxxxx, Xxxxxx and Xxxx and all other Interiors executive officers.
9.5 In the event that Interiors shall, subsequent to the Foreclosure
Date file a Chapter 11 petition or have a Chapter 11 petition filed against it,
Interiors will indemnify, defend and hold harmless Messrs. Xxxx, Xxxxxx and
Josephberg and all Interiors executive officers, to the fullest extent permitted
by Delaware corporate law, from and against any claims of Interiors creditors or
stockholders to the fullest extent permitted by Delaware law, if and to the
extent that any costs, judgment or settlement exceeds the D&O insurance coverage
in place at closing.
9.6 On the Closing Date, Max. Xxxx shall enter into an agreement with
Interiors to serve as a consultant to Interiors in accordance with the terms of
the consulting agreement annexed hereto as Exhibit D and made a part hereof (the
"Xxxx Consulting Agreement").
9.7 By execution and delivery of this Agreement, Borrower hereby
acknowledges, confirms and reaffirms that the full amount of the Indebtedness
and its obligations in respect thereof are currently due and payable and
Borrower has no claim, defense, setoff or counterclaim against the Lenders or
any of their officers, directors, employees, agents or attorneys with respect to
such amounts. In addition, Borrower hereby acknowledges that the Loan Documents
are in full force and effect and there are no oral agreements or understandings
that modify or alter the terms thereof. Nothing contained in this Agreement
shall constitute a waiver of, or affect the enforceability of, any other
Document. Borrower hereby expressly waives any right to notice of sale or any
right to a public sale under the Uniform Commercial Code, as in effect in New
York.
9.8 Lenders reserve any and all rights and remedies they may have
against the Borrower and any and all Collateral provided by the Loan Documents
or hereby. Nothing contained in this Agreement shall constitute a limitation
upon or waiver of such rights and remedies available to Lenders under the terms
of the Loan Documents nor shall anything contained herein absolve the Borrower
from any liability arising pursuant to the terms of the Loan Documents and the
Notes, as amended pursuant to this Agreement from and after the Foreclosure
Date.
10
9.9 Borrower agrees to pay on demand all reasonable fees and expenses
incurred by Lenders (including, without limitation, the fees and disbursements
of counsel) in connection with the Indebtedness, the preparation, execution,
delivery, enforcement, maintenance, and amendment of this Agreement and the
documents and instruments referred to herein, including, without limitation, the
fees and expenses incurred by Lenders (including, without limitation, the
reasonable fees and disbursements of counsel) in connection with any waiver or
consent to the Loan Documents, and in connection with any restructuring of the
Loan Documents, and enforcement thereof and collection and credit administration
thereunder.
9.10 Interiors, Petals and Stylecraft and Xxx Xxxx certify that the
schedules attached hereto as Schedule 9.10A, Schedule 9.10B and Schedule 9.10C
reflect a complete listing of assets, liabilities, litigations and threatened
litigations against Interiors, Petals and Stylecraft, respectively, of which,
with respect to threatened litigations, such parties have knowledge or have
reason to know of, as at the dates indicated thereon. It is understood that each
of such Obligors and Xxx Xxxx may update such Schedules between the date hereof
and the Foreclosure Date; provided, that the obligations of Lenders to
consummate the transactions contemplated by this Agreement shall be subject to
the updated Schedules not disclosing any assets, liabilities, litigations and
threatened litigations against such Obligors which were not disclosed on the
Schedules annexed hereto that, individually or in the aggregate could reasonably
be expected to have a material adverse effect on the assets, liabilities,
contingencies, business or future prospects of Petals, individually, or
Interiors and Stylecraft when taken as a consolidated whole. By their execution
hereof, each of Interiors, Petals and Stylecraft and Xxx Xxxx do hereby certify
that Petals is not indebted to Interiors, Stylecraft or any other subsidiary of
Interiors, and will not be so indebted as at the Foreclosure Date.
11
10. Representations and Warranties.
10.1 In order to induce Lenders to enter into this Agreement, Borrower
hereby represents that (a) it is a corporation legally existing and in good
standing under the laws of the State of Delaware and is qualified to transact
business as a foreign corporation in all states where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect; (b) it has adequate corporate power and authority to execute, deliver
and perform this Agreement, and the transactions contemplated hereby; (c) this
Agreement, constitutes a valid and binding obligation of it, enforceable in
accordance with its terms except to the extent that enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, or other similar laws
affecting creditors' rights generally and by equitable principles (regardless of
whether enforcement is sought in equity or at law); (d) the execution, delivery
and performance by it of this Agreement and the transactions contemplated hereby
have all been duly authorized by all corporate action and will not violate the
provisions of Borrower's Certificate of Incorporation or By-laws or any
applicable law or the order of any court or other agency of government and will
not result in any breach of the terms of any agreement (except to the extent
consent may be required under the Foothill Agreement and agreements with Xxxxxx,
Xxxxxx and Xxxxxxx) or, except to the extent expressly provided for hereunder,
give rise to any lien on the assets of Borrower; (e) all authorizations,
approvals, registrations or filings from or with any governmental or public
regulatory body or authority of the United States or of any state thereof
required for the execution, delivery and performance by it of this Agreement or
the transactions contemplated hereby have been duly obtained or made and are in
full force and effect; (f) except for litigation set forth on Exhibit E annexed
hereto (the "Litigation") there is no action, suit or proceeding pending, or to
its knowledge threatened, at law or in equity or by or before any arbitrator or
arbitration panel or governmental instrumentality or other agency or any
investigation of its affairs, or any of its properties or rights which, if
adversely determined, would materially affect its ability to perform its
obligations under this Agreement or to consummate the transactions contemplated
hereby; and (g) as at the Foreclosure Date Petals will not have any intercompany
obligations or indebtedness owed to Interiors or its other subsidiaries.
10.2 Each Lender hereby represents that (a) it legally exists and is in
good standing under the laws of the jurisdiction under which it exists; (b) it
has authority to execute, deliver and perform this Agreement and the
transactions contemplated hereby; (c) this Agreement, constitutes a valid and
binding obligation of it, enforceable in accordance with its terms except to the
extent that enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws affecting creditors' rights generally and
by equitable principles (regardless of whether enforcement is sought in equity
or at law); (d) the execution, delivery and performance by it of this Agreement
and the transactions contemplated hereby have all been duly authorized and will
not violate the provisions of Lenders' Articles of Organization or By-laws or
any applicable law or the order of any court or other agency of government; and
(e) there is no action, suit or proceeding pending, or to its knowledge
threatened, at law or in equity or by or before any arbitrator or arbitration
panel or governmental instrumentality or other agency or any investigation of
its affairs, or any of its properties or rights which, if adversely determined,
would materially affect its ability to perform its obligations under this
Agreement or to consummate the transactions contemplated hereby.
12
11. Release and Waiver of Claims.
(a) For and in consideration of the mutual covenants and obligations
set forth in this Agreement and other good and valuable consideration, the
receipt of which is hereby acknowledged, Borrower and each other Obligor, and
each of the Released Parties described in Section 11(b) below who has executed
this Agreement (each, a "Releasor") hereby releases and forever discharges, and
by these presents does for its subsidiaries, if any (direct or indirect), and
itself and its predecessors, successors, affiliates and assigns, remise, release
and forever discharge and hold harmless Lenders, Collateral Agent, and each of
their predecessors, affiliates, subsidiaries (direct or indirect), shareholders,
officers, directors, employees, agents, advisor or attorneys, successors and
assigns, of and from and against all manner of action and actions, cause and
causes of action (whether individual, derivative or representative), suits,
debts, dues, sums of money, accounts, fees, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises, damages,
costs, expenses, claims and demands whatsoever, in law or in equity which the
Releasor ever had, now has, or which hereinafter can, shall or may have by
reason of any matter, claim or cause of action of any kind whatsoever, from the
beginning of the world to the date of this Agreement, whether known or unknown,
including, without limitation, those relating in any way to: (i) this Agreement,
the Security Agreements, the Loan Documents, the Forbearance Agreement, and any
and all other Documents, (ii) any claims (including without limitation for
contribution or indemnification) which have or could have arisen out of any of
the transactions contemplated or any other proceedings that have been brought or
may be brought by any party hereto or to any Document or any third party
relating to this Agreement, the Loan Documents, the Forbearance Agreement, or
the transactions contemplated hereby or thereby, (iii) any acts, transactions,
or events that are the subject matter of this Agreement, the Loan Documents, the
Forbearance Agreement, or agreements related thereto, (iv) the communications
and business dealings between Lenders and the Releasor from the beginning of
communications and business dealings between Collateral Agent and Lenders on the
one hand and the Releasor on the other, related in any way to this Agreement,
the Loan Documents, the Forbearance Agreement, or the transactions contemplated
hereby or thereby, or (v) the prosecution of any claim, defense, setoff,
counterclaim or any settlement negotiations which the Releasor ever had, now has
or which they, their affiliates (direct or indirect), or their successors or
assigns hereafter can, shall or may have against Lenders, provided, however,
that nothing herein shall be construed or deemed to release any covenants or
agreements contained in this Agreement.
