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Exhibit 4.2
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of August 27, 1999, among Trivest Furniture Corporation, a Florida
corporation (the "Temporary Survivor"), WinsLoew Furniture, Inc., a Florida
corporation (the "Company"), Winston Furniture Company of Alabama, Inc., an
Alabama corporation ("Winston"), Loewenstein Furniture Company, a Florida
corporation ("Loewenstein"), Winston Properties, Inc., an Alabama corporation
("WPI"), Texacraft, Inc., a Texas corporation ("Texacraft"), Tropic Craft, Inc.,
a Florida corporation ("Tropic Craft"), and Pompeii Furniture Co., Inc., a
Florida corporation ("Pompeii" and together with Winston, Loewenstein, WPI,
Texacraft and Tropic Craft, the "Guarantors"), all of which are direct or
indirect, wholly-owned subsidiaries of the Company, and American Stock Transfer
& Trust Company, as trustee under the indenture referred to below (the
"Trustee").
WITNESSETH:
WHEREAS, WinsLoew Escrow Corp., a Florida corporation (the
"Predecessor") has heretofore executed and delivered to the Trustee an indenture
(the "Indenture"), dated as of August 24, 1999 providing for the issuance of an
aggregate principal amount at maturity of $105.0 million of 12 3/4% Senior
Subordinated Notes due 2007 (the "Notes"); and
WHEREAS, Article 5 of the Indenture provides that upon the
occurrence of certain mergers, consolidations and sales of all or substantially
all of the assets of the Predecessor, the surviving entity or purchasers may
assume the obligations under the Indenture and the Notes by executing and
delivering to the Trustee a supplemental indenture pursuant to which the
surviving entity shall assume all of the Predecessor's Obligations under the
Notes and the Indenture; and
WHEREAS, pursuant to that certain Agreement and Plan of
Merger, adopted by Predecessor and Temporary Survivor, Predecessor has merged
with and into Temporary Survivor, with Temporary Survivor being the surviving
corporation (the "Short Form Merger"); and
WHEREAS, pursuant to that certain Second Amended and Restated
Agreement and Plan of Merger, dated as of May 4, 1999, by and between Temporary
Survivor and the Company, Temporary Survivor has merged with and into the
Company, with the Company being the surviving corporation (the "Merger"); and
WHEREAS, all of the conditions of Section 5.01 under the
Indenture have been satisfied; and
WHEREAS, the Indenture provides that under certain
circumstances the Guarantors shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guarantors shall unconditionally
guarantee all of the Company's Obligations
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under the Notes and the Indenture on the terms and conditions set forth herein
(the "Note Guarantee"); and
WHEREAS, pursuant to Section 10.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, Temporary Survivor, the Company, the Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:
1. Capitalized Terms. Capitalized Terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Assumption of Obligations. Each of Temporary Survivor, as a result and in
contemplation of the consummation of the Short Form Merger, and the
Company, as a result and in contemplation of the Merger, hereby agrees to
assume all of the Obligations of the Predecessor and Temporary Survivor,
respectively, under the Notes and the Indenture in accordance with the
provisions of Section 5.01 of the Indenture and agree to be substituted as
the successor corporation to each of the Predecessor and Temporary
Survivor, respectively, in accordance with the provisions of Section 5.02
of the Indenture.
3. Agreement to Guarantee. Each Guarantor hereby agrees as follows:
3.1. Along with all Guarantors, to jointly and severally Guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the Obligations of
the Company hereunder or thereunder, that:
3.1.1. the principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes shall be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of to the
extent and interest and Liquidation Damages, if any, on the
Notes to the extent lawful, and all other Obligations of the
Company to the Holders or the Trustee hereunder or under the
Indenture shall be promptly paid in full or performed, all in
accordance with the terms hereof and under the Indenture;
3.1.2. in case of any extension of time of payment or renewal of any
Notes or any of such other Obligations, that same shall be
promptly paid in full when
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due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately.
3.2. The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
3.3. The following is hereby waived: diligence presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever.
3.4. This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
3.5. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
3.6. Such Guarantor shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
3.7. As between the Guarantors, on the one hand, the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of
any declaration of acceleration of such obligations as provided in
Article
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6 of the Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee.
3.8. The Guarantors shall have the right to seek contribution from
non-paying Guarantors so long as the exercise of such right does not
impair the rights of the Holders under the Note Guarantee.
3.9. Notwithstanding the foregoing, in the event that this Note Guarantee
would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability
of such Guarantor under this Supplemental Indenture and its Note
Guarantee shall be reduced to the maximum amount permissible under
such fraudulent conveyance or similar law.
3.10. Notwithstanding anything to the contrary herein, all obligations of
each Guarantor hereunder shall be subordinated to the prior payment of
Senior Indebtedness to the same extant that the Notes are subordinated
pursuant to Article 11 of the Indenture.
4. Execution and Delivery. Each Guarantor agrees that the Guarantees shall
remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Note Guarantee.
5. Guarantors May Consolidate, Etc. on Certain Terms.
5.1. Except as provided in Section 6.1 hereof, each Guarantor may not
consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person) another corporation, Person or entity whether
or not affiliated with such Guarantor unless:
5.1.1. subject to Section 6.1 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee
on the terms set forth herein or therein; and
5.1.2. immediately after giving effect to such transaction, no
Default or Event of Default exists.
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5.2. In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the Note Guarantee endorsed upon the Notes and
the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit
under the Indenture as the Note Guarantees theretofore and thereafter
issued in accordance with the terms of the Indenture as though all of
such Note Guarantees had been issued at the date of the execution
hereof.
5.3. Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding subparagraphs 5.1.1 and 5.1.2 above, nothing contained
in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety
to the Company or another Guarantor.
6. Releases.
6.1. In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all to the capital stock of any Guarantor,
then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the capital stock
of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) shall be released and relieved of any
obligations under this Supplemental Indenture and its Note Guarantee;
provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions
of the Indenture, including without limitation Section 4.10 of the
Indenture, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.
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6.2. Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in the Indenture.
7. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guarantor, as such,
shall have any liability for any obligations of the Company or any
Guarantor under the Notes, any Note Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of
which recitals are made solely by the Guarantor and the Company.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: August 27, 1999
TRIVEST FURNITURE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President and Chief Financial Officer
WINSLOEW FURNITURE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President, Treasurer and Chief Financial
Officer
WINSTON FURNITURE COMPANY OF ALABAMA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President-Finance & Administration,
Treasurer and Chief Financial Officer
LOEWENSTEIN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President and Treasurer
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WINSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President and Treasurer
TEXACRAFT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President and Treasurer
TROPIC CRAFT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President-Finance and Treasurer
POMPEII FURNITURE CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Treasurer and Chief Financial Officer
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AMERICAN STOCK TRANSFER & TRUST COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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