EXHIBIT 10.4
AMENDMENT NO. 5 TO THE SIXTH AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
This AMENDMENT No. 5 TO THE SIXTH AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (this "AMENDMENT") is entered into this 1st day of May, 2002
by and among FLEET CAPITAL CORPORATION, as Administrative Agent and as
Collateral Agent, The CIT GROUP/BUSINESS CREDIT, INC., as Co-Administrative
Agent, the syndicate of lenders identified as the Tranche A Lenders in the Loan
Agreement referred to below (the "LENDERS") and RESTORATION HARDWARE, INC. (the
"LEAD BORROWER" and a "BORROWER"), and THE MICHAELS FURNITURE COMPANY, INC. (a
"BORROWER" and, together with the Lead Borrower, the "BORROWERS") (each, an
"AMENDMENT PARTY" and, collectively, the "AMENDMENT PARTIES"), and is made with
reference to the following facts:
RECITALS
A. WHEREAS, Borrowers, the Administrative Agent, the
Co-Administrative Agent, the Collateral Agent, the Lenders and certain other
lenders (each a "PARTY" and, collectively, the "PARTIES") have previously
entered into that certain Sixth Amended and Restated Loan and Security Agreement
dated as of September 27, 2000 (as amended, modified or supplemented from time
to time, the "LOAN AGREEMENT") and various agreements and instruments collateral
thereto (collectively with the Loan Agreement, the "LOAN DOCUMENTS"). The
Parties also entered into that certain Limited Extension Agreement and Amendment
No. 1 to the Sixth Amended and Restated Loan and Security Agreement, dated as of
February 3, 2001, that certain Amendment No. 2 to the Sixth Amended and Restated
Loan and Security Agreement, dated as of March 2, 2001, that certain Amendment
No. 3 to the Sixth Amended and Restated Loan and Security Agreement, dated as of
March 21, 2001, and that certain Amendment No. 4 to the Sixth Amended and
Restated Loan and Security Agreement, dated as of September 27, 2001. All
capitalized terms used herein, unless otherwise defined herein, shall have the
meanings set forth in the Loan Documents.
B. WHEREAS, the Amendment Parties desire to amend the Loan
Agreement on the terms and subject to the conditions of this Amendment.
NOW THEREFORE, in consideration of the foregoing recitals and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Amendment Parties agree as follows:
ARTICLE I
AMENDMENTS TO LOAN AGREEMENT
1.1 Section 2.20(b) of the Loan Agreement is hereby amended by
deleting clause (i) thereof and inserting the following in lieu thereof:
"(i) The aggregate Stated Amount of all L/C's then outstanding
(giving effect to the L/C whose issuance is requested) does not exceed
Twenty-five Million Dollars ($25,000,000)."
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1.2 Section 5.10(c) of the Loan Agreement is hereby amended by
adding the following at the end thereof:
"; provided that the first such appraisal in calendar year 2002
shall be conducted as of May 15, 2002."
1.3 Section 5.12(d) of the Loan Agreement is hereby amended by
deleting clause (ii) thereof and inserting the following in lieu thereof:
"(ii) For the fiscal year ending February 1, 2003 ("Fiscal Year
2002"): Seventeen Million Dollars ($17,000,000.00) plus the amount
allowed for Fiscal Year 2001 but not expended in such year, plus Fifty
Percent (50%) of the amount by which the Borrowers' actual Consolidated
EBITDA for Fiscal Year 2001 exceeds Sixteen Million Dollars
($16,000,000.00)."
ARTICLE II
CONFIRMATION OF LOAN DOCUMENTS
The Guarantor, by its execution and delivery of this Amendment,
irrevocably and unconditionally ratifies and confirms that it consents to the
terms and conditions of the Loan Agreement as it has been amended by this
Amendment and that each Loan Document to which the Guarantor is a party shall
continue in full force and effect in accordance with its terms, and is and shall
continue to be applicable to all of the Guarantor's obligations. The Guarantor
acknowledges and agrees that (i) notwithstanding the conditions to effectiveness
set forth in this Amendment, the Guarantor is not required by the terms of the
Loan Agreement or any other Loan Document to consent to the amendments to the
Loan Agreement effected pursuant to this Amendment and (ii) nothing in the Loan
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of the Guarantor to any future amendments to the Loan Agreement.
ARTICLE III
CONDITION PRECEDENT
This Amendment shall become effective upon the execution and
delivery to the Administrative Agent of counterparts hereof by the Borrowers,
the Guarantor, the Lenders, the Collateral Agent, the Administrative Agent and
the Co-Administrative Agent.
ARTICLE IV
MISCELLANEOUS
4.1 Each of the Borrowers and the Guarantor reaffirms and
restates the representations and warranties set forth in Article IV of the Loan
Agreement, as amended by this Amendment (the "AMENDED AGREEMENT"), and, after
giving effect to the transactions contemplated herein, all such representations
and warranties shall be true and correct in all material respects on and as of
the date hereof (except insofar as such representations and warranties expressly
relate to an earlier date).
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4.2 Each of the Borrowers and the Guarantor warrants and
represents (which warranty and representation shall survive the execution and
delivery hereof) that:
(a) It has the corporate power and authority to execute and
deliver this Amendment, and to carry out the terms and provisions of this
Amendment and the Amended Agreement and the transactions contemplated hereby and
thereby, and has taken or caused to be taken all necessary corporate action to
authorize the execution and delivery of this Amendment and the performance of
this Amendment and the Amended Agreement and the transactions contemplated
hereby and thereby;
(b) No consent of any other person (including, without
limitation, its shareholders or creditors), and no action of, or filing with any
governmental or public body or authority is required to authorize, or is
otherwise required in connection with the execution and delivery of this
Amendment and the performance of this Amendment and the Amended Agreement;
(c) The execution and delivery of this Amendment and the
performance of this Amendment and the Amended Agreement will not violate any
law, statute or regulation, or any order or decree of any court or governmental
instrumentality, or conflict with, or result in the breach of, or constitute a
default under any contractual obligation; and
(d) This Amendment has been duly executed and delivered by a duly
authorized officer, and this Amendment and the Amended Agreement constitute a
legal, valid and binding obligation of it, enforceable in accordance with their
terms, subject to laws affecting the enforcement of creditors' rights generally
and the exercise of judicial discretion in accordance with general principles of
equity.
4.3 The Loan Documents, subject to the foregoing terms and
conditions provided by this Amendment, constitute the complete agreement of the
Parties with respect to the subject matters referred to herein and supersede all
prior or contemporaneous negotiations, promises, agreements, or representations,
all of which have become merged and finally integrated into the Loan Documents
and this Amendment. No agreements or undertakings varying, modifying, amending,
extending, discharging or terminating the same shall be binding upon any Party
unless in writing signed by a duly authorized official or agent thereof. No
waiver by any Party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
4.4 Each Borrower agrees to pay, on demand, all attorneys' fees
and costs incurred in connection with the negotiation, documentation, and
execution of this Amendment. If any legal action or proceeding shall be
commenced at any time by any Party in connection with its interpretation or
enforcement, the prevailing Party or Parties in such action or proceeding shall
be entitled to reimbursement of its reasonable attorneys' fees and costs in
connection therewith, in addition to all other relief to which the prevailing
Party or Parties may be entitled. Each of the Amendment Parties waives its right
to a trial by jury in any action to enforce, defend, or interpret, or otherwise
concerning this Amendment.
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4.5 Except as herein expressly amended, the Loan Agreement is
ratified and confirmed in all respects and shall remain in full force and effect
in accordance with its terms.
4.6 This Amendment and all rights and obligations hereunder,
including matters of construction, validity, and performance, shall be governed
by and construed under the laws of the Commonwealth of Massachusetts and shall
inure to the benefit of and binding upon the successors, heirs and assigns of
the Parties.
4.7 All references to the Loan Agreement contained in the Loan
Agreement and the other Loan Documents and the other documents and instruments
delivered pursuant to or in connection therewith shall mean the Loan Agreement,
as amended hereby and as may in the future be amended, restated, supplemented or
modified from time to time.
4.8 This Amendment may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
4.9 Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
RESTORATION HARDWARE, INC. THE MICHAELS FURNITURE COMPANY, INC.
(the "Lead Borrower" and a "Borrower") (a "Borrower")
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------ ----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
---------------------------------- --------------------------------
Title: VP/CFO Title: EVP & COO
--------------------------------- -------------------------------
FLEET CAPITAL CORPORATION THE CIT GROUP/BUSINESS CREDIT, INC.
(the "Administrative Agent") (the "Co-Administrative Agent")
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxxxxx Name: Xxxxx X. Xxxxxxxxx
---------------------------------- --------------------------------
Title: Senior Vice President Title: V.P.
----------------------------- -------------------------------
FLEET CAPITAL CORPORATION FLEET CAPITAL CORPORATION
(a "Collateral Agent") (a "Lender")
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
------------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxxxxx Name: Xxxxxxx X. Xxx Xxxxxxxxxx
---------------------------------- --------------------------------
Title: Senior Vice President Title: Senior Vice President
--------------------------------- -------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
(a "Lender")
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------------
Title: V.P.
---------------------------------
Signature Pages to Amendment No. 5 to the Sixth Amended and Restated
Loan and Security Agreement
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Acknowledged and Agreed:
RESTORATION HARDWARE CANADA, INCORPORATED
(the "Guarantor")
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
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Title: Secretary
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Signature Pages to Amendment No. 5 to the Sixth Amended and Restated
Loan and Security Agreement
S-2
