Exhibit 10.16
SECOND OMNIBUS AMENDMENT
This Second Omnibus Amendment, dated as of December 1,2003 (this
"Amendment"), is among XXXX FURNITURE, INC., a Virginia corporation ("Xxxx
Furniture"), THE XXXX COMPANIES, a Nevada corporation ("Xxxx Companies"), XXXX
PROPERTIES, INC., a California corporation, STOREHOUSE, INC., a Georgia
corporation, XXXX DIVERSIFIED, INC., a Delaware corporation, and XXXX FURNITURE
WOOD PRODUCTS, INC. (formerly known as The Wexford Collection, Inc.), a
California corporation ("Guarantors"). ATLANTIC FINANCIAL GROUP, LTD., a Texas
limited partnership (the "Lessor"), certain financial institutions parties
hereto as a lender (individually, a "Lender" and collectively, the "Lenders")
and SUNTRUST BANK (as successor to Crestar Bank), a Georgia banking corporation,
as agent for the Lenders (in such capacity, the "Agent").
BACKGROUND
1. Xxxx Furniture, the Guarantors, The Xxxxxxxx Gold Co. (subsequently
released from its obligations thereunder), the Lessor, the Lenders and the Agent
entered into that certain Master Agreement, dated as of August 27,1999, as
amended by the First Modification to Synthetic Lease Financing Operative
Documents, dated as of October 11, 2000, and by the Omnibus Amendment, dated as
of May 15,2002 (the "Master Agreement").
2. The parties hereto desire to amend the Master Agreement and certain of
the other Operative Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1 Definitions. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the Master
Agreement.
SECTION 2. Covenants From Fleet Loan Agreement. The parties hereto hereby
agree that the covenants and continuing agreements set forth in Sections 9.2.9
and 9.3 of the Fleet Loan Agreement (as hereinafter defined), together with the
defined terms used therein, each as in effect on the date hereof, are hereby
incorporated by reference as if fully set forth herein. In the event that the
Fleet Loan Agreement is amended or terminated after the date hereof, Xxxx
Furniture shall promptly notify the Agent thereof in writing, which notice shall
be accompanied by the form of such amendment or of any replacement loan or
credit agreement, as applicable. If requested by the Required Funding Parties,
those portions of the amendment to, or replacement of, the Fleet Loan Agreement
as are designated by the Required Funding Parties shall amend or replace the
covenants incorporated herein by reference. Unless amended or replaced pursuant
to the foregoing sentence, or otherwise with the written agreement of the
Required Funding Parties, the covenants and definitions incorporated herein by
reference shall be those covenants and
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definitions as they exist on the date of this Amendment, and shall continue as
such, notwithstanding any subsequent amendment or waiver thereof, or any
subsequent termination of the Fleet Loan Agreement.
The definition of "Fleet Loan Agreement" set forth in Appendix A to the
Master Agreement is hereby deleted, and the following shall be substituted
therefore, in appropriate alphabetical order:
"Fleet Loan Agreement" means the Loan and Security Agreement, dated as of
May 15,2002, among The Xxxx Companies, Xxxx Diversified, Inc., Xxxx
Furniture Wood Products, Inc., Xxxx Properties, Inc., Storehouse, Inc.,
Xxxx Furniture, Inc., The Xxxxxxxx Gold Co. (subsequently released from its
obligations thereunder), the various financial institutions party thereto
and Fleet Capital Corporation, as Agent, as amended by that certain letter
amendment dated as of June 17, 2002, the Second Amendment to Loan and
Security Agreement dated October 10,2002, the Third Amendment to Loan and
Security Agreement dated February 28,2003, the Fourth Amendment to Loan and
Security Agreement dated April 2,2003 and the Fifth Amendment to Loan and
Security Agreement dated as of November30,2003.
SECTION 3 Amoritization Amount. The definition of "Amoritization Amount"
that appears in Appendix A is hereby amended by deleting it in its entirety, and
substituting therefore the following: "Amortization Amount" means, with respect
to each Monthly Payment Date $72,300.
The definitions of "Amortizing Portion", "Free Cash Flow", "Free Cash
Mandatory Payment Date", "Non-Amortizing Portion", "Reserve Payment Date",
"Sylmar Escrow" and "Sylmar Escrow Prepayment" set forth in Appendix A are
hereby deleted.
