EXHIBIT 10.3
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AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is entered into as of June 1, 2006 (the "Effective Date"), by and among, on the
one hand, the lender identified on the signature page hereof (such lender,
together with its successors and assigns, is referred to hereinafter as the
"Lender"), XXXXX FARGO RETAIL FINANCE II, LLC, as collateral agent and
administrative agent (the "Agent") for the Lender and any other holder of
Obligations (as defined in the Loan Agreement referred to below) and, on the
other hand, HAROLD'S STORES, INC., an Oklahoma corporation ("Parent"), HAROLD'S
FINANCIAL CORPORATION, an Oklahoma corporation ("Harold's Finance"), HAROLD'S
DIRECT, INC., an Oklahoma corporation ("Harold's Direct"), HAROLD'S STORES OF
TEXAS, L.P., a Texas limited partnership ("Harold's Texas"), and HAROLD'S OF
JACKSON, INC., a Mississippi corporation ("Harold's Mississippi", and
collectively with Harold's Texas, Harold's Direct, Harold's Finance and Parent,
the "Borrowers" and each, a "Borrower").
BACKGROUND
FACT ONE: Lender, Agent, the Borrowers, and Harold's Stores of Georgia,
L.P., a Georgia limited partnership ("Harold's Georgia"), entered into that
certain Loan and Security Agreement, dated as of February 5, 2003, as amended by
that certain Amendment No. 1 to Loan and Security Agreement dated July 10, 2003,
by and among Lenders, Agent, Borrowers, and Harold's Georgia, that certain
Amendment No. 2 to Loan and Security Agreement dated April 29, 2004, by and
among Lenders, Agent, the Borrowers and Harold's Georgia, and that certain
Amendment No. 3 to Loan and Security Agreement dated January 26, 2006, by and
among Lenders, Agent, the Borrowers (as so amended, the "Loan Agreement"),
pursuant to which Lender has agreed to make loans and other financial
accommodations to, or for the benefit of, Borrowers on the terms and otherwise
subject to the conditions and limitations contained therein.
FACT TWO: Harold's Georgia has been dissolved with the consent and
agreement of Agent and Lender.
FACT THREE: Borrowers have requested that Lender and Agent agree to
modify certain terms and conditions set forth in the Loan Agreement in the
manner set forth in this Amendment.
FACT FOUR: Lender and Agent have agreed to modify certain terms and
conditions set forth in the Loan Agreement in the manner set forth in this
Amendment, subject in all cases to the fulfillment of the conditions set forth
in this Amendment.
NOW, THEREFORE, Lender, Agent and the Borrowers hereby modify,
supplement and amend the Loan Agreement as follows:
1. INCORPORATION OF DEFINITIONS. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, have the meanings assigned to such
terms in the Loan Agreement, as amended hereby.
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 1
2. AMENDMENTS AND ADDITIONS TO LOAN AGREEMENT.
2.1 ADDITIONAL DEFINITIONS. As of the Effective Date, Section 1.1 of
the Loan Agreement is hereby amended by the addition of the following
definition, in the appropriate alphabetical order:
"'Amendment No. 4' means Amendment No. 4 to Loan and Security
Agreement, dated as of June 1, 2006, by and among the Lenders, Agent
and Borrowers."
2.2 REVISIONS TO EXISTING DEFINITIONS. As of the Effective Date, the
definitions of "Certificates of Designation", "Participant", and "Preferred
Permitted Payments" set forth in Section 1.1 of the Loan Agreement are hereby
amended and restated in their entirety to read as follows:
"'Certificates of Designation' means, individually and
collectively, as appropriate: (a) the Certificate of Designation of the
Amended Series 2001-A Preferred Stock ($0.01 Par Value) of Harold's
Stores, Inc. as filed on August 2, 2002, with the Oklahoma Secretary of
State; (b) the Certificate of Designation of the Series 2002-A
Preferred Stock ($0.01 Par Value) of Harold's Stores, Inc. as filed on
August 2, 2002, with the Oklahoma Secretary of State; (c) the
Certificate of Designation of the Series 2003-A Preferred Stock ($.01
Par Value) of Harold's Stores, Inc., as filed on February 4, 2003, with
the Oklahoma Secretary of State; and (d) the Certificate of Designation
of the Series 2006-A Preferred Stock ($.01 Par Value) of Harold's
Stores, Inc., as filed on January 24, 2006, with the Oklahoma Secretary
of State."
"'Participant' means RONHOW, LLC, a Georgia limited liability
company, together with its successors and assigns."
"'Preferred Permitted Payments' means the payment of dividends
in respect of the Series 2002-A Preferred Stock of Parent, the Amended
Series 2001-A Preferred Stock, the Series 2003-A Preferred Stock, and
the Series 2006-A Preferred Stock to the extent each of the following
conditions precedent is met at the time such dividends are declared and
at the time such dividends are paid: (a) such dividends are made at the
times, in the amounts and otherwise in accordance with the applicable
Certificate of Designation as in effect on the Closing Date (or in the
case of the Series 2006-A Preferred Stock on January 24, 2006), or in
such lesser amount as may be required thereunder pursuant to any
amendment or modification of such certificates of designation; (b) no
Default or Event of Default shall have occurred and be continuing as of
either of such dates; and (c) no Default or Event of Default shall
result from the payment or declaration of such dividend."
2.3 RESTATEMENT OF SCHEDULE 5.8(B). As of the Effective Date, Schedule
5.8(b) to the Loan Agreement is hereby amended and restated in its entirety to
read as set forth hereto as Schedule 5.8(b) attached hereto and incorporated
herein.
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 2
3. RATIFICATIONS, REPRESENTATIONS AND WARRANTIES.
3.1 RATIFICATIONS. Except as expressly amended and supplemented by this
Amendment, the terms and provisions of the Loan Agreement are ratified and
confirmed and continue in full force and effect. The Borrowers hereby agree that
the Loan Agreement, as amended hereby, continues to be legal, valid, binding and
enforceable against Borrowers in accordance with its terms.
3.2 REPRESENTATIONS AND WARRANTIES. In order to induce Agent and Lender
to enter into this Amendment, each Borrower makes the following representations
and warranties to Lender as to itself:
(a) the execution, delivery and performance of this Amendment
and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate or
limited partnership power, as appropriate, on the part of the Borrower
and will not violate any of its constituent documents (including, as
applicable, its articles of incorporation, certificate of
incorporation, by-laws, partnership agreement and certificate of
limited partnership) or any other agreement to which Borrower is a
party or by which its properties may be bound;
(b) the representations and warranties contained in the Loan
Agreement, as amended hereby, and any other Loan Document are true and
correct in all material respects on and as of the date hereof as though
made on and as of the date hereof (except to the extent that such
representations and warranties relate solely to an earlier date or
violations have been disclosed to WFRF in writing and approved in
writing by WFRF); and
(c) no Default or Event of Default has occurred or is
continuing under the Loan Agreement, and no Default or Event of Default
will result from the execution, delivery or performance of this
Amendment or the consummation of the transactions herein authorized by
Lender.
4. FURTHER ASSURANCES.
The Borrowers hereby agree, upon Agent's request (i) to delivery to
Agent such fully authorized and executed agreements and instruments, including,
but not limited to, any amendments to Loan Documents, within 10 days of such
request, and (ii) to take such actions as Agent, in its Permitted Discretion,
deems necessary and appropriate in connection with the transactions contemplated
by this Amendment.
5. CHOICE OF LAW.
THE VALIDITY OF THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS (UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY THEREIN), THE CONSTRUCTION, INTERPRETATION,
AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED
HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 3
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS.
6. GENERAL PROVISIONS.
6.1 EFFECTIVENESS. The effectiveness of this Amendment and the
enforceability of the terms hereof against Borrowers, Agent and Lender are
subject to fulfillment of each of the following conditions precedent:
(a) Lender's execution of this Amendment and receipt of one or
more counterparts of this Amendment duly executed by each Borrower; and
(b) Lender's receipt of a consent and reaffirmation of the
obligations of each Guarantor under the Continuing Guaranty and
Security Agreement, in form acceptable to Lender; and
(c) Lender's receipt of copies of any and all documents and
instruments executed in connection with the issuance of the Series
2006-A Preferred Stock of Parent, including, but not limited to, (i)
the Certificate of Designation for the Series 2006-A Preferred Stock of
Parent and evidence of filing thereof with the Secretary of State of
the State of Oklahoma, (ii) a duly executed Series 2006-A Preferred
Stock Purchase Agreement, (iii) a duly executed Third Amendment to
Investor Rights Agreement, (iv) a duly executed Unanimous Written
Consent of the Holders of Amended Series 2001-A Preferred Stock and
Series 2002-A Preferred Stock and Series 2003-A Preferred Stock of
Parent authorizing the issuance of Series 2006-A Preferred Stock, and
(v) a duly executed Unanimous Written Consent of the Board of Directors
of Parent authorizing the issuance of Series 2006-A Preferred Stock.
6.2 SECTION HEADINGS. 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.
6.3 SEVERABILITY OF PROVISIONS. Each provision of this Amendment will
be severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any specific provision.
