[Execution Copy]
184023v3
AMENDMENT NO. 1
to
LOAN AND SECURITY AGREEMENT
dated as of August 27, 1999
THIS AMENDMENT NO. 1 dated as of March 30, 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 (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,
"Co-Agents"), and FLEET CAPITAL CORPORATION, a Rhode Island corporation, as
administrative agent (the "Administrative Agent") for the Lenders, agree as
follows:
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
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 Wabash Valley Manufacturing, Inc., an
Indiana corporation ("Wabash"), pursuant to a Stock Purchase Agreement dated as
of March __, 2000 (the "Wabash Purchase Agreement"), between WinsLoew and the
stockholders of Wabash named therein, 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 and the consent of the Lenders dated February 24,
2000. The Borrowers and the Lenders desire that Wabash become a "Borrower" under
the Loan Agreement immediately upon consummation of such Acquisition.
The Borrowers have also requested the Lenders' and the Administrative Agent's
consent to (1) WPI's borrowing the proceeds of a series of The Industrial
Development Board of the City of Haleyville (the "IDB") bonds intended to be
issued on or about May 15, 2000 (the "Bonds") in an original principal amount
not to exceed $4,000,000, such proceeds to be applied to reimburse WPI for WPI's
acquisition of certain Real Estate and to pay Equipment purchase costs and (2)
an increase of $4,000,000 in the credit facilities governed by the Loan
Agreement to support the issuance by Fleet National Bank of a Letter of Credit
in a face amount not to exceed $4,000,000 for the benefit of the trustee for the
Bonds to support WPI's obligations to the IDB under the loan agreement between
them.
Finally, in connection with the resignation of BankBoston, N.A. as
Administrative Agent and the appointment of Fleet Capital Corporation ("FCC") as
successor Administrative Agent, certain amendments to the Loan Agreement are
desirable to reflect FCC's corporate status.
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 3, the Loan Agreement
shall be amended as follows:
(a) Section 1.1 Definitions is amended by adding thereto in appropriate
alphabetical order the following definitions:
(i) "Amendment No. 1 Effective Date" means the date on which Amendment No. 1
dated as of March 30, 2000 to this Agreement becomes effective in accordance
with its terms.
(ii) "Bank" means Fleet National Bank, a national banking association.
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(iii) "FCC" means Fleet Capital Corporation, a Rhode Island corporation.
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(iv) "Haleyville IDRBs" means $4,000,000 original principal amount of
obligations issued by The Industrial Development Board of the City of
Haleyville, Alabama, pursuant to an indenture in form and substance satisfactory
to the Administrative Agent, and the proceeds of which are lent or are made
available to be lent to WPI pursuant to an unsecured credit agreement in form
and substance satisfactory to the Administrative Agent, supported by the
Haleyville LC.
(v) "Haleyville LC" means a direct pay, standby letter of credit issued by the
Bank in an amount available to be drawn not greater than $4,000,000, expiring
not later than November 30, 2004, and in respect of which FCC provides LC
Support, for the account of WPI and the benefit of the Trustee under the
indenture governing the Haleyville IDRBs.
(vi) "LC Application" means an application by a Borrower to the Bank, on a form
approved by the Bank, for the issuance of a Letter of Credit.
(vii) "LC Support" means a guaranty or other support agreement from FCC in favor
of the Bank pursuant to which FCC shall guarantee or otherwise assure the
payment or performance by the parties (other than FCC) to an LC Application of
such parties' obligations with respect to the Letter of Credit issued thereon,
including the obligation of such parties to reimburse the Bank for any payment
made by the Bank under such Letter of Credit.
(viii) "Wabash" means Wabash Valley Manufacturing, Inc., an Indiana corporation
and a Wholly Owned Subsidiary of WinsLoew.
(b) Section 1.1 Definitions is further amended by amending the following
definitions in their entirety to read as set forth below:
(i) "Borrower" means each of WinsLoew, Winston, Loewenstein, Texacraft, Tropic
Craft, WPI, Pompeii, Wabash, 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.
(ii) "Business Day" means any day other than a Saturday, Sunday or other day on
which banks in Newport, Rhode Island or Birmingham, Alabama are authorized to
close and, when used with respect to Eurodollar Rate Loans, means any such day
on which dealings are also carried on in the applicable interbank Eurodollar
market.
