THIRD AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
Exhibit
4.01
THIRD
AMENDMENT TO NOTE PURCHASE
THIS THIRD AMENDMENT TO NOTE PURCHASE
AND PRIVATE SHELF AGREEMENT (this “Amendment”),
is made and entered into as of January 23, 2009, by and among Xxxxxxx Furniture
Company, Inc. (the “Company”),
and The Prudential Insurance Company of America (together with its successors
and assigns, “PICA”),
Pruco Life Insurance Company of New Jersey (“Pruco”),
Prudential Retirement Insurance and Annuity Company (“PRIAC”),
Hartford Life Insurance Company (“Hartford”),
Mutual of Omaha Insurance Company (“Mutual”)
and Medica Health Plans (“Medica”
and, together with PICA, Pruco, PRIAC, Hartford, Mutual and Medica, the “Noteholders”).
W I T N E S S E T H:
WHEREAS,
the Company, PICA, Hartford and Medica are parties to that certain Private Shelf
Facility, dated as of September 8, 1999 as amended and restated pursuant to that
certain Amended and Restated Note Purchase and Private Shelf Agreement dated
January 26, 2007 among the Company, PICA, Pruco, PRIAC, Hartford, Mutual and
Medica, as amended by that certain Amendment to Note Purchase and Private Shelf
Agreement, dated as of October 12, 2007 and as amended by that certain Second
Amendment to Note Purchase and Private Shelf Agreement, dated as of December 30,
2008 (as amended, restated, supplemented or otherwise modified from time to time
the “Note
Agreement”); capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Note Agreement;
and
WHEREAS,
PICA, Hartford and Medica are the holders of the 6.94% Senior Notes, due May 3,
2011 (the “2001
Notes”) and PICA, Pruco, PRIAC and Mutual are the holders of the Series
AA Notes, due May 3, 2017 (the “2007
Notes”), each issued pursuant to the Note Agreement;
WHEREAS,
the Company has requested that the Noteholders amend certain provisions of the
Note Agreement, 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, the Company, PICA, Pruco, PRIAC, Hartford, Mutual
and Medica agree that the Note Agreement is amended as follows:
1. Amendments.
(a) Section
5 of the Note Agreement is hereby amended by adding the following section
5J:
5J. Cash
Balance. The Company covenants that at all times during the
period commencing January 23, 2009 through and including March 30, 2010, it
shall maintain unrestricted cash on hand of at least $20,000,000.
(b) Subsection
6A(i) of the Note Agreement is hereby amended by replacing such subsection in
its entirety with the following:
(i) Consolidated
Operating Income to be less than 200% of Consolidated Fixed Charges; provided, however, that this
subsection 6A(i) shall not apply at any time during fiscal year 2009;
or
(c) Subsection
6A(iv) of the Note Agreement is hereby amended by replacing such subsection in
its entirety with the following:
(iv) the
ratio of Consolidated Debt to Consolidated EBITDA to exceed 2.75:1.00; provided, however, that this
subsection 6A(iv) shall not apply at any time during fiscal year
2009.
(d) Section
6B of the Note Agreement is hereby amended by replacing such section in its
entirety with the following:
6B. Minimum
Earnings. The Company covenants that it will not permit
Consolidated EBIT to be less than ($10,000,000) for any four fiscal quarter
period ending March 31, 2009, June 30, 2009, September 30, 2009 and December 31,
2009.
(e) Section
10B of the Note Agreement is hereby amended by adding the following definition
of “Consolidated EBIT” in the appropriate alphabetical order:
“Consolidated
EBIT” 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,
Consolidated Interest Charges and the 2008 Restructuring Charge.
(f) Section
10B of the Note Agreement is hereby amended by replacing the definitions of
“Consolidated EBITDA” in their entirety with the following:
“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, Consolidated Interest
Charges and the 2008 Restructuring Charge.
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) this Amendment shall have been duly
executed and delivered by the Company and each Noteholder and (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.
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 Agreement, 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 the Note Agreement, nor constitute a waiver of any provision
of the 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 the 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.
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 negotiations 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.
Payne__________________
Name:
Xxxxxxx X. Xxxxx
Title:
Executive Vice President
Finance & Administration
2001 NOTEHOLDERS:
THE PRUDENTIAL
INSURANCE COMPANY
OF
AMERICA
By: s/
Xxx X. White__________________
Title: 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.
White____________
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.
White_______________
Vice President
2007
NOTEHOLDERS:
THE PRUDENTIAL INSURANCE
COMPANY
OF AMERICA
By: s/ Xxx X.
White________________
Vice President
MUTUAL OF OMAHA 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.
White_______________
Vice President
PRUCO LIFE INSURANCE COMPANY
OF
NEW JERSEY
By: s/ Xxx X.
White_______________
Assistant Vice
President
PRUDENTIAL RETIREMENT
INSURANCE
AND ANNUITY COMPANY
By: Prudential
Investment Management, Inc.,
as investment manager
By:s/ Xxx X.
Whte_______________
Vice
President
