211552v3
21
211552v3
[Execution Copy]
211552v3
AMENDMENT NO.2
to
LOAN AND SECURITY AGREEMENT
dated as of August27, 1999
THIS AMENDMENT NO. 2 dated as of August 11, 2000 is made by and among WINSLOEW
FURNITURE, INC. a Florida corporation, WINSTON FURNITURE COMPANY OF ALABAMA,
INC., an Alabama corporation, LOEWENSTEIN, INC., a Florida corporation,
TEXACRAFT, INC., a Texas corporation, TROPIC CRAFT, INC., a Florida corporation,
WINSTON PROPERTIES, INC., an Alabama corporation, POMPEII FURNITURE CO., INC., a
Florida corporation, WABASH VALLEY MANUFACTURING, INC., an Indiana corporation
(collectively, the "Borrowers"), the financial institutions party to this
Agreement from time to time (the "Lenders"), XXXXXX FINANCIAL, INC. and CIBC
INC. as co-agents (each a "Co-Agent" and collectively, the "Co-Agents"), and
FLEET CAPITAL CORPORATION, a Rhode Island corporation, as administrative agent
(the "Administrative Agent") for the Lenders.
Preliminary Statements
The Borrowers, the Lenders, the Co-Agents and the Administrative Agent are
parties to a Loan and Security Agreement dated as of August 27, 1999, as amended
by Amendment No. 1 dated as of March 30, 2000 (as amended and in effect, the
"Loan Agreement"; terms defined therein and not otherwise defined herein being
used herein as therein defined). WinsLoew intends to acquire the outstanding
capital stock of Charter Furniture Corporation, a California corporation
("Charter"), pursuant to a Stock Purchase Agreement dated as of July 21, 2000
(the "Charter Purchase Agreement"), between WinsLoew and the stockholders of
Charter named therein (the "Charter Sellers"), a copy of which has been provided
to the Administrative Agent, and in accordance with the provisions of Sections
10.11 and 12.4 of the Loan Agreement. The Borrowers and the Lenders desire that
Charter become a "Borrower" under the Loan Agreement immediately upon
consummation of such Acquisition.
Accordingly, in consideration of the Loan Agreement, the Loans made by the
Lenders and outstanding thereunder, the mutual promises hereinafter set forth
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Loan Agreement. From and after the date hereof, subject
to satisfaction of the conditions set forth in Section 2, the Loan Agreement
shall be amended as follows:
(a) Section 1.1 Definitions is amended by adding thereto in appropriate
alphabetical order the following definition:
"Charter" means Charter Furniture Corporation, a California corporation and a
Wholly Owned Subsidiary of WinsLoew.
(b) Section 1.1 Definitions is further amended by amending the definition of
"Borrower" in its entirety to read as follows:
"Borrower" means each of WinsLoew, Winston, Loewenstein, Texacraft, Tropic
Craft, WPI, Pompeii, Wabash, Charter and each other Person a party to this
Agreement as a "Borrower," whether as of the Effective Date or as of a later
date pursuant to Section 6.2 or otherwise.
Section 2. Effectiveness of Amendment. This Amendment shall become effective as
of the date hereof on the first date (the "Amendment Effective Date") on which
the Administrative Agent has received each of the following, each in form and
substance satisfactory to the Administrative Agent (terms defined in the Loan
Agreement as amended by this Amendment being used in this Section 2 as so
defined) and in a number of copies (other than the allonges to the Notes)
sufficient for each Lender:
(a) 15 copies of this Amendment duly executed and delivered by each Borrower and
each Lender and Charter;
(b) an allonge to each Note outstanding under the Loan Agreement, duly executed
and delivered by Charter;
(c) an amendment to the WinsLoew Pledge Agreement duly executed and delivered by
WinsLoew as to the Charter shares acquired pursuant to the Charter Purchase
Agreement, together with any and all deliveries contemplated thereby;
(d) results of UCC, tax, and judgment lien searches in respect of Charter and
evidence, satisfactory to the Administrative Agent, that any Liens reflected
therein have been discharged or that the Administrative Agent is in possession
of appropriate releases permitting it to effect such discharge;
(e) Financing Statements signed by Charter in appropriate form for filing in
each jurisdiction in which such a filing is required to perfect the Security
Interest;
(f) any landlord or mortgagee Lien subordination or waiver agreements as the
Administrative Agent may request, duly executed and delivered by the respective
landlords or mortgagees;
(g) a copy of the opinion letter of the Charter Sellers' counsel delivered
pursuant to the provisions of the Charter Purchase Agreement, addressed to the
Administrative Agent and the Lenders or accompanied by a letter of such counsel
expressly permitting the Administrative Agent and the Lenders to rely on the
opinions expressed therein;
(h) an opinion of counsel for the Borrowers as to the due authorization,
execution and delivery of this Amendment and the other Loan Documents
contemplated hereby to be delivered in connection with the effectiveness hereof
by any Loan Party, as to the enforceability of this Amendment, the Loan
Agreement as amended hereby and such other Loan Documents, and such other
matters related to the Acquisition of Charter or such Loan Document as any
Lender through the Administrative Agent may reasonably request;
(i) a certificate of the Secretary of WinsLoew having attached thereto true and
correct copies of the Charter Purchase Agreement and each other agreement,
instrument, certificate and other document contemplated thereby to be delivered
in connection with the consummation of the transactions contemplated thereby;
(j) a certificate of the President of WinsLoew or a Financial Officer to the
effect that the Acquisition of Charter has been consummated substantially in
accordance with the terms of the Charter Purchase Agreement, without any waiver
or modification of any material provision thereof, that after giving effect
thereto and to this Amendment, the representations and warranties of the
Borrowers set forth in the Loan Agreement are true and correct in all material
respects (having attached to such certificate any modified Schedules required to
make such statement true), without limiting the generality of the foregoing, a
specific statement that the conditions set forth in Section 6.2 of the Loan
Agreement to the making of any Acquisition Loan, have been satisfied as of the
date of such certificate, and that no Default or Event of Default exists;
(k) the Administrative Agent shall have received evidence satisfactory to it
that the Trivest Investors have made an additional cash equity contribution to
WinsLoew in an amount not less than $1,500,000 and that individual sellers under
the Charter Purchase Agreement have continued/invested not less than $1,850,000
in WinsLoew in the form of roll-over equity; and
(l) such other agreements, certificates, instruments and other documents as any
Lender through the Administrative Agent may reasonably request (including,
without being limited to, a collateral assignment of WinsLoew's rights and
indemnities under the Charter Purchase Agreement) in connection with the
transactions contemplated hereby.
