Exhibit 10.15
OMNIBUS AMENDMENT
This Omnibus Amendment, dated as of May 15, 2002 (this "Amendment"), is
among XXXX FURNITURE, INC., a Virginia corporation ("Xxxx Furniture"), THE XXXX
COMPANIES, a Nevada corporation ("Xxxx Companies"), THE XXXXXXXX GOLD CO., a
North Carolina corporation, XXXX PROPERTIES, INC., a California corporation,
STOREHOUSE, INC., a Georgia corporation, HOME ELEMENTS, INC., a Virginia
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 Lessor, the Lenders and the Agent
are parties to 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 (the "Master Agreement").
2. The Lessor, Xxxx Furniture and certain subsidiaries of Xxxx Furniture
that may become parties thereto are parties to that certain Master Lease
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 (the
"Lease").
3. The Lessor and Xxxx Furniture are parties to that certain Construction
Agency 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 (the "Construction Agency Agreement").
4. The Lessor, the Lenders and the Agent are parties to that certain Loan
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 (the
"Loan Agreement")
5. The parties hereto desire to amend the Master Agreement, the Lease and
the Loan Agreement in certain respects as set forth herein.
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. The Master Agreement is hereby amended by deleting
Section 5.1(k) thereof in its entirety. The parties hereto hereby agree that the
covenants and continuing agreements set forth in Section 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 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 following definition shall be added to Appendix A, 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
Elements, Inc., Xxxx Furniture Wood Products, Inc., Xxxx Properties, Inc.,
Storehouse, Inc., Xxxx Furniture, Inc., The Xxxxxxxx Gold Co., the various
financial institutions party thereto and Fleet Capital Corporation, as
Agent.
SECTION 3. Indemnity. Section 7.6 of the Master Agreement is hereby deleted
in its entirety.
SECTION 4. Basic Rent. The definition of "Basic Rent" that appears in
Appendix A is hereby amended by adding the following clause at the end thereof:
", plus (C) the Amortization Amount for such Payment Date".
Appendix A is further amended by adding the following definitions thereto,
in appropriate alphabetical order:
"Amortization Amount" means, with respect to (1) any Monthly Payment
Date, (i) $22,500 for each Monthly Payment Date occurring prior to December
1, 2002 and (ii) $45,000 for each Monthly Payment Date occurring on or
after December 1, 2002. (2) any Free Cash Mandatory Payment Date, an amount
equal to 45% of the Free Cash Flow for the fiscal quarter related to such
Free Cash Mandatory Payment Date, provided, however, that the Lessees shall
not be required to make a payment pursuant to the foregoing clause (2) to
the extent that, after giving effect to such payment, (a) the Consolidated
Fixed Charge Coverage Ratio (as defined in the Fleet Loan Agreement as in
effect on the date of the
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Omnibus Amendment) calculated for the related Calculation Period would be
less than 1.10 to 1.00 or (b) the Availability, as defined in the Fleet
Loan Agreement, as in effect on the date of the Omnibus Amendment is less
than $8,000,000, and (3) for the Reserve Payment Date, the Sylmar Escrow
Prepayment of $225,000; and provided, further, that once the Amortizing
Portion of the Funded Amounts has been reduced to zero, the Amortization
Amount for any Payment Date shall be zero.
"Amortizing Portion" means, as of any date, the aggregate Funded
Amounts outstanding on such date, minus the Non-Amortizing Portion
(provided that such amount shall never be less than zero). The Amortizing
Portion as of the date of the Omnibus Amendment, and after giving effect to
the payments contemplated thereby, is $8,220,962.81, and shall not
increase.
"Calculation Period" means (i) for the fiscal quarter ending on the
date closest to May 31, 2002, the fiscal quarter ending on such date, (ii)
for the fiscal quarter ending on the date closest to August 31, 2002, the
two consecutive fiscal quarters ending on that date, (iii) for the fiscal
quarter ending on the date closest to November 30, 2002, the three
consecutive fiscal quarters ending on that date and (iv) for any fiscal
quarter ending on a date after November 30, 2002, the four consecutive
fiscal quarters ending on that date.
"Free Cash Flow" means, for any fiscal quarter, an amount equal to (A)
(1) the sum of (i) Consolidated EBITDA (as defined in the Fleet Loan
Agreement as in effect on the date of the Omnibus Amendment) for such
quarter, minus (ii) Capital Expenditures paid during such quarter, minus
(iii) cash tax payments made during such quarter, divided by (2) 1.1, minus
(B) the Consolidated Fixed Charges (as defined in the Fleet Loan Agreement
as in effect on the date of the Omnibus Amendment) for such fiscal quarter.