(b) Upon satisfaction in full of the Indebtedness, for and in
consideration of the mutual covenants and obligations set forth in this
Agreement and other good and valuable consideration, the receipt of which is
hereby acknowledged, each Lender hereby releases and forever discharges, and by
these presents does for its subsidiaries, if any (direct or indirect), and
itself and its predecessors, successors, affiliates and assigns, remise, release
and forever discharge and hold harmless each of Xxx Xxxx, Xxxxxx Xxxx, Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx and Xxxxx Xxxxxx and
each of their successors and assigns (collectively, the "Released Parties"), of
and from and against all manner of action and actions, cause and causes of
action (whether individual, derivative or representative), suits, debts, dues,
sums of money, accounts, fees, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, damages, costs, expenses, claims
and demands whatsoever, in law or in equity which the Lenders ever had, now
have, or which hereinafter can, shall or may have by reason of any matter, claim
or cause of action of any kind whatsoever, from the beginning of the world to
the date of this Agreement, whether known or unknown, including, without
limitation, those relating in any way to: (i) this Agreement, the Security
Agreements, the Loan Documents, the Forbearance Agreement, , and any and all
other Documents, (ii) any claims (including without limitation for contribution
or indemnification) which have or could have arisen out of any of the
transactions contemplated or any other proceedings that have been brought or may
be brought by any party hereto or to any Document or any third party relating to
this Agreement, the Loan Documents, the Forbearance Agreement, or the
transactions contemplated hereby or thereby, (iii) any acts, transactions, or
events that are the subject matter of this Agreement, the Loan Documents, the
Forbearance Agreement, or agreements related thereto, (iv) the communications
and business dealings between Lenders and Borrower from the beginning of
communications and business dealings between Lenders on the one hand and the
Borrower on the other, related in any way to this Agreement, the Loan Documents,
the Forbearance Agreement, or the transactions contemplated hereby or thereby,
or (v) the prosecution of any claim, defense, setoff, counterclaim or any
settlement negotiations which the Lenders ever had, now has or which they, their
affiliates (direct or indirect), or their successors or assigns hereafter can,
shall or may have against Borrower, provided, however, that nothing herein shall
be construed or deemed to release any covenants or agreements contained in this
Agreement.
13
(c) Each party hereto represents, acknowledges and agrees that (i) it
was represented by counsel in connection with the execution of this Agreement
and the related collateral documents executed and to be executed in
contemplation hereby, (ii) it did not enter into this Agreement under any form
of duress, and did so voluntarily and of its own free will, and (iii) it has
received and will receive benefit from and as a result of its execution of and
performance under this Agreement.
12. Indemnity. Borrower hereby agrees to indemnify Lenders from and against all
losses, costs, expenses, demands and damages whatsoever which Lenders may suffer
or incur in respect of any claims which have or may be brought by any third
party relating to this Agreement or the transactions contemplated hereby;
provided, however, that to the extent such claims shall be the result of Lenders
having failed to act in a commercially reasonable manner, then Borrower shall be
under no obligation to indemnify Lenders. This indemnity shall continue in full
force and effect notwithstanding completion of the other matters referred to in
this Agreement.
13. Miscellaneous.
(a) Writings Required. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Borrower or any Obligor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by Lenders, and then such waiver or consent shall be, effective only in the
specific instance and for the specific purpose given.
(b) Relief from Automatic Stay in Bankruptcy. Borrower and Petals
knowingly, voluntarily, intentionally and after consultation and advice of
counsel agree with Lenders that notwithstanding anything to the contrary
contained in this Agreement or the Loan Documents, in the event an order for
relief under any chapter of title 11 of the United States Code, 11 U.S.C. ss.
101, et. Seq. (the "Bankruptcy Code") is entered with respect to Borrower or
Petals (it being understood that this Agreement is not intended to preclude such
a filing), the following provisions shall be applicable:
(i) Lenders shall be entitled to the immediate termination of
the automatic stay provisions of 11 U.S.C. ss. 362 (and any other relevant
provisions of the Bankruptcy Code), and granted unconditional relief from the
automatic stay and allowed to pursue any and all rights, remedies and recourses
available to Lenders under this Agreement and the Loan Documents and pursuant to
any provisions of applicable law. Lenders only shall be required to file a
motion for relief from the automatic stay provisions of 11 U.S.C. ss. 362 and
Borrower and Petals hereby consent to an emergency hearing thereon. Borrower and
Petals hereby waive the right to oppose the motion or assert any defense to the
relief requested by Lenders. Lenders are authorized to submit an affidavit with
the motion (a) in identifying the Existing defaults and any Events of Default
hereunder or under the other Loan Documents, (b) stating the amount of the
Obligations and (c) advising the bankruptcy court of Borrower's and Petals'
consent to unconditional relief from the automatic stay.