(iii) "Cash Collateral Account" means a special interest-bearing account
consisting of cash and Cash Equivalents, maintained at an office of the Bank and
under the sole dominion and control of the Administrative Agent, for its benefit
and the benefit of the Lenders, established pursuant to the provisions of
Section 5.16(a) for the purposes set forth therein.
(iv) "Letter of Credit Facility" means (i) a subfacility of the Revolving Credit
Facility providing for the issuance of Letters of Credit and LC Support
described in Article 3 up to an aggregate amount of Letter of Credit Obligations
at any one time outstanding not to exceed the amount of $10,000,000 and (ii) the
Haleyville LC.
(v) "Letter of Credit Reserve" means, at any time, the aggregate Letter of
Credit Obligations at such time, other than Letter of Credit Obligations secured
by Cash Collateral or that arise under the Haleyville LC.
(vi) "Reimbursement Agreement" means, with respect to a Letter of Credit, such
LC Application and form of reimbursement agreement therefor (whether in one or
several documents) as the Bank may employ in the ordinary course of business for
its own account, with such modifications thereto as may be agreed upon by the
Bank and the relevant Borrower, provided that the LC Application and such
reimbursement agreement and any modifications thereto are not inconsistent with
the terms of this Agreement.
(vii) "Reimbursement Obligations" means the reimbursement or repayment
obligations of the Borrowers to the Bank and to FCC pursuant to Section 3.6 or
pursuant to a Reimbursement Agreement with respect to amounts that have been
drawn under a Letter of Credit or paid under an LC Support.
(viii) "Total Facilities" means the aggregate of the Revolving Credit Facility,
the Term Loan Facilities, the Acquisition Facility and the Haleyville LC.
(c) Section 1.2 General Interpretive Rules is amended by amending subsection (g)
thereof in its entirety to read as follows:
(g) Except where specifically restricted in a Loan Document, references to any
Person include its successor or permitted substitutes and assigns permitted or
not prohibited under such Loan Document. For avoidance of doubt, subject to
further such changes, from and after March 1, 2000 and the merger of Fleet
National Bank with and into BankBoston, N.A. that occurred on such date, with
the survivor, BankBoston, N.A. thereupon changing its name to "Fleet National
Bank," the terms "BankBoston," "Bank" and "Fleet National Bank" all refer to the
same entity, the survivor of the merger described in this subsection (g).
(d) Section 2.2(b) Disbursement of Loans is amended by deleting therefrom the
reference to "Section 5.8(a)" and substituting therefor a reference to "Section
5.3(a)";
(e) Article 3 LETTERS OF CREDIT is amended in its entirety to read as follows:
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ARTICLE 3
LETTER OF CREDIT FACILITY
SECTION 3.1 Agreement to Issue. Upon the terms and subject to the conditions of,
and in reliance upon the representations and warranties made under, this
Agreement, FCC agrees to procure the issuance, including by issuance of LC
Support, by the Bank for the account of any Borrower one or more Letters of
Credit in accordance with this Article 3, from time to time during the period
commencing on the Amendment No. 1 Effective Date and ending on the Termination
Date.
SECTION 3.2 Amounts. FCC shall not have any obligation to procure the issuance
of any Letter of Credit at any time:
(a) if, after giving effect to the issuance of the requested Letter of Credit,
(i) the aggregate Letter of Credit Obligations of the Borrower would exceed the
Letter of Credit Facility then in effect or (ii) the aggregate principal amount
of the Revolving Credit Loans outstanding would exceed the Borrowing Base (after
reduction for the Letter of Credit Reserve in respect of such Letter of Credit)
or (iii) if no Revolving Credit Loans are outstanding, the aggregate Letter of
Credit Obligations (excluding Letter of Credit Obligations under the Haleyville
LC) would exceed the Borrowing Base; or
(b) which has a term longer than one calendar year or an expiration date after
the last Business Day that is more than 10 days prior to the Termination Date.
SECTION 3.3 Conditions. The obligation of FCC to procure the issuance of any
Letter of Credit is subject to the satisfaction of (a) the applicable conditions
precedent contained in Article 6 and (b) the following additional conditions
precedent in a manner satisfactory to the Administrative Agent, and the Bank's
Representative:
(i) the Borrower shall have delivered to the Bank, FCC and the Administrative
Agent at such times and in such manner as the Bank, or the Administrative Agent
may prescribe an application in form and substance satisfactory to the Bank, FCC
and the Administrative Agent for the issuance of the Letter of Credit, a
Reimbursement Agreement and such other documents as may be required pursuant to
the terms thereof, and the form and terms of the proposed Letter of Credit shall
be reasonably satisfactory to the Bank, FCC and the Administrative Agent; and
(ii) as of the date of issuance, no order of any court, arbitrator or
governmental authority having jurisdiction or authority over the Bank or FCC
shall purport by its terms to enjoin or restrain banks generally from issuing
letters of credit of the type and in the amount of the proposed Letter of Credit
or to enjoin or restrain FCC from providing LC Support with respect thereto, and
no law, rule or regulation applicable to banks or their Affiliates generally and
no request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over banks or their Affiliates
generally shall prohibit, or request that the Bank refrain from, the issuance of
letters of credit generally or the issuance of such Letter of Credit or that FCC
refrain from providing LC Support with respect thereto;
provided, that the obligation to issue the Haleyville LC is also subject to the
Required Lenders being satisfied with the terms and conditions of the Haleyville
IDRBs and the documents governing them.
SECTION 3.4 Issuance of Letters of Credit
(a) Request for Issuance. The Borrower's Representative shall give the Bank, FCC
and the Administrative Agent written notice of a Borrower's request for the
issuance of a Letter of Credit no later than three (3) Business Days prior to
the proposed date of issuance of the Letter of Credit, unless a shorter period
is otherwise agreed by the Bank, FCC and the Administrative Agent. Such notice
shall be irrevocable and shall be accompanied by a completed LC Application in a
form acceptable to FCC and the Bank and shall specify the original face amount
of the Letter of Credit requested, the effective date (which date shall be a
Business Day) of issuance of such requested Letter of Credit, whether such
Letter of Credit may be drawn in a single or in multiple draws, the date on
which such requested Letter of Credit is to expire (which date shall be a
Business Day earlier than the tenth day prior to the Termination Date), the
purpose for which such Letter of Credit is to be issued and the beneficiary of
the requested Letter of Credit. The Borrower's Representative shall attach to
such notice the form of the Letter of Credit that it requests to be issued.
(b) Responsibilities of the Agent; Issuance. The Administrative Agent shall
determine, as of the Business Day immediately preceding the requested effective
date of issuance of the Letter of Credit set forth in the notice from the
Borrower's Representative pursuant to Section 3.4(a), the amount of the unused
Letter of Credit Facility. If (i) the form of the Letter of Credit delivered by
a Borrower to the Administrative Agent is acceptable to the Bank, FCC and the
Administrative Agent in their reasonable discretion, (ii) the undrawn face
amount of the requested Letter of Credit is less than or equal to the unused
Letter of Credit Facility and (iii) the Administrative Agent has received a
certificate from the Borrowers stating that the applicable conditions set forth
in Article 6 have been satisfied, then FCC will cause the Bank to issue the
Letter of Credit.
(c) Notice of Issuance. Promptly after the issuance of any Letter of Credit, FCC
shall give the Administrative Agent written or facsimile notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of such Letter
of Credit, and the Administrative Agent shall give each Lender written or
facsimile notice, or telephonic notice confirmed promptly thereafter in writing,
of the issuance of such Letter of Credit and the related LC Support.
(d) No Extension or Amendment. No Letter of Credit shall be extended or amended
unless the requirements of this Section 3.4 are met as though a new Letter of
Credit were being requested and issued.
SECTION 3.5 Duties of the Bank and FCC. The rights and obligations of the Bank
in connection with any Letter of Credit shall be governed by the Reimbursement
Agreement for such Letter of Credit and in no event shall FCC, the
Administrative Agent or any Lender have any liability or obligation to the
Borrowers, any Subsidiary of the Borrowers or any other Person for any failure
or refusal or delay by the Bank in issuing, or any error in issuing or honoring
or processing a drawing under, any Letter of Credit. Any action taken or omitted
to be taken by FCC, under or in connection with any LC Support, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
result in any liability of FCC to any Lender or relieve any Lender of its
obligations hereunder to FCC. In determining whether to pay under any LC
Support, FCC shall have no obligation to any Lender to confirm that the Bank
acted properly in honoring any drawing under any related Letter of Credit and
shall be entitled to rely on the Bank's demand for payment as sufficient
evidence of the Bank's entitlement thereto.
SECTION 3.6 Payment of Reimbursement Obligations.
(a) Payment to the Bank and FCC. Notwithstanding any provisions to the contrary
in any Reimbursement Agreement, the Borrowers agree, jointly and severally, for
the benefit of FCC and the Lenders, to reimburse the Bank for any drawings
(whether partial or full) under each Letter of Credit issued by the Bank and
agree to pay to the Bank the amount of all other Reimbursement Obligations and
other amounts payable to the Bank under or in connection with such Letter of
Credit immediately when due, irrespective of any claim, set-off, defense or
other right which any Borrower may have at any time against the Bank, FCC or any
other Person; provided that the Borrowers shall be entitled to offset the amount
of any payment previously made by the Borrowers to FCC with respect to such
Letter of Credit pursuant to the immediately following sentence. The Borrowers
agree, jointly and severally, to pay or reimburse FCC for any and all payments
made by FCC under any LC Support immediately upon demand by FCC, together with
interest on such amount for the period from FCC's payment under the LC Support
until repayment in full of such amount (from the proceeds of a Swingline Loan, a
Revolving Credit Loan or otherwise), at the interest rate then applicable to
Base Rate Revolving Credit Loans, irrespective of any claim, set-off, defense or
other right which the Borrowers may have against the Bank, FCC or any other
Person. So long as FCC remains unpaid it shall be subrogated to all rights and
remedies of (i) the Bank under the related Reimbursement Amount and (ii) any
beneficiary of such Letter of Credit whose claims against the Borrowers (or any
of them) have been satisfied with the proceeds of a drawing under such Letter of
Credit.
(b) Recovery or Avoidance of Payments. In the event any payment by or on behalf
of the Borrowers with respect to any Letter of Credit or LC Support (or any
Reimbursement Obligation relating thereto) received by the Bank or FCC or by the
Administrative Agent and distributed by the Administrative Agent to the Lenders
on account of their respective participations therein, is thereafter set aside,
avoided or recovered from the Bank, FCC or the Administrative Agent in
connection with any receivership, liquidation or bankruptcy proceeding, the
Lenders shall, upon demand by the Administrative Agent, pay to the
Administrative Agent, for the account of the Administrative Agent, FCC or the
Bank, their respective Proportionate Shares of such amount set aside, avoided or
recovered together with interest at the rate required to be paid by the
Administrative Agent upon the amount required to be repaid by it.
SECTION 3.7 Participations.
(a) Purchase of Participations. Immediately upon issuance by the Bank of a
Letter of Credit, each Revolving Credit Lender shall be deemed to have
irrevocably and unconditionally purchased and received from FCC, without
recourse or warranty, except as specifically set forth herein, an undivided
interest and participation in all Letter of Credit Obligations owing or which
may become owing to FCC relating to or arising out of such Letter of Credit,
equal to such Lender's Revolving Credit Facility Percentage of the face amount
thereof (including, without limitation, all obligations of the Borrowers with
respect thereto, other than amounts owing to the Bank under Section 5.2(d)(ii),
and any security therefor or guaranty pertaining thereto). Upon the issuance by
FCC of LC Support with respect to an outstanding Letter of Credit in which the
Lenders previously acquired participations, such participations of the Lenders
shall without further action terminate and be replaced by the Lenders'
respective participations in the Letter of Credit Obligations with respect
thereto.
(b) Obligations of Lenders. In the event that the Bank or FCC makes a payment
under any Letter of Credit or LC Support and the Bank or FCC shall not have been
repaid such amount pursuant to Section 3.6, then the Borrowers shall be deemed
to have requested a Base Rate Revolving Credit Loan in the amount of such
payment, and notwithstanding the occurrence or continuance of a Default or Event
of Default at the time of such payment, each Revolving Credit Lender shall be
absolutely obligated to make its Proportionate share of such Revolving Credit
Loan available to the Administrative Agent for disbursement as provided in
Section 2.2(b). If for any reason whatsoever, the Lenders are enjoined or
otherwise prevented from making a Revolving Credit Loan hereunder, each Lender
shall have the absolute obligation to pay to FCC, in payment for their
respective participations therein, an amount equal to their respective
Proportionate Shares of the applicable Letter of Credit Obligations.
(c) Sharing of Reimbursement Obligation Payments. Whenever FCC receives a
payment from or on behalf of the Borrowers on account of a Reimbursement
Obligation as to which the Administrative Agent has previously received for the
account of FCC payment from a Lender pursuant to this Section 3.7, FCC shall
promptly pay or cause to be paid to the Administrative Agent, for the benefit of
such Lender, such Lender's Proportionate Share of the amount of such payment
from the Borrowers in Dollars. Each such payment shall be made by FCC on the
Business Day on which FCC receives immediately available funds from the
Administrative Agent pursuant to the immediately preceding sentence, if received
prior to 11:00 a.m. on such Business Day, and otherwise on the next succeeding
Business Day.
(d) Documentation. Upon the request of any Lender, the Administrative Agent
shall furnish to such Lender copies of any Letter of Credit, LC Support,
Reimbursement Agreement or LC Application for any Letter of Credit and such
other documentation as may reasonably be requested by such Lender.
(e) Obligations Irrevocable. The obligations of each Revolving Credit Lender to
make payments to the Administrative Agent with respect to any Letter of Credit
Obligations and participation therein pursuant to the provisions of this Section
3.5 or otherwise, and the obligations of the Borrowers to make payments to the
Bank, FCC or the Administrative Agent, for the account of the Revolving Credit
Lenders, shall be irrevocable, shall not be subject to any qualification or
exception whatsoever, and shall be made in accordance with the terms and
conditions of this Agreement (assuming, in the case of the obligations of the
Revolving Credit Lenders to make such payments, that the Letter of Credit has
been issued in accordance with Section 3.4), including, without limitation, any
of the following circumstances:
(i) Any lack of validity or enforceability of this Agreement or any of the other
Loan Documents;
(ii) The existence of any claim, set-off, defense or other right which any
Borrower may have at any time against a beneficiary named in a Letter of Credit
or any transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), any Lender, the Bank, FCC or any other Person,
whether in connection with this Agreement, any Letter of Credit, any LC Support,
the transactions contemplated herein or any unrelated transactions (including
any underlying transactions between any Borrower or any other Person and the
beneficiary named in any Letter of Credit);
(iii) Any draft, certificate or any other document presented under the Letter of
Credit upon which payment has been made in good faith and according to its terms
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) The surrender or impairment of any Collateral or any other security for the
Secured Obligations or the performance or observance of any of the terms of any
of the Loan Documents;
(v) The occurrence of any Default or Event of Default; or
(vi) The Bank's, FCC's or the Administrative Agent's failure to deliver the
notice provided for in Section 3.4(c).
SECTION 3.8 Indemnification, Exoneration.
(a) Indemnification. In addition to amounts payable as elsewhere provided in
this Article 3, the Borrowers agree, jointly and severally, to protect,
indemnify, pay and save the Bank, the Lenders, FCC and the Administrative Agent
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
the Bank, any Lender, FCC or the Administrative Agent may incur or be subject to
as a consequence, directly or indirectly, of
(i) the issuance of any Letter of Credit, other than as a result of its gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction, or
(ii) the failure of the Bank to honor a drawing under any Letter of Credit as a
result of any act or omission, whether such act or omission is rightful or
wrongful, of any present or future de jure or de facto governmental authority
(all such acts or omissions being hereinafter referred to collectively as
"Government Acts").
(b) Assumption of Risk by the Borrower. As among the Borrowers, the Lenders, FCC
and the Administrative Agent, the Borrowers assume all risks of the acts and
omissions of, or misuse of any of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the LC Applications, FCC, the
Lenders and the Administrative Agent shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any Person in connection with the application for and
issuance of and presentation of drafts with respect to any of the Letters of
Credit, even if it should prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason;
(iii) the failure of the beneficiary of any Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under any Letter of Credit or of the proceeds
thereof;
(vii) the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of FCC, the
Lenders or the Administrative Agent, including, without limitation, any
Government Acts.
None of the foregoing shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers under this Section 3.8 nor shall any of
the foregoing affect the rights and obligations of any Borrower as the account
party and the Bank as issuer of Letters of Credit, which rights and obligations
shall be defined and governed by the Letter of Credit Documents and Applicable
Law.
(c) Exoneration. In furtherance and extension, and not in limitation, of the
specific provisions set forth above, any action taken or omitted by the
Administrative Agent, the Bank, FCC or any Lender under or in connection with
any of the Letters of Credit or any related certificates, if taken or omitted in
good faith, shall not result in any liability of the Administrative Agent, the
Bank, FCC or any Lender to any Borrower or relieve any Borrower of any of its
obligations hereunder to any such Person.
SECTION 3.9 Supporting Letter of Credit; Cash Collateral Account. Upon the
occurrence of an Event of Default or if, notwithstanding the provisions of
Section 3.2(b), any Letter of Credit is outstanding on the Termination Date,
then on or prior to the Termination Date, the Borrowers shall, promptly on
demand by the Administrative Agent, deposit in such account of the
Administrative Agent as it may direct, for the Ratable benefit of the Lenders,
with respect to each related LC Support then outstanding, as the Administrative
Agent shall specify, either (a) a standby letter of credit (a "Supporting Letter
of Credit") in form and substance satisfactory to the Administrative Agent and
FCC, issued by an issuer satisfactory to the Administrative Agent and FCC in
their reasonable judgment in an amount equal to the greatest amount for which
such related LC Support may be drawn, under which Supporting Letter of Credit
the Administrative Agent or FCC shall be entitled to draw amounts necessary to
reimburse the Bank, FCC, the Administrative Agent and the Lenders for payments
made by them in respect of such Letter of Credit or the related LC Support or
under any reimbursement or guaranty agreement with respect thereto, or (b) Cash
Collateral in an amount necessary to reimburse the Bank, FCC, the Administrative
Agent and the Lenders for payments made by the Bank, FCC, the Administrative
Agent and the Lenders in respect of such Letter of Credit or any related LC
Support or other reimbursement or guaranty agreement with respect thereto. Such
Supporting Letter of Credit or Cash Collateral shall be held by the
Administrative Agent first, for the Ratable benefit of the Revolving Credit
Lenders, FCC or the Bank, as the case may be, as security for, and to provide
for the payment of, the Reimbursement Obligations and after payment thereof in
full for the benefit of all Lenders. In the event the Borrowers fail to comply
with either clause (a) or (b) above, the Borrowers shall be deemed to have
requested a Base Rate Revolving Credit Loan in the amount necessary to provide
the Cash Collateral described in clause (b) to be held by the Administrative
Agent as therein provided. In addition, the Administrative Agent may at any time
after such Event of Default or Termination Date apply any or all of such Cash
Collateral to the payment of any or all of the Secured Obligations then due and
payable. The Cash Collateral shall be deposited in the Cash Collateral Account
and shall be administered in accordance with the provision of Section 5.16.
(f) Section 5.2(d)(ii) is amended by inserting in subsection (i) thereof after
the phrase "all standby Letters of Credit" the first time it appears, the phrase
"(including any direct pay Letters of Credit)" and amending subsection (ii) in
its entirety to read as follows:
(ii) The Borrowers agree to pay to the Administrative Agent, (A) for the account
of FCC, a fronting fee at a rate equal to 0.125% per annum on the Letter of
Credit Amount, payable to the Administrative Agent for the account of FCC
monthly in arrears on the first day of each month and (B) for the account of the
Bank, the standard fees and charges of the Bank for issuing, administering,
amending, renewing, paying and transferring and otherwise handling letters of
credit, as and when assessed
(g) the Loan Agreement is further amended by amending Annex A thereto in its
entirety to be in the form of Annex I hereto.
Section 2. Consent. The Lenders and the Administrative Agent hereby consent,
subject to satisfaction of the conditions set forth in Section 3, to WinsLoew's
borrowing up to $4,000,000 original principal amount of proceeds of the
Haleyville IDRBs, the proceeds of which are applied exclusively to (a) reimburse
WinsLoew for the cost to acquire in 1999 a building adjacent to the WinsLoew
premises in Haleyville, Alabama and (b) pay up to 100% of the "hard" costs
(excluding soft costs such as installation charges, warranty fees, etc.) of
Equipment acquired by WPI after the Amendment 1 Effective Date, located at
premises of WPI, and on which the Administrative Agent has a perfected security
interest subject to no other Lien, other than a Permitted Lien.