"Free Cash Mandatory Payment Date" means the earlier of 10 days after
the delivery by Xxxx Companies of its financial statements for any fiscal
quarter and 55 days (or 100 days in the case of the last fiscal quarter of
each fiscal year) after the end of each fiscal quarter, commencing with the
fiscal quarter ending on the date closest to May 31, 2002.
"Monthly Payment Date" means (i) the first Business Day of each
calendar month, commencing with June 1, 2002 and (ii ) the date of the
Omnibus Amendment.
"Non-Amortizing Portion" means an amount equal to $15,251,660.90,
which shall not be decreased unless the Funded Amounts are paid in full on
or after the date due.
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"Omnibus Amendment" means that certain Omnibus Amendment, dated as of
May 15, 2002, among Xxxx Furniture, the Guarantors, the Lessor, the Lenders
and the Agent.
"Reserve Payment Date" means the earlier of (i) June 15, 2002 and (ii)
the date all of the funds subject to the Sylmar Escrow are released.
"Sylmar Escrow" means the escrow of $500,000 of the proceeds of the
refinancing of the property owned by Xxxx Furniture, or any of the
Guarantors, or any Subsidiary of any of the foregoing, located at 00000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx, which escrow is to secure the payment
of certain repairs to the extent such repairs relate to conditions existing
on the date of the Omnibus Amendment, but excluding an additional escrow
for roof repairs and skylight repairs in the amount of $215,058.75.
"Sylmar Escrow Prepayment" means the payment of $225,000 from the
Sylmar Escrow to be made on the Reserve Payment Date as provided in the
definition of Amortization Amount.
SECTION 5. Base Term. The definition of "Base Term" that appears in
Appendix A is hereby amended by deleting the phrase "August 27, 2004" where it
appears in clause (a) thereof and substituting therefor the phrase "the earlier
of (i) December 1, 2003 and (ii) the date of any sale, transfer or other
disposition of The Xxxxxxxx Gold Co., whether by stock or asset sale, or of any
division of Xxxx Furniture's business (other than mergers or consolidations of
any Subsidiary of Xxxx Furniture with another Subsidiary of Xxxx Furniture).
SECTION 6. Remarketing Option. Section 14.6 of the Lease is hereby deleted
in its entirety. Any reference in the Operative Documents to the Remarketing
Option shall be of no force or effect. Xxxx Furniture hereby unconditionally
agrees that it shall be obligated to exercise the Purchase Option pursuant to
Section 14.1 of the Lease on the Lease Termination Date. The definition of
"Recourse Deficiency Amount" set forth in Appendix A is hereby deleted in its
entirety.
SECTION 7. 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 Lender's pro rata share of the Non-Amortizing Portion of
the Funded Amounts shall bear interest during each Rent Period at a rate equal
to the sum of the Prime Rate, computed using the actual number of days elapsed
in a 360 day year, plus (ii) 1.00% per annum. Each Lender's pro rata share of
the Amortizing Portion of the Funded Amounts shall bear interest during each
Rent Period at a rate equal to the sum of (i) the Prime Rate computed using the
actual number of days elapsed in a 360 day year plus (ii) 3.00% per annum, until
the date upon which the Amortizing Portion has been reduced to $6,323,000 or
less, 2.00% per annum until the date upon which the Amortizing Portion has been
reduced to $4,073,000 or less, and 1.00% per annum thereafter.
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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 (it being understood that the Lessor's Invested Amount shall
be allocated on a pro rata basis to the Amortizing Portion and the
Non-Amortizing Portion).
Notwithstanding anything to the contrary set forth in the Operative
Documents, LIBOR Advances shall not be available; all of the Funded Amounts
shall be Prime Rate Advances.
The definition of "Rent Period" that appears in Appendix A is hereby
amended by deleting it in its entirety and substituting therefor the following:
"Rent Period" means each period from, and including, a Monthly Payment
Date, to, but excluding, the next succeeding Monthly Payment Date.
The definition of "Payment Date" that appears in Appendix A is hereby
amended by deleting it in its entirety and substituting therefor the following:
"Payment Date" means each Monthly Payment Date, each Free Cash
Mandatory Payment Date and the Reserve Payment Date.
SECTION 8. Distribution of Rent Payments. Section 3.1(a) of the Loan
Agreement is hereby amended by adding the following sentence at the beginning
thereof: "Each payment of an Amortization Amount with respect to any Leased
Property received by the Agent shall be distributed to the Funding Parties on a
pro rata basis (based on such party's outstanding Funded Amount) to be applied
to reduce such Funding Party's Funded Amount; all payments of Amortization
Amounts shall be applied to reduce the Amortizing Portion." The second sentence
of Section 3.1(a) of the Loan Agreement is hereby amended by adding the phrase
"that does not constitute an Amortization Amount" after the phrase "payment of
Basic Rent" where it appears therein.
Sections 3.3 and 3.4 of the Loan Agreement are hereby deleted in their
entirety.
Section 3.5(a) of the Loan Agreement is hereby amended by(i) deleting the
word "Lenders" where it appears in clause second thereof and substituting
therefor the phrase "Funding Parties", (ii) deleting clause third thereof in its
entirety and (iii) changing clause fourth to clause third.
SECTION 9. Cross Default. Paragraph (e) of Article XII of the Lease is
hereby amended by deleting the text thereof in its entirety, and substituting
therefor the following: "Any Obligor shall default in any payment of principal
of, or interest on, any Indebtedness or in the payment of any Guarantee
Obligation beyond the period of grace (not to exceed 30 days), if any, provided
in the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created, or default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee Obligation
or contained in any
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instrument or agreement evidencing, securing or related thereto, and the effect
of such default is to cause, or to permit the holder of such Indebtedness or
Guarantee Obligation to cause, such Indebtedness to become due or require to be
purchased, redeemed or otherwise defeased prior to its stated maturity;".
SECTION 10. Construction Agency Agreement. The parties hereto hereby
acknowledge that the construction of all of the Leased Properties has been
completed and that, therefore, the terms and provisions of the Construction
Agency Agreement are no longer in effect.
SECTION 11. Payment on the Date Hereof. On the date hereof, the Lessee
shall make a payment to the Agent in the amount of $1,527,370.29, plus the
Amortization Amount due on the date hereof, which amount shall be distributed to
the Funding Parties, on a pro rata basis, for application to their Funded
Amounts.
SECTION 12. Prepayment. Section 2.6 of the Loan Agreement is hereby amended
by deleting the phrase "a Construction Failure Payment" where it appears therein
and substituting therefor the phrase "an Amortization Amount".
SECTION 13. Reaffirmation of Guaranty. Each Guarantor hereby affirms that
the Guaranty remains in full force and effect, and that such Guaranty continues
to be secured by the collateral pledged in connection therewith, after giving
effect to this Amendment.
SECTION 14. Subordinated Liens. Notwithstanding anything to the contrary in
the Operative Documents, the Funding Parties hereby consent to the granting by
Lessee of a Lien on its interest in the Leased Properties to secure its
obligations under the Fleet Loan Agreement and the Amended and Restated Credit
Agreement, dated as of May 15, 2002, with Bank of America, N.A., provided that
such Lien is subject and subordinate to the Lease and the other Operative
Documents in a manner, and pursuant to documentation, reasonably satisfactory to
the Agent.
SECTION 15. Sole Lender. As of the date of this Amendment, SunTrust Bank is
the sole Lender.
SECTION 16. 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.
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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. Secretary
THE XXXX COMPANIES, as a Guarantor
By: /s/ Xxxxx X. Angle
-----------------------------------
Name Printed: Xxxxx X. Angle
Title: Vice President-Treasury ______
THE XXXXXXXX GOLD CO. as a Guarantor
By: /s/ Xxxxx X. Angle
-----------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Secretary
XXXX PROPERTIES, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-----------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Secretary
STOREHOUSE, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-----------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Secretary
OMNIBUS AMENDMENT
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HOME ELEMENTS, INC., as a Guarantor
By: /s/ Xxxxx X. Angle
-----------------------------------
Name Printed: Xxxxx X. Angle
Title: Asst. Secretary
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. Secretary
SUNTRUST BANK, as Lender and as Agent
By: /s/ Illegible
-----------------------------------
Name Printed:
-------------------------
Title:
--------------------------------
ATLANTIC FINANCIAL GROUP, LTD.,
as Lessor
By: Atlantic Financial Managers, Inc.,
its General Partner
By:
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Name Printed:
---------------------
Title:
----------------------------
OMNIBUS AMENDMENT
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HOME ELEMENTS, INC., as a Guarantor
By:
-----------------------------------
Name Printed:
-------------------------
Title:
--------------------------------
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
OMNIBUS AMENDMENT
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