(ii) Borrower and Petals shall not without Lenders' written
consent, seek to obtain financing under 11 U.S.C. ss. 364 that will result in
the granting of liens and security interests in the Pledged Collateral and
Collateral with priority over Lenders' liens and security interests.
14
(iii) Lender's entitlement as aforesaid to the lifting of the
automatic stay hereunder by the appropriate bankruptcy court shall be deemed
"for cause" pursuant to ss. 362(d)(1) of the Bankruptcy Code as amended from
time to time.
(c) UCC Waivers.
(i) Borrower and Petals will not, directly or indirectly, do any act or
fail to do any act, which would impair or affect Lenders' security interest in
any collateral heretofore provided to Lenders, nor will Borrower or Petals, upon
any default or Event of Default under this Agreement or the other Loan
Documents, contest Lenders' right to obtain judgment against Borrower or to
foreclose upon any collateral pledged to Lenders, nor will Borrower move to
vacate or enjoin such judgment or foreclosure.
(ii) Borrower and Petals each waives and renounces all rights which are
waivable under Article 9 of the UCC, whether such rights are waivable before or
after default, including, without limitation, those rights with respect to
compulsory disposition of collateral, any right of redemption, and any right to
notice relating to disposition of collateral.
(d) No Waiver.
No failure on the part of Lenders to exercise, and no delay in
exercising, any right hereunder shall preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any provided by law.
(e) Governing Law.
The Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(f) Counterparts.
This Agreement may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
(g) Binding Effect.
This Agreement shall be binding upon, and shall inure to the benefit
of, Borrower and Lenders and their respective successors and assigns except that
Borrower may not assign or transfer its rights or obligations hereunder.
15
(h) Notices.
Notices shall be given to Lenders and Borrower by certified mail or
telecopier addressed to:
Lenders: Limeridge LLC
x/x Xxxxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxxx Drive
P.O. Box 972
Road Town
Tortola, British Virgin Islands
Attn: Xxxxx Xxxx
Telephone:
Facsimile: (000) 000-0000
The Endeavour Capital Fund, S.A.
and
The Endeavour Capital Investment Fund, S.A.
X.X. Xxx 00000
Xxxxxxxxx, Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: 000-0-000-0000
Facsimile: 972-2-500-3318 or 3319
with a copy to:
Blank Rome Xxxxxx Xxxxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Borrower, Petals
or Concepts 4: Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attn: Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
16
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party. All such notices shall be effective when
deposited in the mails or sent by telecopier, respectively, except that notices
to Lenders shall not be effective until received by Lenders.
(i) Consent to Jurisdiction; Waiver of Jury Trial.
(A) Borrower, Lenders and Escrow Agent irrevocably
submit to the jurisdiction of any New York State or Federal
court sitting in the City of New York over any suit, action,
or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby and Borrower and Lenders
hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such New
York State court, or to the extent permitted by law, in such
Federal court. Borrower irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit,
action, or proceeding brought in such a court and any Claim
that any such suit, action or proceeding has been brought in
an inconvenient forum.
(B) BORROWER AND LENDERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION BASED ON THIS AGREEMENT OR
THE FACILITY LOAN DOCUMENTS OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE FACILITY LOAN DOCUMENTS
OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY OF
THE PARTIES, INCLUDING LENDERS' OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR ATTORNEYS. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDERS TO ENTER INTO THIS AGREEMENT.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
INTERIORS, INC.
By:
--------------------------------------
Title:
PETALS, INC.
By:
--------------------------------------
Title:
STYLECRAFT LAMPS, INC.
By:
--------------------------------------
Title:
HABITAT SOLUTIONS, INC.
By:
--------------------------------------
Title:
CONCEPTS 4, INC.
By:
--------------------------------------
Title:
------------------------------------------
XXX XXXX, individually and on behalf
of A.P.F. Acquisition Corp.
------------------------------------------
XXXXXX XXXX
LIMERIDGE, LLC
By:
--------------------------------------
Title:
18
THE ENDEAVOUR CAPITAL FUND S.A.
By:
--------------------------------------
Title:
THE ENDEAVOUR CAPITAL INVESTMENT FUND S.A.
By:
--------------------------------------
Title:
19