6.4 COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, will be deemed to be
an original, and all of which, when taken together, will constitute but one and
the same Amendment. Delivery of an executed counterpart of this Amendment by
telefacsimile will be equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile also will deliver an original executed
counterpart of this Amendment but the failure to deliver an original executed
counterpart will not affect the validity, enforceability, and binding effect of
this Amendment. The foregoing shall apply to each other Loan Document MUTATIS
MUTANDIS.
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 4
6.5 INTEGRATION. This Amendment, the Loan Agreement and the other Loan
Documents contain the entire agreement between the parties relating to the
transactions contemplated hereby. All prior or contemporaneous understandings,
representations, statements and agreements, whether written or oral, are merged
herein and superseded by this Agreement. THIS WRITTEN AMENDMENT, THE LOAN
AGREEMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
6.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made herein and in the Loan Agreement will survive the execution and
delivery of this Amendment, and no investigation by Lender or any closing shall
affect the representations and warranties or the right of Agent or Lender to
rely upon them.
6.7 REFERENCE TO LOAN AGREEMENT. The Loan Agreement, as amended hereby,
and all other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms thereof are hereby amended so that any reference
in the Loan Agreement or such other agreements, documents and instruments will
mean a reference to the Loan Agreement, as amended hereby.
6.8 EXPENSES OF LENDER. The Borrowers agree to pay on demand all
reasonable costs and expenses incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment, including, without
limitation, the reasonable costs and fees of Lender's legal counsel. In
addition, the Borrowers agree to pay on demand: (a) all costs and expenses
incurred by Lender in connection with the enforcement or preservation of any
rights under the Loan Agreement, as amended hereby, or any agreement, document
or instrument executed in connection therewith, including without limitation the
Participation Agreement; and (b) all reasonable costs and expenses incurred by
Lender in connection with the preparation, negotiation and administration of the
Participation Agreement, including the reasonable fees and costs of Lender's
legal counsel.
6.9 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and will
inure to the benefit of Agent, Lender and each Borrower and their respective
successors and assigns, except that no Borrower may assign or transfer any of
its rights or obligations hereunder without the prior written consent of Agent.
6.10 RELEASE. EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE OBLIGATIONS (AS DEFINED IN THE LOAN AGREEMENT) OR TO SEEK
AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT OR LENDER. EACH
BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT,
LENDER AND THEIR RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 5
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH SUCH BORROWER MAY NOW OR HEREAFTER
HAVE AGAINST AGENT, LENDER OR ANY OF THEIR RESPECTIVE PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY OBLIGATIONS (AS DEFINED IN THE LOAN AGREEMENT),
INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE MAXIMUM RATE, THE EXERCISE OF
ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR ANY AGREEMENT, DOCUMENT OR
INSTRUMENT ENTERED INTO IN CONNECTION THEREWITH.
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AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
BORROWERS:
HAROLD'S STORES, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Secretary
HAROLD'S FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary/Treasurer
HAROLD'S DIRECT, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary/Treasurer
HAROLD'S STORES OF TEXAS, L.P.
By: HSTX, Inc., General Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary/Treasurer
HAROLD'S OF XXXXXXX, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Secretary-Treasurer
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Signature Page 1
AGENT AND LENDER:
XXXXX FARGO RETAIL
FINANCE II, LLC,
AS AGENT AND LENDER
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, Vice President
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT - Signature Page 2
EXHIBIT 5.8(A)
CAPITALIZATION OF BORROWERS
(See attached.)
SCHEDULE 5.8
CAPITALIZATION OF BORROWERS
Authorized Stock Outstanding Stock
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Company Common Preferred Common Preferred
------- ------ --------- ------ ---------
Harold's Stores, Inc. 25,000,000 Series 2001-A 500,000 6,223,508 Series 2001-A 342,653
Series 2002-A 300,000 Series 2002-A 231,550
Series 2003-A 100,000 Series 2003-A 56,742
Series 2006-A 100,000 Series 2006-A 25,000(1)
Harold's Financial Corporation 20,000 180,000 20,000 180,000
Harold's Direct, Inc. 50,000 N/A 50,000 N/A
Harold's Limited Partners, Inc. 50,000 N/A 500 N/A
Harold's DBO, Inc. 50,000 N/A 1,000 N/A
HSTX, Inc. 50,000 N/A 1,000 N/A
Harold's of Xxxxxxx, Inc. 50,000 50,000 50,000 50,000
The Corner Properties, Inc. 50,000 N/A 50,000 N/A
Harold's of Texas, Inc. 25,000 N/A 10,000 N/A
a/k/a Southcoast Plaza, Inc.
Harold's of White Flint, Inc. 10,000 N/A 10,000 N/A
Harold's Stores of Texas, L.P.- owned by HSTX, Inc. (1%) and Harold's Limited
Partners, Inc. (99%)
(1) To be issued at closing of 2006-A transaction June 2006
