AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENTS
EXHIBIT
4.01
AMENDMENT
TO NOTE PURCHASE
AND
PRIVATE SHELF AGREEMENTS
THIS
AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENTS (this
“Amendment”),
is made and
entered into as of July 14, 2006, by and among Xxxxxxx Furniture Company, Inc.
(the “Company”),
The Prudential
Insurance Company of America (together with its successors and assigns,
“PICA”),
Hartford Life
Insurance Company (“Hartford”),
and Medica
Health Plans (“Medica”
and,
together
with PICA, Hartford and Medica, the “Noteholders”).
W I T N E S S E T H:
WHEREAS,
(i) the
Company and PICA are parties to that certain Note Purchase and Private Shelf
Agreement, dated as of June 29, 1995 (as amended, restated, supplemented or
otherwise modified from time to time, the “1995
Note Agreement”)
and (ii) the
Company, PICA, Hartford and Medica are parties to that certain Private Shelf
Facility, dated as of September 8, 1999 (as amended, restated, supplemented
or
otherwise modified from time to time the “1999
Note Agreement”
and,
together
with the 1995 Note Agreement, the “Note
Agreements”);
capitalized
terms used herein and not otherwise defined shall have the meanings assigned
to
such terms in the Note Agreements; and
WHEREAS,
the
Company has requested that the Noteholders amend certain provisions of the
Note
Agreements, and subject to the terms and conditions hereof, the Noteholders
are
willing to do so;
NOW,
THEREFORE, for
good and valuable consideration, the sufficiency and receipt of all of which
are
acknowledged, (i) the Company, and PICA agree that the 1995 Note Agreement
is
amended as follows and (ii) the Company, PICA, Hartford and Medica agree that
the 1999 Note Agreement is amended as follows:
1. Amendments.
(a)
Section 6A of
such Note Agreement (Fixed Charge Coverage and Debt Limits) is hereby amended
by
replacing the “.” at the end of such Section with “; or” and adding the
following as a new subsection (iv):
(iv) the
ratio of
Consolidated Debt to Consolidated EBITDA to exceed 2.75:1.00.
(b)
Section 6B of
such Note Agreement (Dividend Limitation) is hereby amended by removing such
covenant in its entirety and replacing such Section in its entirety with
“Intentionally
Omitted”.
(c)
Section 6C(7)
of such Note Agreement (Investments) is hereby amended by replacing clause
(vi)
of such Section in its entirety with the following:
(vi) any
other
Investment of the Company or any of its Subsidiaries so long as the amount
of
all such Investments, other than investments specified in clauses (i) through
(v) above shall not exceed an amount equal to 10% of Consolidated Assets.
(d)
Section 10B of
such Note Agreement (Definitions: Other Terms) is hereby amended by adding
the
following definition of “Consolidated
EBITDA”
in
proper
alphabetical order:
“Consolidated
EBITDA”
shall mean, for
the Company and its Subsidiaries on a Consolidated basis for the four fiscal
quarters most recently ended, Consolidated Net Earnings, or Consolidated Net
Loss, as the case may be, for such period, plus
to
the extent
deducted in calculating such Consolidated Net Earnings or Consolidated Net
Loss,
taxes, depreciation, amortization and Consolidated Interest
Charges.
2. Conditions
to Effectiveness of this Amendment.
Notwithstanding
any
other provision of this Amendment, it is understood and agreed that this
Amendment shall not become effective until (i) PICA shall have received executed
counterparts to this Amendment from the Company and each Noteholder, (ii) the
Noteholders have received reimbursement of, or evidence of the direct payment
of, the reasonable fees, charges and disbursements of King & Spalding LLP,
counsel to the Noteholders incurred in connection with this Amendment, and
(iii)
PICA shall have received copies of an amendment to the Company’s credit
facility, amending such credit facility in a manner similar to the amendments
to
Section 6B of the Note Agreements contained herein.
3. Representations
and Warranties.
To induce the
Noteholders to enter into this Amendment, the Company hereby represents and
warrants to the Noteholders that:
(a) The
execution,
delivery and performance by the Company of this Amendment (i) are within
the Company’s power and authority; (ii) have been duly authorized by all
necessary corporate and shareholder action; (iii) are not in contravention
of any provision of the Company’s certificate of incorporation or bylaws or
other organizational documents; (iv) do not violate any law or regulation,
or any order or decree of any governmental authority; (v) do not conflict
with or result in the breach or termination of, constitute a default under
or
accelerate any performance required by, any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any such Subsidiary or any
of
their respective property is bound; (vi) do not result in the creation or
imposition of any Lien upon any of the property of the Company or any of its
Subsidiaries; and (vii) do not require the consent or approval of any
governmental authority or any other person;
(b) This
Amendment has
been duly executed and delivered for the benefit of or on behalf of the Company
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms; and
(c) After
giving effect
to this Amendment, no Default or Event of Default has occurred and is continuing
as of the date hereof.
4. Effect
of Amendment.
Except
as set forth
expressly herein, all terms of the Note Agreements, as amended hereby, shall
be
and remain in full force and effect and shall constitute the legal, valid,
binding and enforceable obligations of the Company to the Noteholders.
The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of
the Noteholders under either Note Agreement, nor constitute a waiver of any
provision of either Note Agreement.
5. Governing
Law.
This
Amendment
shall be governed by, and construed in accordance with, the internal laws of
the
State of New York and all applicable federal laws of the United States of
America.
6. No
Novation.
This Amendment is
not intended by the parties to be, and shall not be construed to be, a novation
of either Note Agreement or an accord and satisfaction in regard
thereto.
7. Costs
and Expenses.
The Company
agrees to pay on demand all costs and expenses of the Noteholders in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the reasonable fees and out-of-pocket expenses of outside
counsel for the Noteholders with respect thereto.
8. Counterparts. This
Amendment may
be executed by one or more of the parties hereto in any number of separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. Delivery
of
an executed counterpart of this Amendment by facsimile transmission or by
electronic mail in pdf form shall be as effective as delivery of a manually
executed counterpart hereof.
9. Binding
Nature.
This Amendment
shall be binding upon and inure to the benefit of the parties hereto, their
respective successors, successors-in-titles, and assigns.
10. Entire
Understanding.
This Amendment
sets forth the entire understanding of the parties with respect to the matters
set forth herein, and shall supersede any prior negotia-tions or agreements,
whether written or oral, with respect thereto.
[Signature
Pages
To Follow]
IN
WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above
written.
COMPANY:
XXXXXXX
FURNITURE COMPANY, INC.
By: /s/
Xxxxxxx
X. Xxxxx
Name: Xxxxxxx
X.
Xxxxx
Title: Exective
Vice-President -
Finance & Adminstration
NOTEHOLDERS:
THE
PRUDENTIAL INSURANCE COMPANY
OF
AMERICA
By:
/s/
Xxx X.
Xxxxx
Vice
President
HARTFORD
LIFE INSURANCE COMPANY
By: Prudential
Private
Placement Investors,
L.P.
(as Investment
Advisor)
By: Prudential
Private
Placement Investors, Inc.
(as
its General
Partner)
By:
/s/
Xxx
X.Xxxxx
Vice President
MEDICA
HEALTH PLANS
By: Prudential
Private
Placement Investors,
L.P.
(as Investment
Advisor)
By: Prudential
Private
Placement Investors, Inc.
(as
its General
Partner)
By:
/s/
Xxx X.
Xxxxx
Vice
President
