EX-10.A
2
second_amendmentloan.htm
SECOND AMENDMENT TO
LOAN AGREEMENT
Exhibit
10(a)
SECOND
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
SECOND
AMENDMENT
TO LOAN AND SECURITY AGREEMENT
(this
“Second Amendment”),
is
entered into as of August 31, 2006 by and among, on the one hand, the lenders
identified on the signature pages hereof (such lenders, together with their
respective successors and permitted assigns, are referred to hereinafter each
individually as, a “Lender”
and
collectively as, the “Lenders”),
XXXXX
FARGO RETAIL FINANCE, LLC,
a
Delaware limited liability company, as the arranger and administrative agent
for
the Lenders (the “Agent”),
and,
on the other hand, THE
BOMBAY COMPANY, INC.,
a
Delaware corporation (the “Parent”),
and
each of the Parent’s Subsidiaries identified on the signature pages hereof (such
Subsidiaries, together with the Parent, are referred to hereinafter each
individually as, a “Borrower”,
and
individually and collectively, jointly and severally, as, the “Borrowers”).
WHEREAS,
the
Borrowers, the Lenders, and the Agent are parties to that certain Loan and
Security Agreement dated as of September 29, 2004, as amended by a First
Amendment to Loan and Security Agreement, dated as of November 23, 2004 (as
the
same may be amended, amended and restated or otherwise modified and in effect
from time to time, the “
Loan
Agreement”);
and
WHEREAS,
the
parties desire to amend the
Loan Agreement as hereinafter set
forth.
NOW
THEREFORE,
in
consideration of the mutual agreements contained in the
Loan Agreement and
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
§1. Defined
Terms. Terms
not
otherwise defined herein which are defined in the
Loan Agreement shall have
the
same respective meanings herein as therein.
§2. Amendment
to Exhibits and Schedules of the
Loan Agreement.
The
listing of the Exhibits and Schedules to the
Loan Agreement is hereby amended
by
inserting “Exhibit C-3 Form of Instrument of Accession” in the proper
alphabetical and numerical order therein.
§3. Amendment
to Section 1.1 of the
Loan Agreement (definition of Accordion Activation
Fee).
The
definition of “Accordion Activation Fee” in Section
1.1
of the
Loan Agreement is hereby amended by deleting such definition in its
entirety.
§4. Amendment
to Section 1.1 of the
Loan Agreement (definition of Accordion
Commitment).
The
definition of “Accordion Commitment” in Section
1.1
of the
Loan Agreement is hereby amended by deleting such definition in its
entirety.
§5. Amendment
to Section 1.1 of the Loan Agreement (definition of Applicable
Margin).
The
definition of “Applicable Margin” in Section
1.1
of the
Loan Agreement is hereby amended by (a) deleting clause (a) in the paragraph
following the table in such definition and substituting the following clause
(a)
therefore, (b) inserting the following new clause (b) therein and (c)
relettering clause (b) therein as clause “(c)”:
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(a) commencing
upon receipt by the Agent of an irrevocable written notice prior to or during
any Incremental Seasonal Period from an Authorized Person of the Administrative
Borrower’s intent to utilize the Incremental Facility and until the later of (i)
December 15 of each Incremental Seasonal Period and (ii) such time as any extant
Incremental Revolver Usage is reduced to $0, the Applicable Margin shall be
the
Applicable Margin set forth above plus 0.25%,
(b)
the
LIBOR Rate Margin for all Real Property Advances shall at all times be equal
to
2.25%, and
§6. Amendment
to Section 1.1 of the Loan Agreement (definition of
Borrowing).
The
definition of “Borrowing” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “Real Property Advances made on
the same day by the Real Property Lenders” immediately after the reference to
“Canadian Lenders” in the third line therein.
§7. Amendment
to Section 1.1 of the Loan Agreement (definition of Canadian
Availability).
The
definition of “Canadian Availability” in Section
1.1
of the
Loan Agreement is hereby amended by deleting clause (ii) therein in its entirety
and substituting the following therefore:
(ii)
the
Maximum Original Revolver Amount minus U.S. Revolver Usage,
§8. Amendment
to Section 1.1 of the Loan Agreement (definition of
Collateral).
The
definition of “Collateral” in Section
1.1
of the
Loan Agreement is hereby amended by (a) deleting “and” at the end of clause (i)
in such definition therein, (b) inserting the following new clause (j) therein,
“(j) all of its Real Property Collateral (unless otherwise released pursuant
to
Sections
6.20,
7.4(c)(iv)
or
7.5(a)),
and”
and (c) re-lettering clause (j) therein to clause “(k)”.
§9. Amendment
to Section 1.1 of the Loan Agreement (definition of
Commitment).
The
definition of “Commitment” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “, each Real Property Lender’s
Real Property Commitment” immediately after the word “Commitments” in the second
line therein.
§10. Amendment
to Section 1.1 of the Loan Agreement (definition of Defaulting
Lender).
The
definition of “Defaulting Lender” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “or a Real Property Lender”
immediately after the reference to “a U.S. Lender” in the first line
therein.
§11. Amendment
to Section 1.1 of the Loan Agreement (definition of Eligible
Transferee).
The
definition of “Eligible Transferee” in Section
1.1
of the
Loan Agreement is hereby amended by deleting “and” before clause (b) therein,
inserting “and” at the end of clause (b) therein and inserting the following new
clause (c):
(c) in
connection with Obligations of U.S. Borrowers in respect of the Real Property
Advances, the Real Property Commitment and the other rights and obligations
of
Real Property Lenders hereunder, (i) (A) any Lender hereunder and (B) any
Affiliate (other than individuals) of a Lender and (ii) so long as no Event
of
Default has occurred and is continuing, with the approval of the Administrative
Borrower (which approval of Administrative Borrower shall not be unreasonably
withheld, delayed, or conditioned) (A) a commercial bank organized under the
laws of the United States, or any state thereof, and having total assets in
excess of $250,000,000, (B) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation
and
Development or a political subdivision of any such country and which has total
assets in excess of $250,000,000, provided
that
such bank is acting through a branch or agency located in the United States,
(C)
a finance company, insurance company, or other financial institution or fund
that is engaged in making, purchasing, or otherwise investing in commercial
loans in the ordinary course of its business and having (together with its
Affiliates) total assets in excess of $250,000,000, and (D) any other Person
approved by Agent.
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§12. Amendment
to Section 1.1 of the Loan Agreement (definition of Lender and
Lenders).
The
definition of “Lender” and “Lenders” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “Real Property Lenders,”
immediately after “Canadian Lenders,” in the second line therein.
§13. Amendment
to Section 1.1 of the Loan Agreement (definition of Lender
Group).
The
definition of “Lender Group” in Section
1.1
of the
Loan Agreement is hereby amended by deleting the parenthetical therein in its
entirety.
§14. Amendment
to Section 1.1 of the Loan Agreement (definition of Loan
Documents).
The
definition of “Loan Documents” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “Mortgage and Mortgage Documents
(if applicable),” immediately after “Guaranty” in the second line
therein.
§15. Amendment
to Section 1.1 of the Loan Agreement (definition of Permitted
Dispositions).
The
definition of “Permitted Dispositions” is hereby amended by deleting “and”
before each of clauses (f) and (h) therein and inserting the following new
clause (i):
and
(i)
the entering into of real property leases in respect of any portion of the
Bombay Office Complex in the ordinary course of business.
§16. Amendment
to Section 1.1 of the Loan Agreement (definition of Permitted
Liens).
The
definition of “Permitted Liens” in Section 1.1 of the Loan Agreement is hereby
amended by:
(a) deleting
clause (n) therein in its entirety and substituting the following
therefor:
(n) (i)
prior
to a release of the Real Property Collateral in accordance with Sections
6.20,
7.4
or
7.5,
as
applicable, Liens on the Real Property Collateral as and to the extent permitted
by the Mortgage and (ii) following a release of the Real Property Collateral
in
accordance with Sections
6.20,
7.4
or
7.5,
as
applicable, Liens securing Permitted Office Building Indebtedness so long as
such Lien attaches only to the Bombay Office Complex and the proceeds thereof
(including insurance proceeds) and Liens on funds placed in an escrow account
in
connection with sale leaseback transactions permitted by Section
7.5
and in
amounts no greater than that necessary or required to consummate any sale
leaseback transaction permitted by Section
7.5
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§17. Amendment
to Section 1.1 of the Loan Agreement (definition of Permitted Office Building
Indebtedness).
The
definition of “Permitted Office Building Indebtedness” in Section
1.1
of the
Loan Agreement is hereby amended by inserting “, following a release of the Real
Property Collateral in accordance with Section
6.20,”
immediately after “means” therein.
