AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENTS
EXHIBIT
4.1
XXXXXXX FURNITURE COMPANY, INC.
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 October 12, 2007, by and among Xxxxxxx Furniture
Company, Inc. (the “Company”), 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”).
WITNESSETH:
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 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, restated, supplemented
or
otherwise modified from time to time the “2007 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, Pruco, PRIAC, Hartford, Mutual
and Medica agree that the 2007 Note Agreement is amended as
follows:
1. Amendment.
The
definition of “Consolidated Net Earnings”
set forth in Section 10B of the Note Agreements is hereby amended by replacing
such definition in its entirety with the following:
“Consolidated
Net
Earnings” shall mean, for any applicable period, for the Company
and its Subsidiaries on a Consolidated basis, the excess of (a) gross revenues
(including, but not limited to, any and all proceeds received in
connection with the Continued Dumping and Subsidy Offset Act of 2000) over
(b)
all expenses and charges of a proper character (including current and deferred
taxes on income and current additions to reserves) each for the applicable
period, but (x) excluding from expenses and charges for the applicable period
(A) a one time charge of $6,600,000 taken in the second quarter of the 2007
fiscal year in connection with the termination of the Company’s defined benefit
pension plan and (B) a one time restructuring charge of up to $6,000,000 to
be
taken no later than the 2009 fiscal year in connection with the conversion
of
the Company’s Martinsville, Virginia facility from a manufacturing facility to a
warehouse facility and (y) not including in gross revenues:
(i) any
gains (net of expenses and taxes applicable thereto) in excess of losses
resulting from the sales, conversions or other dispositions of capital assets
outside the ordinary course of business,
(ii) any
gains resulting from the write-up of assets,
(iii) any
earnings or deferred credit (or amortization of a deferred credit) of any Person
acquired by the Company or any Subsidiary through purchase, merger or
consolidation or otherwise for any year prior to the year of acquisition not
included in gross revenues under generally accepted accounting
principles,
(iv) any
deferred credit representing the excess of equity in any Subsidiary of the
Company at the date of acquisition over the cost of the investment in such
Subsidiary,
(v) proceeds
of life insurance policies on any Responsible Officer exceeding $250,000 for
such period,
(vi) gains
arising from the acquisition of debt securities for a cost less than the
principal amount and accrued interest,
(vii) extraordinary
items or transactions of a non-recurring or non-operating and material nature
or
arising from gains or sales relating to the discontinuance of operations,
or
(viii) any
portion of the net earnings (included in the determination of such Consolidated
Net Earnings or such Consolidated Net Loss) of any Subsidiary which for any
reason shall be unavailable for payment of dividends to the
Company,
all
as determined
in accordance with generally accepted accounting principles.
If
the above calculation results in an amount less than zero, then for such period
there shall be a “Consolidated Net Loss” as determined
below.
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 10B 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.
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.
XXXXXXX FURNITURE COMPANY, INC.
| By: /s/ Xxxxxxx X. Xxxxx | ||
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Exective Vice-President - Finance & Adminstration |
The
foregoing Agreement is
hereby
accepted as
of the date
first
above
written.
|
THE
PRUDENTIAL INSURANCE COMPANY OF
AMERICA
|
| By: /s/ Xxx X. Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Vice President |
| HARTFORD LIFE INSURANCE COMPANY |
| By: Prudential Private Placement Investors, LP |
| (as Investment Advisor) |
| By: Prudential Private Placement Investors, Inc. |
| (as its General Partner) |
| By: /s/ Xxx X. Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Vice President |
| MEDICA HEALTH PLANS |
| By: Prudential Private Placement Investors, LP |
| (as Investment Advisor) |
| By: Prudential Private Investment Investors, Inc. |
| (as its General Partner) |
| By: /s/ Xxx X. Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Vice President |
| PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY |
| By: /s/ Xxx X.Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Assistant Vice President |
| PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY |
| By: Prudential Investment Management, Inc., |
| as investment manager |
| By: /s/ Xxx X. Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Vice President |
| MUTUAL OF OMAHA INSURANCE COMPANY |
| By: Prudential Private Placement Investors, |
| LP (as Investment Advisor) |
| By:Prudential Private Placement Investors, Inc. |
| (as its General Partner) |
| By: /s/ Xxx X. Xxxxx |
| Name: Xxx X. Xxxxx |
| Title: Vice President |
