EXECUTION COPY
AMENDMENT NO. 3 AND WAIVER
to
LOAN AND SECURITY AGREEMENT
dated as of August 27, 1999
THIS AMENDMENT NO. 3 AND WAIVER dated as of December 29, 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, WABASH VALLEY MANUFACTURING, INC., an Indiana
corporation, CHARTER FURNITURE CORPORATION, a California corporation
(collectively, the "Borrowers"), SOUTHERN WOOD PRODUCTS, INC., a Tennessee
corporation ("Southern Wood"), LODGING BY LOEWENSTEIN, INC., a North Carolina
corporation ("Lodging"), 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, the "Co-Agents"), and FLEET CAPITAL
CORPORATION, a Rhode Island corporation, as administrative agent (the
"Administrative Agent") for the Lenders.
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
by Amendment No. 1 dated as of March 30, 2000 and Amendment No. 2 dated as of
August 11, 2000 (as amended and in effect, the "Loan Agreement"; terms defined
therein and not otherwise defined herein being used herein as therein defined).
Loewenstein has informed the Administrative Agent and the Lenders that it has
made Investments in two newly formed entities, Southern Wood and Lodging, each
of which has become a Wholly Owned Subsidiary of Loewenstein. In accordance with
the provisions of Section 10.11 of the Loan Agreement, the Borrowers and the
Lenders desire that each of Southern Wood and Lodging become a "Borrower" under
the Loan Agreement.
In addition, the Borrowers have informed the Administrative Agent and the
Lenders that WinsLoew intends to Acquire 100% of the capital stock of Woodsmith,
a Florida corporation, and have requested that the Administrative Agent and the
Lenders grant certain waivers in connection with such Acquisition.
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 4, 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:
"Annual Projections" means the forecasted (a) balance sheets, (b) income
statements and (c) cash flow statements of WinsLoew and its Consolidated
Subsidiaries for each Fiscal Year, prepared annually by WinsLoew and its
Consolidated Subsidiaries on a consolidated monthly basis, together with
appropriate supporting details and a statement of underlying assumptions.
"Lodging" means Lodging By Loewenstein, Inc., a North Carolina corporation and a
Wholly Owned Subsidiary of WinsLoew.
"Southern Wood" means Southern Wood Products, Inc., a Tennessee corporation and
a Wholly Owned Subsidiary of WinsLoew.
(b) Section 1.1 Definitions is further amended by amending the definition of
"Borrower" in its entirety to read as follows:
"Borrower" means each of WinsLoew, Winston, Loewenstein, Texacraft, Tropic
Craft, WPI, Pompeii, Wabash, Charter, Southern Wood, Lodging 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.
(c) Section 11.1 Financial Statements is amended by inserting at the end thereof
a new subsection (c) to read as follows:
(c) Annual Projections. As soon as available, but in any event not later than
the first day of each Fiscal Year, Annual Projections for such Fiscal Year in
such format and detail as the Administrative Agent may reasonably specify.
Section 2. Acknowledgment. By their execution and delivery hereof, each of the
Borrowers, Southern Wood and Lodging (a) acknowledges and agrees that, as of the
Amendment Effective Date (as hereinafter defined) each of Southern Wood and
Lodging will become, by its execution and delivery hereof, a "Borrower" under
and as defined in the Loan Agreement, bound by all the terms and provisions
thereof, and (b) covenants with the Lenders that each of Southern Wood and
Lodging will observe and perform the terms and provisions of the Loan Agreement
to the same extent as if it were an original party thereto. By its execution and
delivery hereof, each of Southern Wood and Lodging also confirms (i) it has
received a copy of the Loan Agreement, (ii) that the representations and
warranties of the Borrowers set forth in the Loan Agreement are true and correct
on and as of the date hereof as to Southern Wood and Lodging, respectively,
(iii) its pledge, assignment and grant to the Administrative Agent, for the
benefit of the Lenders, of a continuing security interest in the Collateral as
security for the Secured Obligations, and (iv) its appointment of WinsLoew as
its representative in accordance with the provisions of Section 5.17 of the Loan
Agreement.
Section 3. Waiver. The Borrowers have informed the Administrative Agent and the
Lenders that WinsLoew intends to Acquire 100% of the capital stock of Woodsmith,
a Florida corporation (the "Seller"), for an aggregate purchase price not to
exceed $3,000,000, the payment of a portion of which will be made by the
issuance by WinsLoew of a promissory note to the order of Seller in an original
principal amount not greater than $2,700,000 (the "Woodsmith Seller Note"). The
Borrowers have requested that, notwithstanding the provisions of Section 6.2(g)
of the Loan Agreement, (i) the repayment by WinsLoew of the Woodsmith Seller
Note not be required to be subordinated to the prior payment in full of the
Secured Obligations and (ii) the principal of the Woodsmith Seller Note be
repayable pursuant to said Note at any time on and after July 31, 2001, and,
subject to satisfaction of the conditions set forth in Section 4, the
Administrative Agent and the Lenders hereby agree to waive the requirements of
Section 6.2(g) of the Loan Agreement to the extent necessary to permit the
foregoing; provided, that WinsLoew (or any other Loan Party) may repay principal
of the Woodsmith Seller Note only if, after giving effect to such repayment,
Availability is at least $20,000,000.