§18. Amendment
to Section 1.1 of the Loan Agreement (definition of Pro Rata
Share).
The
definition of “Pro Rata Share” in Section
1.1
of the
Loan Agreement is hereby amended by deleting the period at the end of clause
(d)
therein and substituting a comma therefore and inserting the following new
clause (e):
(e) with
respect to a Real Property Lender’s obligation to make Real Property Advances
and receive payments of principal, interest, fees, costs, and expenses with
respect thereto, (i) prior to the Real Property Commitment being terminated
or
reduced to zero, the percentage obtained by dividing (w) such Real Property
Lender’s Real Property Commitment, by (x) the Maximum Real Property Revolver
Amount, and (ii) from and after the time that the Real Property Commitment
has
been terminated or reduced to zero, the percentage obtained by dividing (y)
the
aggregate outstanding principal amount of such Real Property Lender’s Real
Property Advances by (z) the aggregate outstanding amount of all Real Property
Advances.
§19. Amendment
to Section 1.1 of the Loan Agreement (definition of U.S.
Availability).
The
definition of “U.S. Availability” in Section
1.1
of the
Loan Agreement is hereby amended by deleting clause (i) therein in its entirety,
and substituting the following therefore:
(i)
the
Maximum Original Revolver Amount minus Canadian Revolver Xxxxx,
§00. Amendment
to Section 1.1 of the Loan Agreement (Definitions).
Section
1.1
of the
Loan Agreement is hereby amended by deleting the following definitions therein
in their entirety and substituting the following therefore:
“Accordion
Lenders”
means
any U.S. Lender which makes U.S. Advances to the U.S. Borrowers pursuant to
Section
2.2.A(h)
and
identified as an “Accordion Lender” on Schedule
C-1
to this
Agreement, as set forth after an Accordion Activation.
“Adjusted
Availability”
means
as of any date of determination, if such date is a Business Day, and determined
at the close of business on the immediately preceding Business Day, if such
date
of determination is not a Business Day, the amount as determined by Agent at
any
time, in its Permitted Discretion equal to (x) the sum of the U.S. Borrowing
Base plus
the
Canadian Borrowing Base, minus
(y) the
sum of U.S. Revolver Usage plus
Canadian
Revolver Usage (in each case, determined after giving effect to all sublimits
and Reserves then applicable hereunder).
“Advances”
means
collectively, U.S. Advances, Canadian Advances and Real Property
Advances.
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“Aggregate
Borrowing Base”
means
as of any date of determination, an amount equal to the U.S. Borrowing Base
plus
the
Canadian Borrowing Base plus
the Real
Property Borrowing Base. Notwithstanding the foregoing, that portion of the
Aggregate Borrowing Base attributable to Eligible In-Transit Inventory shall
not
exceed $15,000,000 at any time.
“Availability”
means,
as of any date of determination, if such date is a Business Day, and determined
at the close of business on the immediately preceding Business Day, if such
date
of determination is not a Business Day, the amount as determined by Agent at
any
time, in its Permitted Discretion equal to (x) the lesser of (i) the Maximum
Original Revolver Amount and (ii) the sum of the U.S. Borrowing Base
plus
the
Canadian Borrowing Base, minus
(y) the
sum of U.S. Revolver Usage plus
Canadian
Revolver Usage (in each case, determined after giving effect to all sublimits
and Reserves then applicable hereunder).
“Bombay
Office Complex”
means
the Real Property located in Tarrant County, Texas with the legal description
known as Xxx 0, Xxxxx X, Xxxxxx Addition to the City of Fort Worth, Tarrant
County, Texas, according to plat recorded in Cabinet A, Page 10625, Plat Records
of Tarrant County Texas, the office buildings and improvements thereon, the
fixtures thereon and the related equipment.
“Eligible
In-Transit Inventory”
means,
collectively, Canadian Eligible In-Transit Inventory and U.S. Eligible
In-Transit Inventory.
“Maximum
Revolver Amount”
means
the aggregate amount of all Advances and other Obligations that may be borrowed
by or made to Borrowers under this Agreement, as such amount may be increased
or
decreased from time to time in accordance with this Agreement; provided,
however,
that
the Maximum Revolver Amount shall in no event exceed (a) $135,000,000 prior
to
an Accordion Activation and (b) $185,000,000 after an Accordion Activation,
as may be reduced by Borrowers from time to time in accordance with Section
3.6.
“Minimum
Adjusted Availability Requirement”
means,
as of any date of determination, the lesser of (a) $10,000,000 and (b) 7.5%
of
the sum of the U.S. Borrowing Base plus
the
Canadian Borrowing Base.
“Required
Lenders”
means,
at any time, Lenders whose aggregate Pro Rata Shares (calculated under clause
(d) of the definition of Pro Rata Shares) equal or exceed 51%; provided,
however,
that if
a single Lender holds more than 51% of the aggregate Pro Rata Shares of all
Lenders, then “Required Lenders” shall mean such Lender plus one other
Lender.
5
“Revolver
Usage”
means
U.S. Revolver Usage, Canadian Revolver Usage and Real Property Revolver
Usage.
“Seasonal
Period”
means
the period commencing on September 15 through and including December 15 of
each
Fiscal Year.
“U.S.
Borrowing Base”
means,
as of any date of determination, an amount equal to:
(a) the
lesser of (i) 85% of the Net Retail Liquidation Value of Eligible Inventory
or
(ii) 75% of the Cost of Eligible Inventory owned by a U.S. Borrower;
provided,
however,
that
during the Seasonal Period, the advance rate shall be the lesser of 90% of
the Net Retail Liquidation Value of Eligible Inventory owned by a U.S. Borrower
and 80% of the Cost of Eligible Inventory owned by a U.S. Borrower (as to any
amounts attributable to this clause (a) the “Base
Inventory Amount”),
plus
(b) 85%
of
the face amount of Eligible Credit Card Receivables of a U.S. Borrower,
plus
(c) during
the Adjusted Seasonal Period, the Adjusted Seasonal Period Amount, plus
(d) during
the Incremental Seasonal Period, the Incremental Seasonal Period Amount,
minus
(e) the
aggregate of such Reserves as may have been established by Agent.
§21. Amendment
to Section 1.1 of the Loan Agreement (New Definitions). Section 1.1
of the
Loan Agreement is hereby amended by inserting the following new definitions
in
the proper alphabetical order:
“Appraised
Value”
means
the fair market value as determined by a FIRREA conforming appraisal report
in
form and substance and from independent appraisers satisfactory to Agent in
its
Permitted Discretion.
“Base
Inventory Amount”
has
the
meaning set forth in clause (a) of the definition of U.S. Borrowing
Base.
“Canadian
Eligible In-Transit Inventory”
means
Inventory of Bombay Canada that does not qualify as Eligible Inventory under
clause (b) of the definition of Eligible Inventory solely because it is not
at a
location in Canada set forth on Schedule
E-1
or in
transit among such locations in Canada and that meets the following criteria,
which criteria may be revised by Agent in its Permitted Discretion from time
to
time after the Closing Date:
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(a) the
Inventory was the subject of a Qualified Import Letter of Credit, or was paid
for in full by Bombay Canada,
(b) such
Inventory currently is in transit (whether by vessel, air, or land) to a
location set forth on Schedule
E-1
in
Canada that is the subject of a Bailee Acknowledgment or a Collateral Access
Agreement,
(c) title
to
such Inventory has passed to Bombay Canada,
(d) such
Inventory is insured against types of loss, damage, hazards, and risks, and
in
amounts, satisfactory to Agent in its Permitted Discretion,
(e) such
Inventory is either (1) the subject of a negotiable document of title that
(x)
is in the name of the Agent or an Approved Customs Broker and has not been
consigned to any third parties other than to the Agent or an Approved Customs
Broker (either directly or by means of endorsements), (y) was issued by the
carrier or consolidator respecting the subject Inventory, and (z) is either
(I)
in the possession of the Borrowers (and held at a location in Canada listed
on
Schedule
E-1),
the
Agent or an Approved Customs Broker or (II) the subject of a telefacsimile
copy
that Agent or Bombay Canada has received from the Underlying Issuer which issued
the Underlying Letter of Credit and as to which Agent or Bombay Canada also
has
received a confirmation from such Underlying Issuer that such document is
in-transit by air-courier to Agent, Bombay Canada or an Approved Customs Broker;
or (2) at a port of entry in a Province of Canada,
(f) Administrative
Borrower has provided a certificate to Agent that certifies that, to the best
knowledge of Borrowers, such Inventory meets all of Borrowers’ representations
and warranties contained in the Loan Documents concerning Eligible Inventory,
that Borrowers know of no reason why such Inventory would not be accepted by
the
applicable Borrower when it arrives in Canada, and that the shipment as
evidenced by the documents conforms to the related order documents,
and
(g) if
subject to a Qualified Import Letter of Credit, the Underlying Letter of Credit
has been drawn upon and the Underlying Issuer has honored such drawing and
Agent
has honored its obligations to the Underlying Issuer under the applicable
Qualified Import Letter of Credit.
Notwithstanding
the foregoing, Inventory located at a port of entry in a Province of Canada
pursuant to clause (e)(2) above shall not be included in the Canadian Borrowing
Base unless and until (i) Agent has completed a review of such Inventory the
results of which shall be satisfactory to Agent in it’s reasonable discretion
and (ii) Agent has notified Administrative Borrower in writing of its consent
to
such inclusion and to the amount of any Reserves which shall be taken in
connection with such inclusion.
Agent
may
revise from time to time the foregoing criteria with respect to Inventory being
subject to a negotiable document of title and modify such criteria to include
Inventory subject to non-negotiable documents and other related parameters
so
long as Agent shall be satisfied in its sole discretion that (i) Agent shall
have a valid and perfected first priority Lien in such Inventory and (ii)
Borrowers shall provide to Agent all other documentation, including opinions
of
counsel, satisfactory to Agent which in Agent’s opinion is appropriate to
evidence Agent’s perfected first priority Lien in such Inventory.
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“FIRREA”
means
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended.
“Incremental
Facility”
means
U.S. Advances made by each U.S. Lender to the Borrowers pursuant to clause
(d)
of the definition of U.S. Borrowing Base.
“Incremental
Revolver Usage”
means
as of any date of determination, U.S. Advances in an amount equal to the
difference between the U.S. Borrowing Base minus
the
Non-Incremental Borrowing Base.
“Incremental
Seasonal Period”
means
the period commencing on September 15 through and including December 15 of
each
of Fiscal Year 2006 and Fiscal Year 2007.
“Incremental
Seasonal Period Amount”
means
the lesser of (a) $7,500,000 and (b) an amount equal to 95% of the Net Retail
Liquidation Value of Eligible Inventory minus the Base Inventory
Amount.
“Instrument
of Accession”
has
the
meaning set forth in Section
2.2.A(h)
and
substantially in the form of Exhibit
C-3
annexed
hereto.
“Maximum
Original Revolver Amount”
means
the aggregate amount of all U.S. Advances and Canadian Advances that may be
borrowed by or made to Borrowers under this Agreement, as such amount may be
increased or decreased from time to time in accordance with this Agreement;
provided,
however,
that
the Maximum Original Revolver Amount shall in no event exceed (a) $125,000,000
prior to an Accordion Activation and (b) $175,000,000 after an Accordion
Activation, as may be reduced by Borrowers from time to time in accordance
with
Section
3.6.
“Maximum
Real Property Revolver Amount”
means
the aggregate amount of all Real Property Advances that may be borrowed by
or
made to U.S. Borrowers under this Agreement; provided,
however,
that
the Maximum Real Property Revolver Amount shall in no event exceed
$10,000,000.
“Mortgage”
means
the deed of trust, security agreement and assignment of leases and fixture
filing from the applicable Borrower to the Agent, with respect to the Real
Property Collateral and in form and substance satisfactory to Agent in its
Permitted Discretion.
“Mortgage
Documents”
means,
collectively, the Mortgage, mortgagee title insurance policies (in amounts
and
with endorsements acceptable to the Agent), surveys, environmental
questionnaires, flood hazard certifications, evidence of flood insurance, if
required, and other mortgage-related documents as the Agent may reasonably
request now or hereafter encumbering the Real Estate Collateral and in form
and
substance satisfactory to Agent in its Permitted Discretion, and as such
Mortgage Documents may be amended, amended and restated, supplemented, replaced,
or otherwise modified.
8
“Non-Incremental
Borrowing Base”
means,
as of any date of determination, an amount equal to:
(a) the
lesser of (i) 85% of the Net Retail Liquidation Value of Eligible Inventory
or
(ii) 75% of the Cost of Eligible Inventory owned by a U.S. Borrower;
provided,
however,
that
during the Seasonal Period, the advance rate shall be the lesser of 90% of
the Net Retail Liquidation Value of Eligible Inventory owned by a U.S. Borrower
and 80% of the Cost of Eligible Inventory owned by a U.S. Borrower, plus
(b) 85%
of
the face amount of Eligible Credit Card Receivables of a U.S. Borrower,
plus
(c) during
the Adjusted Seasonal Period, the Adjusted Seasonal Period Amount, minus
(d) the
aggregate of such Reserves as may have been established by Agent.
“Real
Property Advances”
has
the
meaning set forth in Section
2.1.C.
“Real
Property Availability”
means
as of any date of determination, if such date is a Business Day, and determined
at the close of business on the immediately preceding Business Day, the amount
determined by Agent at any time in its Permitted Discretion equal to the lesser
of (i) the Maximum Real Property Revolver Amount, or (ii) the Real Property
Borrowing Base minus
the Real
Property Revolver Usage (in each case, determined after giving effect to all
sublimits and Reserves then applicable hereunder).
“Real
Property Borrowing Base”
means,
as of any date of determination, an amount equal to (a) 60% of the Appraised
Value of the Real Property Collateral minus
(b)
without duplication, the aggregate of such Reserves applicable to the Real
Property Collateral as may have been established by the Agent.
“Real
Property Collateral”
means
the Real Property consisting of the Bombay Office Complex and which is subject
to the Mortgage Documents and a Lien in favor of the Agent for the benefit
of
the Lenders and upon which no other Liens exist, other than Permitted
Liens.
“Real
Property Commitment”
means
with respect to each Real Property Lender, its Real Property Commitment, as
such
Dollar amount is set forth beside such Real Property Lender’s name under the
applicable heading on Schedule
C-1.
“Real
Property Lenders”
means
Lenders which make Real Property Advances to U.S. Borrowers pursuant to such
Real Property Lender’s Real Property Commitment.
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“Real
Property Revolver Usage”
means,
as of any date of determination, the sum of the then extant amount of
outstanding Real Property Advances.
“U.S.
Eligible In-Transit Inventory”
means
Inventory of U.S. Borrowers that does not qualify as Eligible Inventory under
clause (b) of the definition of Eligible Inventory solely because it is not
at a
location in the United States set forth on Schedule
E-1
or in
transit among such locations in the United States and that meets the following
criteria, which criteria may be revised by Agent in its Permitted Discretion
from time to time after the Closing Date:
(a) the
Inventory was the subject of a Qualified Import Letter of Credit, or was paid
for in full by a U.S. Borrower,
(b) such
Inventory currently is in transit (whether by vessel, air, or land) to a
location set forth on Schedule
E-1
in the
United States that is the subject of a Bailee Acknowledgment or a Collateral
Access Agreement,
(c) title
to
such Inventory has passed to the applicable U.S. Borrower,
(d) such
Inventory is insured against types of loss, damage, hazards, and risks, and
in
amounts, satisfactory to Agent in its Permitted Discretion,
(e) such
Inventory is either (1) the subject of a negotiable document of title that
(x)
is in the name of the Agent, a U.S. Borrower or an Approved Customs Broker
and
has not been consigned to any third parties other than to the Agent, a U.S.
Borrower or an Approved Customs Broker (either directly or by means of
endorsements), (y) was issued by the carrier or consolidator respecting the
subject Inventory, and (z) is either (I) in the possession of the Borrowers
(and
held at a location in the United States listed on Schedule
E-1),
the
Agent or an Approved Customs Broker or (II) the subject of a telefacsimile
copy
that Agent or a U.S. Borrower has received from the Underlying Issuer which
issued the Underlying Letter of Credit and as to which Agent or a U.S. Borrower
also has received a confirmation from such Underlying Issuer that such document
is in-transit by air-courier to Agent, U.S. Borrower or an Approved Customs
Broker; or (2) at a port of entry in a State of the United States,
(f) Administrative
Borrower has provided a certificate to Agent that certifies that, to the best
knowledge of Borrowers, such Inventory meets all of Borrowers’ representations
and warranties contained in the Loan Documents concerning Eligible Inventory,
that Borrowers know of no reason why such Inventory would not be accepted by
the
applicable Borrower when it arrives in the United States, and that the shipment
as evidenced by the documents conforms to the related order documents,
and
(g) if
subject to a Qualified Import Letter of Credit, the Underlying Letter of Credit
has been drawn upon and the Underlying Issuer has honored such drawing and
Agent
has honored its obligations to the Underlying Issuer under the applicable
Qualified Import Letter of Credit.
Agent
may
revise from time to time the foregoing criteria with respect to Inventory being
subject to a negotiable document of title and modify such criteria to include
Inventory subject to non-negotiable documents and other related parameters
so
long as Agent shall be satisfied in its sole discretion that (i) Agent shall
have a valid and perfected first priority Lien in such Inventory and (ii)
Borrowers shall provide to Agent all other documentation, including opinions
of
counsel, satisfactory to Agent which in Agent’s opinion is appropriate to
evidence Agent’s perfected first priority Lien in such Inventory.
10
§22. Amendment
to Section 2.1.A of the Loan Agreement (U.S. Revolver
Advances).
Section
2.1.A(a)
of the
Loan Agreement is hereby amended by deleting clause (A) therein in its entirety
and substituting the following therefore:
(A)
the
Maximum Original Revolver Amount, minus the sum of (x) U.S. Revolver Usage
and
(y) Canadian Revolver Usage, or
§23. Amendment
to Section 2.1.B of the Loan Agreement (Canadian Revolver
Advances).
Section
2.1.B(a)
of the
Loan Agreement is hereby amended by (a) deleting clause (C) therein in its
entirety and substituting the following clause (C) therefore and (b) deleting
clause (1) there in its entirety and substituting the following clause (1)
therefore:
(C)
the
Maximum Original Revolver Amount, minus
the sum
of U.S. Revolver Usage plus
Canadian
Revolver Usage;
(1)
Canadian Advances pursuant to this clause (a) shall only be made by Canadian
Lenders at such times as U.S. Availability and Real Property Availability are
each equal to $0.
§24. Amendment
to Section 2.1 of the Loan Agreement (Revolver
Advances).
Section
2.1
of the
Loan Agreement is hereby amended by inserting the following new Section
2.1.C
therein
in the proper numerical order:
2.1.C Real
Property Advances.
(a) Subject
to the terms and conditions of this Agreement, and during the term of this
Agreement, the Real Property Lenders agree to make advances (“Real
Property Advances”)
to
U.S. Borrowers in an amount at any one time outstanding not to exceed such
Real
Property Lender’s Pro Rata Share of an amount equal to the lesser of (i) the
Maximum Real Property Revolver Amount or (ii) the Real Property Borrowing Base
less Real Property Revolver Usage. Each Borrowing of a Real Property Advance
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000
in
excess thereof (or, as of such date of determination, such lesser multiple
amount of Real Property Availability remaining undrawn as necessary to enable
the U.S. Borrowers to borrow all funds available pursuant to Real Property
Availability).
(b) Anything
to the contrary in this Section
2.1.C
notwithstanding, Agent shall have the right without declaring an Event of
Default, to reduce its Real Property Collateral advance rates or establish
Reserves in such amounts, and with respect to such matters, as Agent in its
Permitted Discretion shall deem necessary or appropriate, against the Real
Property Borrowing Base, including Reserves with respect to (i) sums that U.S.
Borrowers are required to pay (such as taxes, assessments, insurance premiums)
and has failed to pay under any Section of this Agreement or any other Loan
Document, (ii) amounts as determined by Agent in its Permitted Discretion based
on noncompliance with the covenants set forth in Sections
6
and
7,
and
(iii) amounts owing by U.S. Borrowers or their Subsidiaries to any Person to
the
extent secured by a Lien on, or trust over, the Real Property Collateral (other
than any existing Permitted Lien set forth on Schedule
P-1
which is
specifically identified thereon as entitled to have priority over Agent’s
Liens), which Lien or trust, in the Permitted Discretion of Agent likely would
have a priority superior to Agent’s Liens (such as Liens or trusts in favor of
mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad
valorem, excise, or other taxes where given priority under applicable law)
in
and to the Real Property Collateral.
(c) Amounts
borrowed pursuant to this Section
2.1.C
may be
repaid in a minimum principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof (or in an amount equal to the then extant amount
of
outstanding Real Property Advances) and, subject to the terms and conditions
of
this Agreement, reborrowed at any time during the term of this
Agreement.
11
§25. Amendment
to Section 2.2.A(f) of the Loan Agreement (Settlement).
Section
2.2.A(f)
of the
Loan Agreement is hereby amended by inserting “Subject
to Section 2.3(b),
“
immediately at the beginning of clause (ii) therein and substituting a lower
case “i” for the capital “I” in the first word therein.
§26. Amendment
to Section 2.2.A(h) of the Loan Agreement (Accordion
Option).
Section
2.2.A(h)
of the
Loan Agreement is hereby amended by deleting such paragraph in its entirety
and
substituting the following therefore:
(h) Accordion
Option. Unless
a
Default or an Event of Default has occurred and is then continuing, so long
as
Borrowers shall not have elected to permanently reduce the Commitments hereunder
and except as otherwise provided herein, Administrative Borrower may solicit
the
Lenders and any other lending institutions to provide the Borrowers with
additional commitments to make U.S. Advances under this Agreement in an
aggregate amount not to exceed the Accordion Amount and subject to the
limitations set forth below. Any agreement by a Lender to increase its
commitment to make U.S. Advances hereunder shall be an Accordion Activation
(“Accordion
Activation”).
Neither the Agent nor any Lender shall have any obligation to provide the
Borrowers with all or any part of such additional U.S. Commitment; provided,
that
by
execution of this Agreement, the Agent and the Lenders shall be deemed to have
consented, without the need for further or subsequent consent to such additional
U.S. Commitments which any other Lender or lending institution may agree to
provide for the U.S. Advances which may be advanced in respect thereof and
any
resulting changes in the Pro Rata Share. Any such additional U.S. Commitments
(and the U.S. Advances funded pursuant thereto) shall be otherwise treated
(and
be subject to the same terms and conditions) as U.S. Commitments and U.S.
Advances hereunder. Additional U.S. Advances may not be advanced in respect
thereof, (1) if the aggregate U.S. Commitment to be increased pursuant to this
Section
2.2.A(h)
is in
an amount which exceeds, in the aggregate, the Accordion Amount and (2) if
a
Default or Event of Default will occur as a result of such Accordion Activation.
In addition, to the extent any Lender hereunder agrees to make U.S. Advances
pursuant to a request for an Accordion Activation, U.S. Borrowers shall pay
Agent (for the ratable benefit of the Accordion Lenders, subject to any letter
agreement between Agent and Accordion Lenders), a fee in an amount to be agreed
upon by the U.S. Borrowers and the Agent. Any Lender agreeing to increase its
Commitment pursuant to this Section
2.2.A(h)
shall
execute a Confirmation of Increase in Commitment in the form of Exhibit
C-2
attached
hereto (a “Confirmation
of Increase in Commitment”)
and
any lending institution not yet a party hereto providing additional commitments
shall become a party to this Agreement (and become subject to all the rights
and
obligations of a U.S. Lender hereunder) by executing and delivering to the
Agent
an original, executed Instrument of Accession in the form of Exhibit
C-3
attached
hereto (an “Instrument
of Accession”).
On
the effective date of the Accordion Activation effected in accordance with
this
Section
2.2.A(h),
Schedule
C-1
annexed
hereto shall be deemed to be amended to reflect (x) the name, address,
Commitment, and Pro Rata Share of each U.S. Lender after giving effect to such
Accordion Activation, and (y) the Maximum Revolver Amount and U.S.
Commitments as increased by such Accordion Activation.
12
§27. Amendment
to Section 2.2.B of the Loan Agreement (Canadian Borrowing Procedures and
Settlements).
Section
2.2.B
of the
Loan Agreement is hereby amended by deleting clause (ii) in paragraph (f)
therein in its entirety and substituting the following therefore:
(ii)
Bombay Canada shall not have any liabilities in respect of U.S. Advances or
Real
Property Advances made by the U.S. Lenders or Real Property Lenders, as the
case
may be, to the U.S. Borrowers or in respect or any other Obligations of the
U.S.
Borrowers to Agent or Lenders arising from or related to U.S. Advances or Real
Property Advances
§28. Amendment
to Section 2.2.C of the Loan Agreement (Defaulting Lender; Notations; Failure
to
Perform; Notes; Additional Advances).
Section
2.2.C(a)
of the
Loan Agreement is hereby amended by inserting “, Real Property Lenders”
immediately after the reference to “U.S. Lenders” in each of lines six, eight
and twelve therein.
§29. Amendment
to Section 2.2.C(d) of the Loan Agreement (Notes).
Section
2.2.C(d)
of the
Loan Agreement is hereby amended by deleting such Section in its entirety and
substituting the following therefore:
(d) Notes.
(i)
Each U.S. Borrower shall execute and deliver on the Closing Date (or such other
date on which a U.S. Lender may become a party hereto in accordance with
Section
14.1
or an
Accordion Lender in accordance with Section
2.1.A(h))
to
Agent for each U.S. Lender which so requests a Note to evidence that U.S.
Lender’s U.S. Advances, in the principal amount of that U.S. Lender’s U.S.
Commitment and with appropriate insertions.
(ii) Upon
the
request of any Real Property Lender, each U.S. Borrower shall execute and
deliver to Agent for such Real Property Lender, a new or substituted Note (as
applicable) to evidence that Real Property Lender’s Real Property Advances, in
the principal amount of that Real Property Lender’s Real Property Commitment and
with appropriate insertions.
(iii) Bombay
Canada shall execute and deliver on the Closing Date (or such other date on
which a Canadian Lender may become a party hereto in accordance with
Section
14.1)
to
Canadian Agent for each Canadian Lender which so requests a Note to evidence
that Canadian Lender’s Canadian Advances, in the principal amount of that
Canadian Lender’s Canadian Commitment and with appropriate
insertions.
13
§30. Amendment
to Section 2.2.C(e) of the Loan Agreement (Additional
Advances).
Section
2.2.C(e)
of the
Loan Agreement is hereby amended by deleting such Section in its entirety and
substituting the following therefore:
(e) Additional
Advances.
(i)
U.S. Lenders and Canadian Lenders shall have no obligation to make additional
U.S. Advances or Canadian Advances, as the case may be, hereunder to the extent
such additional U.S. Advances or Canadian Advances would cause the sum of the
U.S. Revolver Usage plus
the
Canadian Revolver Usage to exceed the Maximum Original Revolver
Amount.
(ii) Real
Property Lenders shall have no obligation to make additional Real Property
Advances hereunder to the extent such additional Real Property Advances would
cause the Real Property Revolver Usage to exceed the Maximum Real Property
Revolver Xxxxxx.
§00. Amendment
to Section 2.2 of the Loan Agreement (Borrowing Procedures and
Settlements).
Section
2.2
of the
Loan Agreement is hereby amended by inserting the following new Section
2.2.D
therein
in the proper numerical order:
2.2.D Real
Property Borrowing Procedures.
(a) Procedure
for Borrowing.
Each
Borrowing of a Real Property Advance shall be made by an irrevocable written
request by an Authorized Person of the Administrative Borrower delivered to
Agent (which notice must be received by Agent no later than 1:00 p.m. (New
York,
New York time) on the Business Day that is the requested Funding Date with
respect to Prime Rate Loans and subject to Section
2.12(b)
with
respect to LIBOR Rate Loans, specifying (i) the amount of such Borrowing of
Real
Property Advances, and (ii) the requested Funding Date, which shall be a
Business Day. At Agent’s election, in lieu of delivering the above-described
written request, any Authorized Person of the Administrative Borrower may give
Agent telephonic notice of such request by the required time. In such
circumstances, the Administrative Borrower agrees that any such telephonic
notice will be confirmed in writing to Agent within 24 hours of the giving
of
such notice and failure to provide such written confirmation shall not affect
the validity of the request.
14
(b) Making
of Loans.
(i) Promptly
after receipt of a request for a Borrowing pursuant to Section
2.2.D(a),
Agent
shall notify the Real Property Lenders, not later than 2:00 p.m. (New York,
New
York time) on the Funding Date applicable thereto, by telecopy, telephone,
or
other similar form of transmission, of the requested Borrowing of Real Property
Advances. Each Real Property Lender shall make the amount of such Real Property
Lender’s Pro Rata Share of the requested Borrowing of Real Property Advances
available to Agent in immediately available funds, as specified by Agent, not
later than 3:00 p.m. (New York, New York time) on the Funding Date applicable
thereto. After Agent’s receipt of the proceeds of such Real Property Advances,
upon satisfaction of the applicable conditions precedent set forth in
Section
3
hereof,
Agent shall make the proceeds thereof available to the U.S. Borrowers on the
applicable Funding Date by transferring immediately available funds equal to
such proceeds received by Agent to Administrative Borrower’s Designated Account;
provided,
however,
that
Agent shall not request any Real Property Lender to make, and no Real Property
Lender shall have the obligation to make, any Real Property Advance if Agent
shall have actual knowledge that (1) one or more of the applicable conditions
precedent set forth in Section
3
will not
be satisfied on the requested Funding Date for the applicable Borrowing of
Real
Property Advances unless such condition has been waived, or (2) the requested
Borrowing of Real Property Advances would result in Real Property Availability
being less than $0 on such Funding Date.
(ii) Unless
Agent receives notice from a Real Property Lender prior to 3:00 p.m. (New York,
New York time) on the date of such Borrowing of Real Property Advances, that
such Real Property Lender will not make available as and when required hereunder
to Agent for the account of U.S. Borrowers the amount of that Real Property
Lender’s Pro Rata Share of the Borrowing of Real Property Advances, Agent may
assume that each Real Property Lender has made or will make such amount
available to Agent in immediately available funds on the Funding Date and Agent
may (but shall not be so required), in reliance upon such assumption, make
available to U.S. Borrowers on such date a corresponding amount. If and to
the
extent any Real Property Lender shall not have made its full amount available
to
Agent in immediately available funds and Agent in such circumstances has made
available to U.S. Borrowers such amount, that Real Property Lender shall on
the
Business Day following such Funding Date make such amount available to Agent,
together with interest at the Defaulting Lender Rate for each day during such
period. A notice submitted by Agent to any Real Property Lender with respect
to
amounts owing under this subsection shall be conclusive, absent manifest error.
If such amount is so made available, such payment to Agent shall constitute
such
Real Property Lender’s Real Property Advance on the date of Borrowing of Real
Property Advances for all purposes of this Agreement. If such amount is not
made
available to Agent on the Business Day following the Funding Date, Agent will
notify Administrative Borrower of such failure to fund and, upon demand by
Agent, U.S. Borrowers shall pay such amount to Agent for Agent’s account,
together with interest thereon for each day elapsed since the date of such
Borrowing of Real Property Advances, at a rate per annum equal to the interest
rate applicable at the time to the Real Property Advances composing such
Borrowing of Real Property Advances. The failure of any Real Property Lender
to
make any Real Property Advance on any Funding Date shall not relieve any other
Real Property Lender of any obligation hereunder to make a Real Property Advance
on such Funding Date, but no Real Property Lender shall be responsible for
the
failure of any other Real Property Lender to make the Real Property Advance
to
be made by such other Real Property Lender on any Funding Date.
15
§32. Amendments
to Section 2.3(a) of the Loan Agreement (Payments by
Borrowers).
Section
2.3(a)
of the
Loan Agreement is hereby amended by deleting clause (i) therein in its entirety
and substituting the following therefore:
(i) Except
as
otherwise expressly provided herein, all payments by U.S. Borrowers shall be
made to Agent’s Account for the account of Agent, U.S. Lenders or Real Property
Lenders, as applicable, and all payments by Bombay Canada shall be made to
the
account specified by Canadian Agent for the account of Canadian Lenders and
in
each case, such payments shall be made in immediately available funds, no later
than 1:00 p.m. (New York, New York time) on the date specified herein. Any
payment received by Agent or Canadian Agent, as the case may be, later than
1:00
p.m. (New York, New York time), shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue until such following Business Day.
§33. Amendments
to Section 2.3(b) of the Loan Agreement (Apportionment and Application of
Payments).
Section
2.3(b)
of the
Loan Agreement is hereby amended by deleting clause (i) therein in its entirety
and substituting the following therefore:
(i) A.Except
as
otherwise provided with respect to Defaulting Lenders and subject to
Section
2.1.B.,
aggregate principal and interest payments shall be apportioned ratably among
Lenders (according to the unpaid principal balance of the Obligations to which
such payments relate held by each Lender) and payments of fees and expenses
(other than fees or expenses that are for Agent’s separate account, after giving
effect to any letter agreements between Agent and individual Lenders) shall
be
apportioned ratably among Lenders having a Pro Rata Share of the type of
Commitment or Obligation to which a particular fee relates. Subject to
Section
2.1.B.,
all
payments shall be remitted to Agent and all such payments (other than payments
received while no Default or Event of Default has occurred and is continuing
and
which relate to the payment of principal or interest of specific Obligations
or
which relate to the payment of specific fees), and all proceeds of Accounts
or
other Collateral (other than the Real Property Collateral which shall be applied
in accordance with Section
2.3(b)(i)B
below)
received by Agent, shall be applied as follows:
1. first,
to pay
any Lender Group Expenses then due to Agent under the Loan Documents, until
paid
in full,
2. second,
to pay
any fees then due to Agent or Canadian Agent (for their separate accounts,
after
giving effect to any letter agreements between Agent or Canadian Agent and
the individual Lenders) under the Loan Documents, until paid in
full,
16
3. third,
to pay
the principal of all Canadian Swing Loans, until paid in full,
4. fourth,
ratably
to pay interest due in respect of the Canadian Advances, until paid in
full,
5. fifth,
to pay
the principal of all Canadian Advances, until paid in full,
6. sixth,
to pay
any fees then due to any or all of Lenders (after giving effect to any letter
agreements between Agent and individual Lenders) under the Loan Documents,
on a
ratable basis, until paid in full,
7. seventh,
to pay
interest due in respect of all Agent Advances, until paid in full,
8. eighth,
ratably
to pay interest due in respect of the U.S. Advances (other than Agent Advances),
until paid in full,
9. ninth,
to pay
the principal of all Swing Loans, until paid in full,
10. tenth,
to pay
the principal of all Agent Advances, until paid in full,
11. eleventh,
to pay
any Lender Group Expenses then due to Lenders under the Loan Documents, on
a
ratable basis, until paid in full,
12. twelfth,
so long
as no Cash Dominion Event has occurred and is continuing, and at Agent’s
election (which election Agent agrees will not be made if an Overadvance would
be created thereby), to pay amounts then due and owing by Administrative
Borrower or its Subsidiaries in respect of Bank Products, until paid in
full,
13. thirteenth,
so long
as no Cash Dominion Event has occurred and is continuing, to pay the principal
of all U.S. Advances, until paid in full,
14. fourteenth,
if a
Cash Dominion Event has occurred and is continuing, ratably (i) to pay the
principal of all U.S. Advances, until paid in full, (ii) to Agent, to be held
by
Agent, for the ratable benefit of Issuing Lender and Lenders, as cash collateral
in an amount up to 103% of the then extant Letter of Credit Usage until paid
in
full, (iii) to Agent, to be held by Agent, for the ratable benefit of Issuing
Lender, as cash collateral in an amount up to 103% of the then extant Acceptance
Face Amount until paid in full, and (iv) to Agent, to be held by Agent, for
the
benefit of the Agent Bank Product Provider, as cash collateral in an amount
up
to the amount of the Bank Product Reserve established prior to the occurrence
of, and not in contemplation of, the subject Event of Default until
Administrative Borrower’s and its Subsidiaries’ obligations in respect to the
then extant Bank Products extended by Agent Bank Product Provider have been
paid
in full or the cash collateral amount has been exhausted,
17
15. fifteenth,
so long
as no Cash Dominion Event has occurred and is continuing, and at Agent’s
election (which election Agent agrees will not be made if an Overadvance would
be created thereby), to pay amounts then due and owing by Administrative
Borrower or its Subsidiaries in respect of Bank Products extended by Other
Bank
Product Providers, until paid in full,
16. sixteenth,
to pay
the interest due in respect of all Real Property Advances, until paid in full,
17. seventeenth,
to pay
the principal of all Real Property Advances, until paid in full,
18. eighteenth,
if a
Cash Dominion Event has occurred and is continuing, to pay any other Obligations
(including the provision of amounts to Agent, to be held by Agent, for the
benefit of the Bank Product Providers, as cash collateral in an amount up to
the
amount determined by Agent in its Permitted Discretion as the amount necessary
to secure Administrative Borrower’s and its Subsidiaries’ obligations in respect
of the then extant Bank Products), and
19. nineteenth,
to
Borrowers (to be wired to the Designated Account) or such other Person entitled
thereto under applicable law.
B. All
proceeds of the Real Property Collateral received by the Agent, shall be applied
as follows:
1. first,
to pay
the reasonable costs and expenses paid or incurred by the Agent in gaining
possession of, maintaining, preserving, selling, preparing for sale, or
advertising to sell the Real Property Collateral, irrespective of whether a
sale
is consummated,
2. second,
to pay
the interest due in respect of all Real Property Advances, until paid in full,
3. third,
to pay
the principal of all Real Property Advances, until paid in full,
4. fourth,
to pay
any other Lender Group Expenses then due to Agent under the Loan Documents,
until paid in full,
5. fifth,
to pay
any fees then due to Agent or Canadian Agent (for their separate accounts,
after
giving effect to any letter agreements between Agent or Canadian Agent and
the
individual Lenders) under the Loan Documents, until paid in full,
6. sixth,
to pay
the principal of all Canadian Swing Loans, until paid in full,
18
7. seventh,
ratably
to pay interest due in respect of the Canadian Advances, until paid in
full,
8. eighth,
to pay
the principal of all Canadian Advances, until paid in full,
9. ninth,
to pay
any fees then due to any or all of Lenders (after giving effect to any letter
agreements between Agent and individual Lenders) under the Loan Documents,
on a
ratable basis, until paid in full,
10. tenth,
to pay
interest due in respect of all Agent Advances, until paid in full,
11. eleventh,
ratably
to pay interest due in respect of the U.S. Advances (other than Agent Advances),
until paid in full,
12. twelfth,
to pay
the principal of all Swing Loans, until paid in full,
13. thirteenth,
to pay
the principal of all Agent Advances, until paid in full,
14. fourteenth,
to pay
any Lender Group Expenses then due to Lenders under the Loan Documents, on
a
ratable basis, until paid in full,
15. fifteenth,
so long
as no Cash Dominion Event has occurred and is continuing, and at Agent’s
election (which election Agent agrees will not be made if an Overadvance would
be created thereby), to pay amounts then due and owing by Administrative
Borrower or its Subsidiaries in respect of Bank Products, until paid in
full,
16. sixteenth,
so long
as no Cash Dominion Event has occurred and is continuing, to pay the principal
of all U.S. Advances, until paid in full,
17. seventeenth,
if a
Cash Dominion Event has occurred and is continuing, ratably (i) to pay the
principal of all U.S. Advances, until paid in full, (ii) to Agent, to be held
by
Agent, for the ratable benefit of Issuing Lender and Lenders, as cash collateral
in an amount up to 103% of the then extant Letter of Credit Usage until paid
in
full, (iii) to Agent, to be held by Agent, for the ratable benefit of Issuing
Lender, as cash collateral in an amount up to 103% of the then extant Acceptance
Face Amount until paid in full, and (iv) to Agent, to be held by Agent, for
the
benefit of the Agent Bank Product Provider, as cash collateral in an amount
up
to the amount of the Bank Product Reserve established prior to the occurrence
of, and not in contemplation of, the subject Event of Default until
Administrative Borrower’s and its Subsidiaries’ obligations in respect to the
then extant Bank Products extended by Agent Bank Product Provider have been
paid
in full or the cash collateral amount has been exhausted,
19
18. eighteenth,
so long
as no Cash Dominion Event has occurred and is continuing, and at Agent’s
election (which election Agent agrees will not be made if an Overadvance would
be created thereby), to pay amounts then due and owing by Administrative
Borrower or its Subsidiaries in respect of Bank Products extended by Other
Bank
Product Providers, until paid in full,
19. nineteenth,
if a
Cash Dominion Event has occurred and is continuing, to pay any other Obligations
(including the provision of amounts to Agent, to be held by Agent, for the
benefit of the Bank Product Providers, as cash collateral in an amount up to
the
amount determined by Agent in its Permitted Discretion as the amount necessary
to secure Administrative Borrower’s and its Subsidiaries’ obligations in respect
of the then extant Bank Products), and
20. twentieth,
to
Borrowers (to be wired to the Designated Account) or such other Person entitled
thereto under applicable law.
§34. Amendments
to Section 2.11 of the Loan Agreement (Credit
Instruments).
(a) Section
2.11(a)(iii)
of the
Loan Agreement is hereby amended by deleting such Section in its entirety and
substituting the following therefore:
(iii) the
Letter of Credit Usage would exceed the Maximum Original Revolver Amount less
the then extant amount of outstanding U.S. Advances plus
Canadian
Advances plus
the then
extant Acceptance Face Amount.
(b) Section
2.11(c)
of the
Loan Agreement is hereby amended by inserting “Original” immediately after
“Maximum” and before “Revolver” in clause (ii)(B) therein.
§35. Amendment
to Section 2.12(b) of the Loan Agreement (LIBOR
Election).
Section
2.12(b)
of the
Loan Agreement is hereby amended by inserting the following new phrase “or Real
Property Advances” immediately after the reference to “U.S. Advances” in the
first line of paragraph (i) therein.
§36. Amendment
to Section 4.6 of the Loan Agreement (Right to Inspect; Inventories, Appraisals
and Audits, Environmental Assessments).
Section
4.6
of the
Loan Agreement is hereby amended by inserting the following new paragraph (d)
therein:
(d) Notwithstanding
anything in this Section
4.6
to the
contrary, Agent shall not have the right to perform or have performed an
appraisal of the Real Property Collateral more frequently than once in a twelve
month period, absent the written consent of the Xxxxxx.
§00. Amendment
to Section 5.8(c) of the Loan Agreement (Due Authorization: No
Conflict).
The
Loan Agreement is hereby amended by inserting “and the recording of the
Mortgage” immediately following the word “Canada” in the second line
therein.
20
§38. Amendment
to Section 6.18 of the Loan Agreement (Inactive
Subsidiaries).
Section
6.18
of the
Loan Agreement is hereby amended by inserting “Xxxxxx Street and” immediately
before the reference to “BMAJ, Inc.” in the first line therein.
§39. Section
6.20 of the Loan Agreement (Real Estate Collateral).
The
Loan Agreement is hereby amended to insert a new Section 6.20
thereto
immediately following Section 6.19
thereof
to read as follows:
6.20. Real
Property Collateral.
Following the Administrative Borrower’s written request therefor, Agent shall
release its Lien upon the Real Property Collateral, at the expense of the
Borrowers, so long as (a) Borrowers shall have provided Agent with fifteen
(15)
Business Days’ prior notice thereof, (b) there shall not exist any extant Real
Property Advances and Real Property Revolver Usage shall be equal to $0, (c)
at
the time of such request and after giving effect thereto no Default or Event
of
Default shall have occurred and be continuing, (d) immediately after giving
effect thereto, Availability shall be at least equal to $20,000,000 and the
Administrative Borrower shall have delivered to Agent updated Projections and
a
Compliance Certificate evidencing the maintenance of Availability of at least
$20,000,000 for the period from the date of such release through the end of
the
Fiscal Period ending immediately subsequent to the Fiscal Period in which such
release shall have occurred, and (e) Section 2.2.D hereof and references to
Real
Property Availability, Real Property Borrowing Base and Real Property Commitment
shall be of no further force and effect.
§40. Amendment
to Section 7.1 of the Loan Agreement (Indebtedness).
Section
7.1
of the
Loan Agreement is hereby amended by inserting “at any time following the release
of the Real Property Collateral in accordance with Section
6.20,”
immediately before “Permitted Office Building Indebtedness” in clause (e)
therein.
§41. Amendment
to Section 7.3 of the Loan Agreement (Restrictions on Negative Pledges and
Upstream Limitations).
Section
7.3
of the
Loan Agreement is hereby amended by inserting “at any time following the release
of the Real Property Collateral in accordance with Section
6.20,”
immediately before “Permitted Office Building Indebtedness” in clause (i) in the
last paragraph therein.
§42. Amendment
to Section 7.4 of the Loan Agreement (Restrictions on Fundamental
Changes).
Section
7.4
of the
Loan Agreement is hereby amended by deleting clause (iv) of paragraph (c)
therein in its entirety and substituting the following therefore:
(iv)
the
sale, in one transaction or a series of transactions, of the Real Property
Collateral, provided,
however,
that
prior to a release of the Real Property Collateral in accordance with
Section
6.20,
the
Borrowers shall comply with the following subclauses (A) through (D): (A) no
Event of Default has occurred and is continuing or would result therefrom,
(B)
before entering into a written commitment or enforceable contract for the sale
of the Real Property Collateral, the Administrative Borrower shall have provided
the Agent with ten (10) Business Days’ prior written notice thereof, (C)
immediately after giving effect thereto, Availability shall be at least equal
to
$20,000,000 and the Administrative Borrower shall have delivered to Agent
updated Projections and a Compliance Certificate evidencing the maintenance
of
Availability of at least $20,000,000 for the period from the date of such sale
through the end of the Fiscal Period ending immediately subsequent to the Fiscal
Period in which such sale shall have occurred, and (D) the net proceeds of
such
sale transaction(s) shall be deposited directly into Agent’s Account to be
applied on account of the Obligations in accordance with Section 2.3(b)
as
proceeds of Collateral;
21
§43. Amendment
to Section 7.5 of the Loan Agreement (Disposal of Assets; Sale and
Leaseback).
Section
7.5
of the
Loan Agreement is hereby amended by deleting clause (a) therein in its entirety
and substituting the following therefore:
(a)
a
sale leaseback transaction in respect of the Real Property Collateral,
provided,
however,
that
prior to a release of the Real Property Collateral in accordance with
Section
6.20,
the
Borrowers shall comply with the following subclauses (i) through (iv): (i)
no
Event of Default has occurred and is continuing or would result therefrom,
(ii)
before entering into a written commitment or enforceable contract for the sale
and leaseback of the Real Property Collateral, the Administrative Borrower
shall
have provided the Agent with ten (10) Business Days’ prior written notice
thereof, (iii) immediately after giving effect thereto, Availability shall
be at
least equal to $20,000,000 and the Administrative Borrower shall have delivered
to Agent updated Projections and a Compliance Certificate evidencing the
maintenance of Availability of at least $20,000,000 for the period from the
date
of such transaction through the end of the Fiscal Period ending immediately
subsequent to the Fiscal Period in which such transaction shall have occurred,
and (iv) the net proceeds of such sale leaseback transaction shall be deposited
directly into Agent’s Account to be applied on account of the Obligations in
accordance with Section 2.3(b)
as
proceeds of Collateral, and
§44. Amendment
to Section 7.14 of the Loan Agreement (Suspension).
Section
7.14
of the
Loan Agreement is hereby amended by deleting such Section in its entirety and
substituting the following therefore:
7.14. Suspension.
Suspend
or go out of a substantial portion of their business, other than in relation
to
Permitted Dispositions or transactions expressly permitted by Sections
7.4
and
7.5.
§45. Amendment
to Section 14.1 of the Loan Agreement (Assignments and
Participations).
Section
14.1(a)
of the
Loan Agreement is hereby amended by inserting “in respect of the U.S. Commitment
or the Canadian Commitment, and $2,500,000 in respect of the Real Property
Commitment ” immediately after the reference “$10,000,000” in the fourth line
therein.
§46. Amendment
to Section 15.1 of the Loan Agreement (Amendments and
Waivers).
Section
15.1
of the
Loan Agreement is hereby amended by deleting clause (j) therein in its entirety
and substituting the following clause (j) therefore:
(j) change
the definition of “Aggregate Borrowing Base” “U.S. Borrowing Base”, “Canadian
Borrowing Base” or the definitions of “Eligible Accounts”, “Eligible Credit Card
Receivables”, “Eligible Inventory”, “Maximum Original Revolver Amount” “Maximum
Revolver Amount” or any component definition contained in the foregoing terms,
or change Section
2.1(b);
or
22
§47. Amendment
to Section 16.15 (Collateral Matters).
Section
16.15
of the
Loan Agreement is hereby amended by deleting the word “or” immediately prior to
clause (iv) in paragraph (a) therein and inserting the following immediately
at
the end of such clause (iv) “or (v) in accordance with Section 6.20.”
§48. Amendment
to Exhibit B-1 to the Loan Agreement (Form of Borrowing Base
Certificate).
Exhibit
B-1 to the Loan Agreement is hereby amended by deleting Exhibit B-1 attached
thereto in its entirety and replacing such Exhibit B-1 with the Exhibit B-1
attached hereto as Exhibit
A.
§49. Amendment
to Exhibits to the Loan Agreement (New Exhibit C-3).
The
Exhibits
to the Loan Agreement are hereby amended by adding Exhibit C-3, Form of
Instrument of Accession, in the from of Exhibit C-3 attached hereto as
Exhibit
B.
§50. Amendment
to Schedule C-1 to the Loan Agreement (Commitments).
Schedule
C-1 to the Loan Agreement is hereby amended by deleting Schedule C-1 attached
thereto in its entirety and replacing such Schedule C-1 with the Schedule C-1
attached hereto as Exhibit
C.
§51. Amendment
to Schedule E-1 to the Loan Agreement (Eligible Inventory
Locations).
Schedule
E-1 to the Loan Agreement is hereby amended by deleting Schedule E-1 attached
thereto in its entirety and replacing such Schedule E-1 with the Schedule X-0
xxxxxxxx xxxxxx xx Xxxxxxx
X.
§00. Amendment
to Schedule P-1 to the Loan Agreement (Permitted Liens).
Schedule P-1 to the Loan Agreement is hereby amended by deleting Schedule P-1
attached thereto
in its entirety and replacing such Schedule P-1 with the Schedule P-1 attached
hereto as Exhibit
E.
§53. Acknowledgement
of the Lenders Regarding Xxxxxx Street.
Each of
the Lenders and the Borrowers acknowledge and agree that Xxxxxx Street shall
no
longer be deemed a “Borrower” under the Loan Agreement.
§54. Conditions
to Effectiveness.
This
Second Amendment shall not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of the Agent:
(a) This
Second Amendment shall have been duly executed and delivered by the Borrowers,
the Agent, and the Lenders. The Agent shall have received a fully executed
copy
hereof.
23
(b) The
Borrowers shall have paid to the Agent, for the account of the Lenders, an
amendment fee in an amount equal to $75,000.
(c) The
Agent
shall have received the Mortgage duly executed by the parties thereto and all
related Mortgage Documents, as applicable.
(d) The
Agent
shall have received a new Note duly executed by the Borrowers for each Lender
requesting a new Note.
(e) The
Agent
shall have completed its business, legal, and collateral due diligence,
including obtaining, a report of an independent collateral auditor satisfactory
to Agent (which may be affiliated with one of the Lenders) with respect to
the
Books and Accounts and Inventory components included in the Aggregate Borrowing
Base, including Eligible In-Transit Inventory (in Canada) and verification
of
Borrowers’ representations and warranties to the Lender Group, the results of
which shall be satisfactory to the Agent.
(f) This
Second Amendment or any additional instruments and documents that the Agent
and
its counsel may have reasonably requested shall have been delivered and/or
executed and shall be in form and substance satisfactory to Agent in its
Permitted Discretion.
(g) Agent
shall have received a certificate
satisfactory to Agent certifying that, as of the date hereof, there has been
no
change, amendment or other modification to
each
Borrower’s Governing Documents as of the Closing Date.
(h) Agent
shall have received a certificate from the Secretary of each Borrower attesting
to the resolutions of such Borrower’s Board of Directors authorizing its
execution, delivery, and performance of this Second Amendment and the other
Loan
Documents to which such Borrower is a party and authorizing specific officers
of
such Borrower to execute the same.
(i) Agent
shall have received a certificate of status with respect to each Borrower,
dated
on or about the date hereof, such certificate to be issued by the appropriate
officer of the jurisdiction of organization of such Borrower, which certificate
shall indicate that such Borrower is in good standing in such
jurisdiction.
(j) No
Default or Event of Default shall have occurred and be continuing, both before
and immediately after giving effect to the execution of this Second
Amendment.
(k) No
Material Adverse Change shall have occurred.
§55. Representations
and Warranties.
Each of
the Borrowers hereby represents and warrants to the Lenders as
follows:
(a) Representations
and Warranties in the Loan Agreement.
The
representations and warranties of each of the Borrowers contained in the Loan
Agreement, after giving effect to this Second Amendment, are true and correct
in
all material respects on the date hereof, except to the extent of changes
resulting from transactions or events contemplated or permitted by the Loan
Agreement and the other Loan Documents, or to the extent that such
representations and warranties relate expressly to an earlier date.
24
(b) Ratification,
Etc.
Except
as expressly amended hereby, the Loan Agreement, the First Amendment, the other
Loan Documents and all documents, instruments and agreements related thereto,
are hereby ratified and confirmed in all respects and shall continue in full
force and effect. The Loan Agreement and First Amendment, together with this
Second Amendment, shall be read and construed as a single agreement. All
references in the Loan Documents to the Loan Agreement or any other Loan
Document shall hereafter refer to the Loan Agreement or any other Loan Document
as amended hereby.
(c) Authority,
Etc.
The
execution and delivery by each of the Borrowers of this Second Amendment and
the
performance by each of the Borrowers of all of their agreements and obligations
under the Loan Agreement as amended and the other Loan Documents hereby are
within the corporate authority of each of the Borrowers and have been duly
authorized by all necessary corporate action on the part of the
Borrowers.
(d) Enforceability
of Obligations.
This
Second Amendment and the Loan Agreement as amended by the First Amendment and
the other Loan Documents hereby constitute the legal, valid and binding
obligations of the Borrowers enforceable against the Borrowers in accordance
with their terms, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally
the
enforcement of, creditors’ rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
§56. No
Other Amendments.
Except
as expressly provided in this Second Amendment, all of the terms and conditions
of the Loan Agreement as amended by the First Amendment and the other Loan
Documents remain in full force and effect. Nothing contained in this Second
Amendment shall in any way prejudice, impair or effect any rights or remedies
of
any Lender or the Borrowers under the Loan Agreement or the other Loan
Documents.
§57. Execution
in Counterparts.
This
Second Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, but which together shall constitute one instrument.
Delivery of an executed counterpart of this Amendment by telefacsimile shall
be
equally as effective as delivery of an original executed counterpart of this
Amendment.
§58. Miscellaneous.
THIS SECOND AMENDMENT SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
The
captions in this Second Amendment are for convenience of reference only and
shall not define or limit the provisions hereof.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
25
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Second Amendment as of the date first above
written.
BORROWERS:
THE
BOMBAY COMPANY, INC.
By:
/S/XXXXXX X. XXXXXXX
Name:
Xxxxxx X. Xxxxxxx
Title:
Senior Vice President, Chief Financial Officer and Treasurer
BBA
HOLDINGS, INC.
By:
/S/XXXXXXX X. XXXXXX
Name:
Xxxxxxx X. Xxxxxx
Title:
President
BOMBAY
INTERNATIONAL, INC.
By:
/s/XXXXXX X. XXXXXXX
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
THE
BOMBAY FURNITURE COMPANY OF CANADA INC.
By:
/s/XXXXXX X. XXXXXXX
Name: Xxxxxx
X. Xxxxxxx
Title:
Vice President
26
XXXXX
FARGO RETAIL FINANCE, LLC,
as Agent
and as a U.S. Lender
By:
/s/XXXX XXXXXXXX
Name:
Xxxx
Xxxxxxxx
Title:
Senior Vice President
27
NATIONAL
CITY BUSINESS CREDIT, INC.,
as
Syndication Agent and as a U.S. Lender
By:
/s/XXXXX XXXXXX
Name:
Xxxxx
Xxxxxx
Title:
Vice President
28
CONGRESS
FINANCIAL CORPORATION (SOUTHWEST), as
Documentation Agent and as a U.S. Lender
By:
/s/XXXX XXXXXXX
Name:
Xxxx
Galvovic
Title:
Vice President
29
XXXXX
FARGO FINANCIAL CANADA (f/d/b
as
Trans Canada Credit Corporation), as Canadian Agent and as Canadian
Lender
By:
/s/XXXX XXXXXX
Name:
Xxxx
Xxxxxx
Title:
Vice President
30
RATIFICATION
OF GUARANTY
Each
of
the undersigned Guarantors hereby acknowledges and consents to the foregoing
Second Amendment, and agrees that its Guaranty, as applicable, from such
Guarantor in favor of the Agent for the benefit of the Lenders and all other
Loan Documents to which each of the Guarantors is a party remain in full force
and effect, and each of the Guarantors confirms and ratifies all of its
obligations thereunder.
THE
BOMBAY COMPANY, INC.
By:
/s/XXXXXX X. XXXXXXX
Name: Xxxxxx
X. Xxxxxxx
Title:
Senior Vice President, Chief Financial Officer and Treasurer
BBA
HOLDINGS, INC.
By:
/s/XXXXXXX X. XXXXXX
Name: Xxxxxxx
X. Xxxxxx
Title:
President
BOMBAY
INTERNATIONAL, INC.
By:
/s/XXXXXX X. XXXXXXX
Name: Xxxxxx
X. Xxxxxxx
Title:
Vice President
31
Exhibit
A
Exhibit
B-1 - Form of Borrowing Base Certificate
32
Exhibit
B
Exhibit
C-3
Form
of
Instrument of Accession
33
Exhibit
C
34
Schedule
C-1
Commitments
as of August 31, 2006
|
Lender
|
Canadian
Commitment
|
U.S.
Commitment
|
Real
Property Commitment
|
|
Xxxxx
Fargo Retail Finance, LLC
|
$0
|
$65,000,000*
|
$10,000,000
|
|
National
City Business Credit, Inc.
|
$0
|
$25,000,000
|
$0
|
|
Congress
Financial Corporation (Southwest)
|
$0
|
$35,000,000
|
$0
|
|
Trans
Canada Credit Corporation
|
$18,000,000*
|
$0
|
$0
|
|
All
Lenders
|
$18,000,000
|
$125,000,000
|
$10,000,000
|
*
The
Commitments of Xxxxx Fargo Retail Finance, LLC and Trans Canada Credit
Corporation
are
more
specifically subject to Section
2.1.B(a).
35
Exhibit
D
Schedule
E-1 - Eligible Inventory Locations
36
Exhibit
E
Schedule
P-1 - Permitted Liens