Section 3. Representations and Warranties. Each Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that it has the corporate
power and has taken all actions necessary to authorize it to execute and deliver
this Amendment and the other documents contemplated to be delivered by it
pursuant to this Amendment and to perform its obligations under the Loan
Agreement as amended by this Amendment and under such other documents; that this
Amendment has been and each such other document when executed and delivered by
such Borrower will have been, duly executed and delivered by such Borrower; and
that the Loan Agreement as amended hereby and each such other document,
constitute the legal, valid and binding obligations of such Borrower,
enforceable against such Borrower in accordance with their respective terms.
Section 4. Effect of Amendment. The conditions to the obligations of the Lenders
to make the Acquisition Loan in the original principal amount of $15,150,000
requested by the Borrowers in connection with the Charter Acquisition shall be
satisfied by the occurrence of the Amendment Effective Date. From and after the
effectiveness of this Amendment, all references in the Loan Agreement and in any
other Loan Document to "this Agreement," "the Loan Agreement," "hereunder,"
"hereof' and words of like import referring to the Loan Agreement, shall mean
and be references to the Loan Agreement as amended by this Amendment. Except as
expressly amended hereby, the Loan Agreement and all terms, conditions and
provisions thereof remain in full force and effect and are hereby ratified and
confirmed. 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 any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents. By its execution hereof, from and after the Amendment Effective Date,
Charter shall be a "Borrower" under the Loan Agreement for all purposes hereof
and Charter shall have confirmed for the benefit of the Lenders and the
Administrative Agent that it has received a copy of the Loan Agreement, confirms
the pledge and grant of a continuing security interest contained therein and
agrees to observe and be bound by all provisions thereof binding upon the
Borrowers (or any of them).
Section 5. Counterpart Execution: Governing Law.
-------------------------------------
(a) Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same agreement.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia.
[signatures appear on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
BORROWERS:
WINSLOEW FURNITURE, INC.
By:___________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx.
Vice President
WINSTON FURNITURE COMPANY OF ALABAMA, INC
By:___________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx.
Vice President
LOEWENSTEIN, INC.
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx.
Vice President
TEXACRAFT INC.
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx.
Vice President
TROPIC CRAFT INC
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx
Vice President
WINSTON PROPERTIES, INC.
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx
Vice President
POMPEII FURNITURE CO., INC.
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx
Vice President
WABASH VALLEY MANUFACTURING, INC.
By: __________________________________________________________
Xxxxxxx X. Xxxxxxxxx, Xx
Vice President
Accepted and agreed:
CHARTER FURNITURE CORPORATION
By: __________________________________________________________
Name: __________________________________________________
Title: _________________________________________________
ADMINISTRATIVE AGENT:
FLEET CAPITAL CORPORATION
By: __________________________________________________________
Xxxxxx Xxxxx
Senior Vice President
CO- AGENT:
CIBC INC.
By: __________________________________________________________
Name:
Title
CO-AGENT:
XXXXXX FINANCIAL, INC.
By: __________________________________________________________
Name:
Title:
LENDERS:
FLEET CAPITAL CORPORATION
By: __________________________________________________________
Xxxxxx Xxxxx
Senior Vice President
ANTARES CAPITAL CORPORATION
By: __________________________________________________________
Name:
Title:
BANK LEUMI LE ISRAEL BM MIAMI
By: __________________________________________________________
Name:
Title:
CHASE MANHATTAN BANK, as trustee of the Antares Funding Trust created under the
Trust Agreement dated as of November 30, 1999
By: __________________________________________________________
Name:
Title:
CIBC INC.
By: __________________________________________________________
Name:
Title:
COMERICA BANK
By: __________________________________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: __________________________________________________________
Name:
Title:
GMAC BUSINESS CREDIT, LLC
By: __________________________________________________________
Name:
Title:
XXXXXX FINANCIAL, INC.
By: __________________________________________________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By: __________________________________________________________
Name:
Title:
WACHOVIA BANK, N.A.
By: __________________________________________________________
Name:
Title:
