EXHIBIT 10.50
AMENDMENT NO. 4 TO THE SIXTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT No. 4 TO THE SIXTH AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "AGREEMENT" or "AMENDMENT NUMBER 4") is entered into this 1st
day of August, 2001 by and among FLEET CAPITAL CORPORATION, as Administrative
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 "TRANCHE A LENDERS"), FLEET RETAIL FINANCE INC. (together
with Fleet Capital Corporation, the "Collateral Agent"), BACK BAY CAPITAL
FUNDING, LLC (the "TRANCHE B LENDER") (the Tranche A Lenders, the Tranche B
Lender and the Tranche C Lender (as hereinafter defined), being collectively,
the "LENDERS"), and RESTORATION HARDWARE, INC. (the "LEAD BORROWER" and a
"BORROWER"), and THE MICHAELS FURNITURE COMPANY, INC. (a "BORROWER" or
"MICHAELS" 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, Co-Administrative
Agent, Collateral Agent, Tranche A Lenders, Tranche B Lender, ENHANCED RETAIL
FUNDING, LLC, and XXXXXXX XXXXX CREDIT PARTNERS L.P. (collectively, the "TRANCHE
C LENDER") and Xxxxx Street Investments, LLC (as assignee of Xxxxxxx Xxxxx
Credit Partners LP) (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 ("AMENDMENT NUMBER 1"), that
certain Amendment No. 2 to the Sixth Amended and Restated Loan and Security
Agreement, dated as of March 2, 2001 ("AMENDMENT NUMBER 2"), and that certain
Amendment No. 3 to the Sixth Amended and Restated Loan and Security Agreement,
dated as of March 21, 2001 ("AMENDMENT NUMBER 3"). Pursuant to the terms of the
Loan Agreement, (i) the matters addressed in this Agreement do not require the
consent of the Tranche C Lenders even if there were any Tranche C Obligations
outstanding and (ii) there presently are no Tranche C Obligations outstanding.
All capitalized terms used herein, unless otherwise defined herein, shall have
the meanings set forth in the Loan Documents.
B. WHEREAS, the Borrowers have advised the Tranche B Lender that the
Borrowers do not presently intend to prepay the Tranche B Debt prior to the end
of the fiscal year ending in February 2002 and, in consideration of the
Borrowers' statement as to their present intention, but without committing the
Borrowers not to prepay the Tranche B Lender prior to such date, the Tranche B
Lender has agreed to the interest rate changes effected by this
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Amendment Number 4 and the Allonge to Tranche B Promissory Note executed and
delivered in connection herewith.
C. WHEREAS, the Borrowers, the Administrative Agent, the Collateral
Agent and the Amendment Parties desire to amend the Loan Agreement on the terms
and subject to the conditions of this Agreement.
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 Section 2.10(j)(i) of the Loan Agreement is hereby amended by
inserting, following the word "securities", the phrase "sold after July 31,
2001".
.2 Section 2.11(a)(vi) of the Loan Agreement is hereby amended by
inserting, in the last sentence of the text following the Margin Pricing Grid,
prior to the phrase "through September 30, 2001", the following: "commencing
March 21, 2001 through July 31, 2001 and Tier II from August 1, 2001.".
.3 Section 2.11(b)(i) of the Loan Agreement is hereby amended by
inserting, following the phrase "Fifteen and One Half Percent (15.5%) per
annum", the following: "through July 31, 2001 and Thirteen and One-Half Percent
(13.5%) per annum thereafter".
.4 Section 2.11(b)(i)(B) of the Loan Agreement is hereby amended by
inserting, in the first sentence thereof, following the phrase "12.5% per
annum", the following: "through July 31, 2001 and 11.5% per annum thereafter".
.5 Exhibit 2.9(b) of the Loan Agreement is amended to add the Allonge to
Tranche B Promissory Note as set forth in EXHIBIT 2.9(b) hereto.
ARTICLE II
CONFIRMATION OF LOAN DOCUMENTS
.1 Each Amendment Party, by its execution and delivery of this
Agreement, 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 Agreement and that each Loan Document to which such Amendment
Party is a party shall continue in full force and effect in accordance with its
terms, as it has been amended on the date hereof, and is and shall continue to
be applicable to all of the Amendment Party's obligations.
