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Exhibit 4.4
LIFESTYLE FURNISHINGS INTERNATIONAL LTD.,
Company
and
IBJ WHITEHALL BANK & TRUST COMPANY (formerly known as IBJ
▇▇▇▇▇▇▇▇ Bank & Trust Company)
Trustee
______________________________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of April 8, 1999
_______________________________________
10 7/8% Senior Subordinated Notes due 2006
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THIS SECOND SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), is made
as of April 8, 1999 between LifeStyle Furnishings International Ltd., a Delaware
corporation (the "Company"), certain of the Company's subsidiaries signatories
hereto (each, a "Guarantor Subsidiary" and collectively, the "Guarantor
Subsidiaries"), and IBJ Whitehall Bank & Trust Company (formerly known as IBJ
▇▇▇▇▇▇▇▇ Bank & Trust Company) , a New York banking corporation, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company executed and delivered an Indenture dated as of August
5, 1996 and a First Supplemental Indenture dated as of December 20, 1996
(together, the "Indenture") among the Company, the Guarantor Subsidiaries and
the Trustee under which are issued $200,000,000 aggregate principal amount of
10 7/8% Senior Subordinated Notes due 2006 (the "Securities");
WHEREAS, the Company desires to execute and deliver an amendment to the
Indenture for the purposes of eliminating and amending certain of the principal
restrictive covenants and certain other provisions contained in the Indenture in
order to enhance the operating and financial flexibility of the Company;
WHEREAS, the Company desires to waive the application of certain negative
covenants contained in the Indenture to the extent required to effect the
reorganization transactions (the "Reorganization"), as described in the Offer to
Purchase and Consent Solicitation Statement dated January 29, 1999, as it may be
amended from time to time (the "Offer"), contemplated by the Company and
Furnishings International Inc., its parent (the "Parent");
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may be
amended, subject to certain exceptions specified in such Section 9.02, with the
consent of the holders of a majority in aggregate principal amount of the
Securities outstanding at the time (the "Requisite Consents");
WHEREAS, the Company has obtained the Requisite Consents to amend the
Indenture as set forth in Articles 1 and 2 of this Second Supplemental Indenture
(the "Proposed Amendments");
WHEREAS, all other conditions and requirements necessary to make this
Supplemental Indenture a valid and binding instrument in accordance with its
terms and the terms of the Indenture have been satisfied.
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NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the Company, the Guarantor Subsidiaries and the
Trustee hereby covenant and agree, for the equal and proportionate benefit of
all holders from time to time of the Securities, as follows:
ARTICLE 1
WAIVER OF APPLICATION OF COVENANTS
Subject of Section 3.01(b) hereof, the application of the negative
covenants contained in the Indenture is hereby waived to the extent required to
effect the Reorganization that is to be consummated substantially concurrently
with the consummation of the Offer (the "Waiver").
ARTICLE 2
AMENDMENTS TO CERTAIN PROVISIONS OF INDENTURE
SECTION 2.01. Amendment of Certain Provisions of the Indenture. Subject to
Section 3.03 hereof, the Indenture is hereby amended in the following respects:
(a) Section 1.01 of the Indenture is hereby amended so that the following
defined terms and their accompanying definitions, which appear solely in the
deleted Sections or Subsections referred to in (b) through (h) below, are
deleted:
"Acquisition Agreement"
"Additional Assets"
"Consolidated Coverage Ratio"
"Consolidated Interest Expense"
"Consolidated Net Income"
"Consolidated Net Worth"
"Consolidated Non-Cash Charges"
"Consolidation"
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"Domestic Subsidiary"
"EBITDA"
"Foreign Subsidiary"
"Holdings Business"
"Investment"
"Management Agreement"
"Masco Notes"
"▇▇▇▇▇'▇"
"Net Available Cash"
"Net Cash Proceeds"
"Permitted Investment"
"Purchase Money Indebtedness"
"Refinancing Indebtedness"
"Related Business"
"S&P"
"Significant Subsidiary"
"▇▇▇▇▇▇▇"
"Specified Loss of the Holdings Business"
"Tax Sharing Agreement"
"Temporary Cash Investments"
"Term Loans"
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(b) The following clauses or sentences in certain definitions in Section
1.01 of the Indenture enumerated below are hereby deleted and replaced with the
following:
"[Intentionally Deleted by Amendment]"
(i) the last sentence in the definition of "AFFILIATE";
(ii) clause (v) in the definition of "ASSET DISPOSITION";
(iii) the first parenthetical in the definition of "PUBLIC EQUITY
OFFERING";
(iv) the parenthetical in the definition of "PUBLIC MARKET";
(v) clause (B) and clause (x) in the definition of "UNRESTRICTED
SUBSIDIARY".
(c) Section 1.02 of the Indenture is hereby amended to delete terms
defined in deleted Sections in the Indenture and the deleted terms are replaced
with the following: "[Intentionally Deleted By Amendment]".
(d) The Section headings and the text of each of Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14 and 4.15 of the Indenture,
and all such references thereto, are hereby deleted in their entirety and
replaced with the following: "[Intentionally Deleted by Amendment]".
(e) Section 5.01 of the Indenture is hereby amended as follows: the text
of clauses (iii) and (iv), and all references thereto, are deleted in their
entirety and are hereby replaced with the phrase "[Intentionally Deleted by
Amendment]".
(f) Section 6.01 of the Indenture is hereby amended as follows:
(i) the text of clauses (4), (6) and (9), and all references
thereto, are deleted in their entirety and are hereby replaced
with the phrase "[Intentionally Deleted by Amendment]";
(ii) the words "or any Significant Subsidiary" are deleted in Section
6.01(7) and Section 6.01(8) of the Indenture wherever they
appear, and all references to Section 6.01(7) and 6.01(8) with
respect to Significant Subsidiaries only.
(g) Section 11.02(b) of the Indenture is hereby amended to delete the
words "and the Company shall comply with its obligations under Section 4.06"
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from the last sentence in that paragraph and such words are replaced with the
following: "[Intentionally Deleted By Amendment]".
(h) The text in Section 11.06 is hereby deleted in its entirety and
replaced with the following: "[Intentionally Deleted By Amendment]".
(i) The text in Exhibit D and Schedules 4.04 and 4.07 is hereby deleted in
its entirety and replaced with the following: "[Intentionally Deleted By
Amendment]".
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Effect of Supplemental Indenture. (a) Upon the execution
and delivery of this Supplemental Indenture by the Company, the Guarantor
Subsidiaries and the Trustee, the Indenture shall be amended and supplemented
in accordance herewith, and this Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby, as hereby amended and supplemented; provided, however, that the
Proposed Amendments, except as described in (b) with respect to the Waiver,
shall not become operative until the Company has notified the Trustee that it
has accepted for purchase at least a majority of the outstanding principal
amount of the Securities pursuant to the offer to purchase for cash any and all
of the Notes, upon the terms and conditions set forth in the Offer (and at such
time the Proposed Amendments shall automatically become operative without the
requirement of any further action by or notice to the Company, the Guarantor
Subsidiaries, the Trustee or any Holder of Securities).
(b) In order to avoid the possibility of a default under the Indenture in
connection with the consummation of the Reorganization, the Waiver shall become
operative immediately upon execution of this Supplemental Indenture by the
Company, the Guarantor Subsidiaries and the Trustee. However, if the Offer is
terminated or withdrawn or the tendered Notes are not accepted for payment
pursuant to the Offer, the Proposed Amendments will not become operative and
the Waiver will cease to be operative.
SECTION 3.02. Indenture Remains in Full Force and Effect. Except as
amended and supplemented hereby, all provisions in the Indenture shall remain
in full force and effect and are in all respects ratified and confirmed.
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SECTION 3.03. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act that is required under such Act to be part of and to govern
any provision of this Supplemental Indenture, the provision of such Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of such Act shall be deemed to apply to the Indenture as so
modified or to be excluded by this Supplemental Indenture, as the case may be.
SECTION 3.05. Separability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.06. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 3.07. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 3.08. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture, the Indenture or the Securities, express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Securities, any benefit
of any legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
SECTION 3.09. Successors and Assigns. All agreements of the Company in
this Supplemental Indenture and the Securities shall bind its successors.
SECTION 3.10. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness.
SECTION 3.11. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein
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so provided. The Trustee, for itself and its successor or successors, accepts
the terms of the Indenture as amended by this Supplemental Indenture, and agrees
to perform the same, but only upon the terms and conditions set forth in the
Indenture (as so amended), including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee, which terms and
provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture. The
Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture other than as to the validity of its execution and
delivery by the Trustee.
Section 3.12 Governing Law. This Supplemental Indenture shall be governed
by, and construed in accordance with, the laws of the State of New York, 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.
Section 3.13 Counterparts. This Supplemental Indenture may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
LIFESTYLE FURNISHINGS
INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Treasurer and
Chief Financial Officer
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General Counsel
and Secretary
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THE BERKLINE CORPORATION
BLUE MOUNTAIN TRUCKING
CORPORATION
CUSTOM TRUCK TIRES, INC.
D-H RETAIL SPACE, INC.
DREXEL HERITAGE ADVERTISING,
INC.
DREXEL HERITAGE FURNISHINGS
INC.
DREXEL HERITAGE HOME
INSPIRATIONS, INC.
HENREDON FURNITURE INDUSTRIES,
INC.
HENREDON TRANSPORTATION
COMPANY
INTRO EUROPE, INC.
LA BARGE, INC.
LEXINGTON FURNITURE
INDUSTRIES, INC.
▇▇▇▇▇▇▇▇-▇▇▇▇▇, INC.
MARBRO LAMP COMPANY
THE ▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
Successor to ▇▇▇▇▇▇ ▇▇▇▇▇ Fabrics, Inc.,
Ametex Fabrics, Inc., Interior Fabric Design,
Inc. and ▇▇▇▇, Son & ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇ FABRICS OF N.Y.
INC.
SUNBURY TEXTILE ▇▇▇▇▇, INC.
UNIVERSAL FURNITURE LIMITED
Successor to Universal Furniture Industries,
Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
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IBJ Whitehall Bank & Trust Company, as
Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Assistant Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Secretary
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