SECTION 4 Base Term. The definition of "Base Term" that appears in Appendix
A is hereby amended by deleting the text of clause (a) thereof and substituting
therefor the date "December 1,2008".
SECTION 5 Interest. Yield. Section 2.4(a) of the Loan Agreement is hereby
amended by deleting the text thereof in its entirety and substituting therefor
the following: "Each Loan shall bear interest during each Rent Period at a rate
equal to the sum of (i) the Adjusted LIBOR Rate for such Rent Period, plus (ii)
the Applicable Margin per annum, computed using the actual number of days
elapsed and a 360-day year."
The Lessor Side Letter is hereby amended to provide that Yield on the
Lessor's Invested Amount shall be calculated at the same rate as the interest
rate on the Loans.
Notwithstanding anything to the contrary set forth in the Operative
Documents, all of the Funded Amounts shall be LIBOR Advances.
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Each of the definitions of "Applicable Margin", "Monthly Payment Date" and
"Payment Date" that appears in Appendix A is hereby amended by deleting it in
its entirety and substituting therefor the following:
"Applicable Margin" means with respect to each day for each LIBOR Advance
the applicable percentage set forth below for the corresponding Consolidated
Leverage Ratio (as defined in the Fleet Loan Agreement) as most recently
determined based on Xxxx Companies' most recent audited annual or unaudited
quarterly consolidated financial statements, tested each quarter on a rolling
four quarter basis:
Applicable Margin for LIBOR Advances
-----------------------------------------------
Consolidated Leverage Ratio Applicable Margin
--------------------------- -----------------
>3.75 4.00%
<=3.75 3.75%
<=3.25 3.50%
<=2.75 3.25%
<=2.25 3.00%
<=1.75 2.75%
Notwithstanding the foregoing, until receipt by the Agent of Xxxx Companies'
audited financial statements for the 2003 fiscal year, the Applicable Margin
shall be 4.00%.
"Monthly Payment Date" means the first Business Day of each calendar month.
"Payment Date" means each Monthly Payment Date.
SECTION 6 Default. Article XII of the Lease is hereby amended by (i)
deleting the period after paragraph (m) thereof and substituting therefore
";or" and (ii) adding an additional paragraph thereto as follows: "(n) the Fleet
Loan Agreement is terminated or is not renewed at its scheduled maturity date
(unless such credit facility is refinanced upon substantially the same terms and
conditions with a comparable lender and extended through the conclusion of the
Base Term), or the Borrowers (as defined in the Fleet Loan Agreement) have less
than $3,000,000 in availability under (and as defined in) the Fleet Loan
Agreement."
SECTION 7 Prepayment. As of December 1,2003, the Lessee shall make a
payment to the Agent in the amount of $1,304,326.90, so that, after giving
effect thereto, the outstanding Funded Amounts shall be equal to $13,000,000.
The Agent shall distribute such payment to the Funding Parties, on a pro rata
basis, for application to their outstanding Funded Amounts.
SECTION 8 Modification Fee. As of December 1,2003, the Lessee shall pay to
the Agent, for its own account, a modification fee in the amount of $130,000.
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SECTION 9 Document Deliveries. The Lessee shall promptly deliver to the
Agent the following, each of which shall be satisfactory in form and substance
to the Agent: (i) the certificate of the secretary or an assistant secretary of
the Lessee and of the Guarantors certifying to the incumbency of the officers
executing this Amendment and attaching resolutions of each of such Persons
authorizing the execution and delivery hereof and (ii) an opinion of counsel to
the Lessee and the Guarantors.
XXXXXXX 00 Reaffirmation of Guaranty. Each Guarantor hereby represents,
warrants and affirms that, after giving effect to this Amendment (i) the
Guaranty remains in full force and effect and guaranties all of the payment and
performance obligations of Xxxx Furniture under the Operative Documents, and
(ii) the Guaranty continues to be secured by the collateral pledged in
connection therewith.