Section 4. Effectiveness of Amendment. This Amendment shall become effective as
of the date hereof on the first date (the "Amendment Effective Date") on which
the Administrative Agent has received an amendment fee, for the Ratable benefit
of the Lenders, in the amount of $50,000 and 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 4 and
Section 5 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 the Borrowers,
the Required Lenders, Southern Wood and Lodging;
(b) an allonge to each Note outstanding under the Loan Agreement, duly executed
and delivered by Southern Wood and Lodging;
(c) Financing Statements signed by Southern Wood and Lodging in appropriate form
for filing in each jurisdiction in which such a filing is required or
appropriate to perfect the Security Interest;
(d) any landlord or mortgagee acknowledgments or Lien subordination or waiver
agreements as the Administrative Agent may request, duly executed and delivered
by the respective landlords or mortgagees;
(e) 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 as any Lender through the Administrative Agent may reasonably request;
(f) certificates as to the good standing of each of Southern Wood and Lodging in
its jurisdiction of incorporation and in each other jurisdiction in which it is
qualified to transact business as a foreign corporation;
(g) a certificate of the Secretary of each Borrower as to and having attached
thereto the articles or certificate of incorporation and bylaws of such Borrower
as in effect on the Amendment Effective Date or containing the certification of
such Secretary or Assistant Secretary that no amendment or modification of such
articles or certificate or bylaws has become effective since the last date on
which such documents were delivered to the Lenders pursuant to the Loan
Agreement, all corporate action, including shareholders' approval, if necessary,
taken by such Borrower and/or its shareholders to authorize the execution,
delivery and performance of this Amendment, and an incumbency certificate for
and specimen signatures of the officers of such Borrower who are authorized to
execute this Amendment or to the further effect that the incumbency certificate
last delivered to the Lender under the Loan Agreement remains in effect,
unchanged;
(h) a Stock Pledge Agreement in form and substance satisfactory to the
Administrative Agent executed by Loewenstein in favor of the Administrative
Agent, pursuant to which Loewenstein pledges all of the issued and outstanding
shares of the capital stock of Southern Wood and Lodging as security for the
Secured Obligations, together with all certificates and stock powers, undated
and in blank, constituting Pledged Shares (as defined therein) required to be
delivered by Loewenstein to the Administrative Agent in connection with the
execution and delivery of such agreement;
(i) updated Schedules or supplements to the Schedules to the Loan Agreement as
necessary to reflect accurately as of the Amendment Effective Date the facts
purported to be set forth therein; and
(j) such other agreements, certificates, instruments and other documents as any
Lender through the Administrative Agent may reasonably request in connection
with the transactions contemplated hereby.
Section 5. 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 6. Effect of Amendment. 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.
Section 7. 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.
Delivery of an executed signature page of any party hereto by facsimile
transmission shall be effective as delivery of an original counterpart thereof.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to the
conflict of laws principles thereof.
[signatures appear on following pages]
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: ____________________________
TEXACRAFT, INC.
By:
Name: ___________________________
Title: _____________________________
TROPIC CRAFT, INC.
By:
Name: ___________________________
Title: _____________________________
WINSTON PROPERTIES, INC.
By:
Name: ___________________________
Title: ____________________________
POMPEII FURNITURE CO., INC.
By:
Name: ____________________________
Title: _____________________________
WABASH VALLEY MANUFACTURING, INC.
By:
Name: ____________________________
Title: _____________________________
CHARTER FURNITURE CORPORATION
By:_________________________________
Name: ____________________________
Title: _____________________________
SOUTHERN WOOD PRODUCTS, INC.
By:
Name: ____________________________
Title: _____________________________
LODGING BY LOEWENSTEIN, INC.
By:
Name: ____________________________
Title: _____________________________
ADMINISTRATIVE AGENT:
FLEET CAPITAL CORPORATION
By:
Xxxxxxxxx Xxxxxx
Senior Vice President
CO-AGENT:
XXXXXX FINANCIAL, INC.
By:
Name:
Title:
CO-AGENT:
CIBC INC.
By:
Name:
Title:
LENDERS:
FLEET CAPITAL CORPORATION
By:
Xxxxxxxxx Xxxxxx
Senior Vice President
XXXXXX FINANCIAL, INC.
By:
Name:
Title:
CIBC INC.
By:
Name:
Title:
ANTARES CAPITAL CORPORATION
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:
232684
COMERICA BANK
By:
Name:
Title:
232684 3
232684
WACHOVIA BANK, N.A.
By:
Name:
Title:
CHASE MANHATTAN BANK, as trustee of the Antares Funding Trust created under the
Trust Agreement dated as of November 30, 1999
By:
Name:
Title:
