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EXHIBIT 10.4
FOURTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(the "Amendment"), is made as of February 26, 1999, by and between VANS, INC.
("Borrower"), and BANK OF THE WEST ("Bank"), and is entered into with respect to
the Amended and Restated Loan and Security Agreement, dated as of October 31,
1997, by and between Borrower and Bank, as amended by the First Amendment to
Amended and Restated Loan and Security Agreement, dated as of February 3, 1998,
by and between Borrower and Bank, the Second Amendment to Amended and Restated
Loan and Security Agreement, dated as of May 31, 1998, by and between Borrower
and Bank and the Third Amendment to Amended and Restated Loan and Security
Agreement, dated as of May 31, 1998, by and between Borrower and Bank (the
"Agreement").
RECITALS
WHEREAS, Borrower has requested that Bank convert the principal outstanding
under the Stock Repurchase Facility into a term loan on the terms and conditions
provided herein; and
WHEREAS, Bank is willing to agree to such request, on the terms set forth
herein, provided that Borrower waives all causes of action that it may have
against Bank, as provided herein, and pays an accommodation fee, as provided
herein, and Borrower is willing to waive such causes of action and to pay such
accommodation fee in return for the requested conversion;
NOW, THEREFORE, IT IS AGREED THAT:
1. Definitions. Unless otherwise indicated, words and terms which are
defined in the Agreement shall have the same meaning where used herein.
2. Amendments. The Agreement is amended as follows:
(a) The definition of "Advance" or "Advances" in Section 1.1 is amended
to read as follows:
"Advance" or "Advances" means an advance under the Revolving Facility.
(b) The following definition is added to Section 1.1 in the proper
alphabetical position:
"Term Loan LIBOR Rate" means as of any date the LIBOR Rate that would be
in effect on such date for an Advance made as of the first Eurodollar Banking
Day of the most recently commenced calendar quarter, assuming that (i) Borrower
had made a LIBOR election under Section 2.4(a)(ii) with respect to such Advance,
(ii) Borrower had selected the three (3) month LIBOR Period, (iii) the LIBOR
Margin would be one and seven-eighths percent (1.875%) and (iv) Borrower would
not be prohibited under this Agreement from making a LIBOR election.
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(c) Section 2.14 is amended to read as follows:
2.14 Term Loan. The principal amount of Advances outstanding under the
Stock Repurchase Facility on February 27, 1999, are hereby converted into a term
loan (the "Term Loan"). The Term Loan principal shall be payable to Bank in
eight (8) quarterly installments, based on a five (5) year amortization schedule
for a term expiring February 26, 2001. Each installment, except for the last,
shall be due on the first Business Day of each June, September, December and
March, commencing June 1, 1999. The last installment shall be due on February
26, 2001. Each installment, except for the last, commencing with the installment
payable June 1, 1999, shall be in the amount of Two Hundred Fifty Thousand
Dollars ($250,000) each, and the last of such installments shall be in the
amount of the then unpaid principal balance of the Term Loan. The Term Loan
principal outstanding shall bear interest at the rate per annum equal to the
Term Loan LIBOR Rate or, at Borrower's election, the Prime Interest Rate.
Borrower's election of the Prime Interest Rate may be made as of the first day
of a calendar month by giving Bank irrevocable notice of such election not less
than three (3) Business Days prior to such first day. The Term Loan LIBOR Rate
may change as of the first Eurodollar Banking Day of each calendar quarter
without notice to Borrower. Term Loan interest payments shall be made as
provided in Section 2.4(c), and Bank may, at its option, charge such interest
against the Revolver Committed Line, in which case such interest shall
thereafter accrue interest at the Prime Interest Rate then applicable hereunder.
Any Term Loan interest not paid when due shall be compounded by becoming part of
the Obligations, and such interest shall thereafter accrue interest at the Prime
Interest Rate then applicable hereunder. Borrower shall have the right at any
time and from time to time, upon at least thirty (30) days' notice to Bank, to
prepay, in whole or in part without penalty, the Term Loan principal. All
principal prepayments shall be accompanied by payment of the interest accrued
and unpaid with respect to the prepaid principal. Partial principal prepayments
shall be applied to the Term Loan principal installments in inverse order of
maturity.
3. Conditions Precedent. This Amendment shall not take effect unless and
until all of the following conditions precedent are satisfied:
(a) Execution and Delivery. It is executed by Borrower and accepted and
executed by Bank;
(b) No Event of Default. No Event of Default or Potential Default shall
exist and the execution, delivery and performance of this Amendment by the
parties hereto shall not cause an Event of Default or a Potential Default to
occur; and
(c) Accommodation Fee. Borrower shall have paid Bank an accommodation
fee of Five Thousand Dollars ($5,000)(the "Accommodation Fee"). The
Accommodation Fee shall be fully earned by Bank upon the execution and delivery
of this Amendment and shall not be applied to any of the Bank Expenses.
Upon the satisfaction of the preceding conditions precedent, the Agreement
shall be deemed amended in accordance with this Amendment as of the date hereof.
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4. Continued Validity of Agreement. Except as amended by this Amendment,
the Agreement shall continue in full force and effect as originally constituted
and is ratified and affirmed by the parties hereto.
5. Authorization. Each party represents to the other that the individual
executing this Amendment on its behalf is the duly appointed signatory of such
party to this Amendment and that such individual is authorized to execute this
Amendment by or on behalf of such party and to take all action required by the
terms of this Amendment.
6. Amendment Expenses. All expenses, including, but not limited to,
reasonable attorneys' fees, incurred by Bank in the preparation and
implementation of this Amendment constitute Bank Expenses and as such are
payable by Borrower.
7. Waiver of Claims.
(a) Borrower hereby releases and forever discharges Bank and Bank's
directors, officers, employees and agents, from all actions, and causes of
action, judgments, executions, suits, debts, claims, demands, liabilities,
counterclaims and offsets of every character, known or unknown, direct and/or
indirect, at law or in equity, of whatever kind or nature which have arisen or
accrued through the date of this Amendment and in any way directly or indirectly
arising out of or in any way connected with the Loan Documents and the Revolving
Facility through such date.
(b) Borrower hereby waives all rights which it may have under the
provisions of California Civil Code Section 1542, which reads as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
8. Captions. Section headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything
contained in each section applies equally to this entire Amendment.
9. No Novation. This Amendment is not intended to be, and shall not be
construed to create, a novation or accord and satisfaction, and, except as
otherwise provided herein, the Agreement shall remain in full force and effect.
10. Construction of Amendment. Neither this Amendment nor any uncertainty
or ambiguity herein shall be construed or resolved against Bank on the basis
that this Amendment was drafted by Bank. On the contrary, this Amendment has
been negotiated and reviewed by both parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of the parties hereto.
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11. Severability. Each provision of this Amendment shall be severable from
every other provision of this Amendment for the purpose of determining the legal
enforceability of any specific provision.
12. Entire Agreement. This Amendment constitutes the entire agreement
between Borrower and Bank with respect to the subject matter hereof and
supersedes all prior and contemporaneous negotiations, communications,
discussions and agreements concerning such subject matter. Borrower acknowledges
and agrees that Bank has not made any representation, warranty or covenant in
connection with this Amendment.
13. Counterparts. This Amendment may be executed in any number of
counterparts, and by Bank and Borrower in separate counterparts, each of which
shall be an original, but all of which shall together constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first set forth above.
VANS, INC.
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Title: Vice President and General Counsel
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BANK OF THE WEST
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
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