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ARTICLE III
CONDITIONS PRECEDENT
This Agreement shall become effective upon satisfaction of the following
conditions:
.1 The execution and delivery of counterparts hereof by the Borrowers,
the Guarantor, the Tranche A Lenders, the Tranche B Lender, the Collateral
Agent, the Administrative Agent and Co-Administrative Agent, such delivery of
executed counterparts to be received by the Administrative Agent on or before
August 17, 2001.
.2 The Borrowers shall have paid counsel to the Administrative Agent,
counsel to the collateral agent and counsel to each Lender all fees charged and
costs and expenses incurred by such counsel in connection with the transactions
contemplated by this Agreement, Amendment Number 3 to the Loan Agreement, and in
connection with the Loan Documents.
ARTICLE IV
MISCELLANEOUS
.1 Each Borrower and the Guarantor reaffirms and restates the
representations and warranties set forth in Article IV of the Loan Agreement, as
amended by this 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).
.2 Each Borrower 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, deliver, and
carry out the terms and provisions of this Agreement and the transactions
contemplated hereby and has taken or caused to be taken all necessary corporate
action to authorize the execution, delivery, and performance of this Agreement
and the transactions contemplated hereby;
(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, delivery and performance of this Agreement;
(c) The execution, delivery and performance of this 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 Agreement has been duly executed and delivered by a duly
authorized officer, and constitutes a legal, valid and binding obligation of it,
enforceable in accordance with its terms, subject to laws affecting the
enforcement of creditors' rights generally and the exercise of judicial
discretion in accordance with general principles of equity.
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.3 The Loan Documents, subject to the foregoing terms and conditions
provided by this Agreement, 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 Agreement. 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 Each Borrower agrees to pay, on demand, all attorneys' fees and costs
incurred in connection with the negotiation, documentation, and execution of
this Agreement. 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 Agreement.
.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.
.6 This Agreement 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.
.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.
.8 This Agreement 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.
.9 Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement 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/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Chairman Title: Chairman
THE CIT GROUP/BUSINESS CREDIT, INC. FLEET CAPITAL CORPORATION
(the "Co-Administrative Agent") (the "Administrative Agent")
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxx Xxxxxxxxxx
Title: Vice President Title: Senior Vice President
FLEET CAPITAL CORPORATION FLEET RETAIL FINANCE INC.
(a "Collateral Agent") (a "Collateral Agent")
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx By: /s/ Xxxxxx Xxxxx
Name: Xxxxxxx X. Xxx Xxxxxxxxxx Name: Xxxxxx Xxxxx
Title: Senior Vice President Title: Managing Director
FLEET CAPITAL CORPORATION THE CIT GROUP/BUSINESS CREDIT, INC.
(a "Tranche A Lender") (a "Tranche A Lender")
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: Vice President
Signature Pages to Amendment No. 4 to the Sixth Amended and Restated
Loan and Security Agreement
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BACK BAY CAPITAL FUNDING, LLC
(the "Tranche B Lender")
By: /s/ Xxxxxxx X. X'Xxxxxx
Name: Xxxxxxx X. X'Xxxxxx
Title: Director
ACKNOWLEDGED AND AGREED:
RESTORATION HARDWARE CANADA,
INCORPORATED
(the "Guarantor")
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
Signature Pages to Amendment No. 4 to the Sixth Amended and Restated
Loan and Security Agreement
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ALLONGE TO TRANCHE B PROMISSORY NOTE
By this Allonge to Tranche B Promissory Note (this "Allonge"), that
certain Tranche B Promissory Note, dated as of September 27, 2000 (the "Note"),
payable to the order of Back Bay Capital Funding, LLC, a Delaware limited
liability company, is hereby amended, effective as of September 1, 2001, as
follows:
1. The third paragraph of the Note is hereby amended by inserting,
following the phrase "Fifteen and One Half Percent (15.5%) per annum",
the following: "through August 31, 2001 and Thirteen and One-Half
Percent (13.5%) per annum thereafter".
2. Section (b) of the third paragraph of the Note is hereby amended by
inserting, in the first sentence thereof, following the phrase "12.5%
per annum:, the following: "through August 31, 2001 and 11.5% per annum
thereafter".
Except as herein expressly amended, the Note is ratified and confirmed in
all respects and shall remain in full force and effect in accordance with its
terms.
Dated: September 27, 2001 RESTORATION HARDWARE, INC., a
Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
THE MICHAELS FURNITURE
COMPANY, INC.,
a California corporation
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chairman