SECTION 11 Representations. The Lessee hereby represents, warrants and
affirms that, after giving effect to this Amendment, (i) no Event of Default or
Potential Event of Default has occurred and is continuing, (ii) the Operative
Documents remain in full force and effect and (iii) the deeds of trust executed
by Xxxx Furniture and dated May 15, 2001 with respect to properties in
Christiansburg, Virginia, Salem, Virginia and Xxxxxx County, Missouri remain in
full force and effect and secure all of the obligations of the Lessee under the
Operative Documents.
SECTION 12 Miscellaneous. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Virginia. This
Amendment may be executed by the parties hereto in separate counterparts
(including by facsimile) each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same agreement. Each of the Master Agreement, the Lease and the Loan Agreement,
as amended hereby, remains in full force and effect. Any reference to the Master
Agreement, the Lease or the Loan Agreement from and after the date hereof shall
be deemed to refer to the Master Agreement, the Lease or the Loan Agreement, as
the case may be, as amended hereby, unless otherwise expressly stated. Xxxx
Furniture shall promptly pay, or shall reimburse the Agent for, all
out-of-pocket costs and expenses incurred by the Agent in connection with this
Amendment, including, without limitation, reasonable legal fees and expenses,
appraisal costs and environmental assessment fees and expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the year first above
written.
XXXX FURNITURE, INC., as Lessee
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Sec.
THE XXXX COMPANIES, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: VP Treasury MGMT
Title: Xxxxx X. Angle
XXXX PROPERTIES, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Sec.
STOREHOUSE, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Sec.
Second Omnibus Amendment
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XXXX DIVERSIFIED, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: Xxxxx X. Angle
Title: Treasurer
XXXX FURNITURE WOOD PRODUCTS, INC.,
as a Guarantor
By: /s/ Xxxxx X. Angle
-------------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Sec.
SUNTRUST BANK, as Lender and as Agent
By: /s/ Illegible
-------------------------------------
Name Printed: Illegible
---------------------------
Title: SVP
ATLANTIC FINANCIAL GROUP, LTD., as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:
---------------------------------
Name Printed:
-----------------------
Title:
------------------------------
Second Omnibus Amendment
6
XXXX DIVERSIFIED, INC., as a Guarantor
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
XXXX FURNITURE WOOD PRODUCTS, INC., as a
Guarantor
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
SUNTRUST BANK, as Lender and as Agent
By:
-------------------------------------
Name Printed:
---------------------------
Title:
----------------------------------
ATLANTIC FINANCIAL GROUP, LTD., as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name Printed: Xxxxxxx X. Xxxxxxxxxx
Title: President
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As of December 1,2003
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated May 15, 2002 (as
amended from time to time, the "Loan Agreement"), among The Xxxx Companies, Xxxx
Diversified, Inc., Xxxx Furniture Wood Products, Inc., Xxxx Properties, Inc.,
Storehouse, Inc. and Xxxx Furniture, Inc. (Home Elements, Inc. having been
merged with and into Storehouse, Inc. and all of the capital stock of The
Xxxxxxxx Gold Co. having been divested by The Xxxx Companies) (hereinafter
referred to individually as a "Borrower" and collectively as "Borrowers"), the
various financial institutions party thereto as lenders (collectively,
"Lenders") and Fleet Capital Corporation, a Rhode Island corporation in its
capacity as collateral and administrative agent for the Lenders (together with
its successors in such capacity, "Agent"). Capitalized terms herein, unless
otherwise defined herein, shall have the meanings ascribed to them in the Loan
Agreement.
Agent and Lenders hereby consent to Borrowers' execution and delivery of
the Second Omnibus Amendment (and performance in accordance therewith) in the
form annexed hereto as Exhibit A and acknowledge and agree that the execution
and delivery thereof by Borrowers shall not constitute a Default or an Event of
Default under the Loan Agreement or other Loan Documents. Agent and Lenders
further acknowledge and agree that the terms of such Second Omnibus Amendment
(which, among other things, provide for the extension of the term of the
SunTrust Lease through December 1,2008 and allow for an accelerated cash payment
of $1,304,326.90 and an increased Amortization Amount (as such term is defined
in the SunTrust Lease) of $72,300) are acceptable to Agent and Lenders for
purposes of Sections 9.2.22 and 11.1.19 of the Loan Agreement.
By their signatures hereinbelow, each Borrower acknowledges and agrees with
Agent and Lenders as follows:
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
As of December 1,2003
Page 2
(i) other than the SunTrust Lease Documents and the SunTrust Swap
Documents, none of the Existing Lender Loan Documents are in effect as of
the date hereof;
(ii) other than that portion of the Existing Lender Obligations owing
by Borrowers under, and evidenced or secured by, the SunTrust Lease
Documents and the SunTrust Swap Documents, all of the Existing Lender
Obligations have been indefeasibly paid in full;
(iii) Borrowers no longer are required to make any Cash Flow Recapture
payments;
(iv) Section 9.2.21 of the Loan Agreement shall be of no further force
or effect;
(v) the consent of Agent and Lenders set forth herein is granted to
each Borrower in this particular instance in light of the facts and
circumstances that presently exist; and
(vi) Agent's and Lenders' consent as herein granted shall not
constitute (a) except as herein provided, a waiver of, or affect or
diminish in any way, any of Agent's or Lenders' rights under the Loan
Documents, (b) except as herein provided, an amendment, modification or
alteration of the Loan Agreement or the other Loan Documents, and (c) a
course of dealing or a waiver of Agent's or each Lender's right to withhold
its consent for any similar request in the future.
Agent and Lenders hereby acknowledge and agree that SunTrust Bank, a
Georgia banking corporation, is an intended third-party beneficiary hereof for
purposes of Sections 4(b) and 21 of the Intercreditor Agreement.
This letter agreement shall be governed by and construed in accordance with
the internal laws of the State of Georgia. This letter agreement may be executed
in any number of counterparts or by different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original but
all such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed an original
signature hereto. To the fullest extent permitted by Applicable Law, the parties
hereto each hereby waives the right to trial by jury in any action, suit,
counterclaim or proceeding arising out of or related to this letter agreement.
Very truly yours,
[Signatures on following page]
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
As of December 1, 2003
Page 3
FLEET CAPITAL CORPORATION, as Agent
By:
-------------------------------------
Title:
------------------------------
FLEET CAPITAL CORPORATION, as a Lender
By:
-------------------------------------
Title:
------------------------------
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as Lender
By:
-------------------------------------
Title:
------------------------------
Accepted, acknowledged and agreed to as
of December 1, 2003.
THE XXXX COMPANIES
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
XXXX DIVERSIFIED INC.,
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
[Signatures continued on following page]
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
As of December 1, 2003
Page 4
XXXX FURNITURE WOOD PRODUCTS, INC.
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
XXXX PROPERTIES, INC.
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
STOREHOUSE, INC.
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
XXXX FURNITURE, INC.
By: /s/ Illegible
-------------------------------------
Title:
------------------------------
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
As of December 1, 2003
Page 3
FLEET CAPITAL CORPORATION, as Agent
By: /s/ Illegible
-------------------------------------
Title: Senior Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Illegible
-------------------------------------
Title: Senior Vice President
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as Lender
By:
-------------------------------------
Title:
------------------------------
Accepted, acknowledged and agreed to as
of December 1, 2003.
THE XXXX COMPANIES
By:
-------------------------------------
Title:
------------------------------
XXXX DIVERSIFIED, INC.
By:
-------------------------------------
Title:
------------------------------
[Signatures continued on following page]
The Xxxx Companies
Xxxx Diversified, Inc.
Xxxx Furniture Wood Products, Inc.
Xxxx Properties, Inc.
Storehouse, Inc.
Xxxx Furniture, Inc.
As of December 1, 2003
Page 3
FLEET CAPITAL CORPORATION, as Agent
By:
-------------------------------------
Title:
------------------------------
FLEET CAPITAL CORPORATION, as a Lender
By:
-------------------------------------
Title:
------------------------------
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as Lender
By: /s/ Illegible
-------------------------------------
Title: Vice President and
Senior Counsel
Accepted, acknowledged and agreed to as
of December 1, 2003.
THE XXXX COMPANIES
By:
-------------------------------------
Title:
------------------------------
XXXX DIVERSIFIED, INC.
By:
-------------------------------------
Title:
------------------------------
[Signatures continued on following page]