Section 3. Effectiveness of Amendment. This Amendment shall become effective as
of the date hereof on the first date (the "Amendment 1 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 Wabash;
(b) an allonge to each Note outstanding under the Loan Agreement, duly executed
and delivered by Wabash;
(c) (i) a Mortgage as to the real property of Wabash located in Indiana,
evidencing the recording thereof as security for the Secured Obligations (or at
the Administrative Agent's discretion, in suitable form for such recording),
(ii) an irrevocable, fully paid commitment of a title insurance company
satisfactory to the Administrative Agent in its reasonable discretion, to issue
in the name of FCC as Administrative Agent a mortgagee's policy of title
insurance in an amount equal to at least 125% of the value of such Wabash real
estate and reflecting no survey exception or other exception that the
Administrative Agent has not approved in writing, and (iii) certified copies of
surveys, special flood hazard area information, zoning letters, and such other
real estate-related instruments and documents as the Administrative Agent may
request to support the value of such real estate and the status and priority of
the Administrative Agent's Lien thereon and on the proceeds thereof;
(d) an amendment to the WinsLoew Pledge Agreement duly executed and delivered by
WinsLoew as to the Wabash shares acquired pursuant to the Wabash Purchase
Agreement, together with any and all deliveries contemplated thereby;
(e) results of UCC, tax, and judgment lien searches in respect of Wabash and
evidence, satisfactory to the Administrative Agent, that any Liens reflected
therein have been discharged or that the Agent is in possession of appropriate
releases permitting it to effect such discharge;
(f) Financing Statements signed by Wabash in appropriate form for filing in each
jurisdiction in which such a filing is required to perfect the Security
Interest;
(g) 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;
(h) a copy of the opinion letter of the Wabash Sellers' counsel delivered
pursuant to the provisions of the Wabash 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;
(i) 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 Wabash or such Loan Document as any Lender
through the Administrative Agent may reasonably request;
(j) a certificate of the Secretary of WinsLoew having attached thereto true and
correct copies of the Wabash 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;
(k) a certificate of the President of WinsLoew or a Financial Officer to the
effect that the Acquisition of Wabash has been consummated substantially in
accordance with the terms of the Wabash 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 (as modified by the consent of
the Lenders dated February 24, 2000 with respect to Wabash), have been satisfied
as of the date of such certificate, and that no Default or Event of Default
exists;
(l) 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 $4,566,000 and that individual sellers under
the Wabash Purchase Agreement have continued/invested not less than $2,500,000
in WinsLoew in the form of roll-over equity;
(m) the Borrowers shall have paid to the Administrative Agent for the Ratable
benefit of the Lenders, a fee in an amount equal to 1.25% of the increase in
Total Facilities for the Haleyville LC (or $50,000) and any other fees due and
payable in connection with the effectiveness of this Amendment; and
(n) such other agreements, certificates, instruments and other documents as any
Lender through the Agent may reasonably request (including, without being
limited to, a collateral assignment of WinsLoew's rights and indemnities under
the Wabash Purchase Agreement) in connection with the transactions contemplated
hereby.
Section 4. 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 5. Effect of Amendment. The conditions to the obligations of the Lenders
to make the Acquisition Loan in the original principal amount of $20,000,000
requested by the Borrowers in connection with the Wabash Acquisitions 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,
Wabash shall be a "Borrower" under the Loan Agreement for all purposes hereof
and Wabash 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 6. 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.
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:
Name:__________________________
Title: ___________________________
WINSTON FURNITURE COMPANY OF ALABAMA, INC.
By:
Name: ___________________________
Title: _____________________________
LOEWENSTEIN, INC.
By:
Name: ___________________________
Title: ____________________________
TROPIC CRAFT, INC.
By:
Name: ___________________________
Title: _____________________________
WINSTON PROPERTIES, INC.
By:
Name: ___________________________
Title: ____________________________
POMPEII FURNITURE CO., INC.
By:
Name: ____________________________
Title: _____________________________
Accepted and agreed:
WABASH VALLEY MANUFACTURING, INC.
By:_________________________________
Name: ____________________________
Title: _____________________________
ADMINISTRATIVE AGENT:
FLEET CAPITAL CORPORATION
By:
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
CO-AGENT:
XXXXXX FINANCIAL, INC.
By:
Name:
Title:
CO-AGENT:
CIBC INC.
By:
Name:
Title:
LENDERS:
FLEET CAPITAL CORPORATION
By:
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
Name:
Title:
CIBC INC.
By:
Name:
Title:
ANTARES CAPITAL CORP.
By:_________________________________
Name:
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By:_________________________________
Name:
Title:
By:
Name:
Title:
GMAC BUSINESS CREDIT, LLC
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
BANK LEUMI LE ISRAEL BM MIAMI
By:
Name:
Title:
123532
COMERICA BANK
By:
Name:
Title:
184023v1 4
184023v1
WACHOVIA BANK, N.A.
By:
Name:
Title:
CHASE BANK OF TEXAS, N.A.
By:
Name:
Title:
ANNEX 1
To Amendment No. 1
ANNEX A
Commitments
To the Loan Agreement
WinsLoew Commitments
Lender Total Revolver Haleyville LC Term A Term B Term C Acq. Facility Swingline Facility
Fleet ...... 21,506,444.91 5,064,449.06 506,444.91 3,165,280.67 8,868,243.24 1,064,189.19 2,837,837.84 5,000,000.00
Xxxxxx ..... 16,385,862.79 3,858,627.86 385,862.79 2,411,642.41 6,756,756.76 810,810.81 2,162,162.16
CIBC ....... 15,361,746.37 3,617,463.62 361,746.36 2,260,914.76 6,334,459.46 760,135.14 2,027,027.03
SunTrust ... 16,385,862.79 3,858,627.86 385,862.79 2,411,642.41 6,756,756.76 810,810.81 2,162,162.16
GMAC ....... 16,385,862.79 3,858,627.86 385,862.79 2,411,642.41 6,756,756.76 810,810.81 2,162,162.16
Bank Austria 16,385,862.79 3,858,627.86 385,862.79 2,411,642.41 6,756,756.76 810,810.81 2,162,162.16
Wachovia ... 12,801,455.30 3,014,553.01 301,455.30 1,884,095.63 5,278,716.22 633,445.95 1,689,189.19
GECC ....... 12,801,455.30 3,014,553.01 301,455.30 1,884,095.63 5,278,716.22 633,445.95 1,689,189.19
Antares .... 14,337,629.94 3,376,299.38 337,629.94 2,110,187.11 5,912,162.16 709,459.46 1,891,891.89
Comerica ... 9,217,047.83 2,170,478.17 217,047.82 1,356,548.86 3,800,675.68 456,081.08 1,216,216.22
Bank Leumi . 7,430,769.23 4,307,692.31 430,769.23 2,692,307.69 0.00 0.00 0.00
TOTAL ...... 159,000,000.02 40,000,000.00 4,000,000.00 24,999,999.99 62,500,000.02 7,500,000.01 20,000,000.00
Lender Total Revolver Haleyville LC Term A Term B Term C Acq. Facility
Fleet ......... 13.526 12.661 12.661 12.661 14.189 14.189 14.1892%
Xxxxxx ........ 10.305 9.646 9.646 9.646 10.810 10.810 10.8108%
CIBC .......... 9.661 9.043 9.043 9.043 10.135 10.135 10.1351%
SunTrust ...... 10.305 9.646 9.646 9.646 10.810 10.810 10.8108%
GMAC .......... 10.305 9.646 9.646 9.646 10.810 10.810 10.8108%
Bank Austria .. 10.305 9.646 9.646 9.646 10.810 10.810 10.8108%
Wachovia ...... 8.051 7.536 7.536 7.536 8.445 8.445 8.4459%
GECC .......... 8.051 7.536 7.536 7.536 8.445 8.445 8.4459%
Antares ....... 9.017 8.440 8.440 8.440 9.459 9.459 9.4595%
Comerica ...... 5.796 5.426 5.426 5.426 6.081 6.081 6.0811%
Bank Leumi .... 4.673 10.769 10.769 10.769 0.000 0.000 0.0000%
TOTAL ......... 1.00 1.00 1.00 1.00 1.00 1.00 1.00
