EXHIBIT 10 (s)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"), is
entered into as of November 24, 2004 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"), ▇▇▇▇▇ FARGO
RETAIL FINANCE, LLC, a Delaware limited liability company, as the arranger and
administrative agent for Lenders ("Agent"), and, on the other hand, THE BOMBAY
COMPANY, INC., a Delaware corporation ("Parent"), and each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with 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 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 COVER PAGE OF THE LOAN AGREEMENT. The cover page
of the Loan Agreement is hereby amended by deleting the cover page in its
entirety and substituting in lieu thereof the cover page attached as Exhibit A
hereto.
3.AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by
deleting the definition of "Bank Product Provider" therein in its
entirety and inserting the following therefor:
"'Bank Product Provider' means collectively, the Agent Bank
Product Provider and the Other Bank Product Providers."
(b) Section 1.1 of the Loan Agreement is hereby amended by
deleting the definition of "Bank Product Reserves" therein in its
entirety and inserting the following therefor:
"'Bank Product Reserves' means, as of any date of
determination, the amount of reserves that Agent has
established (based upon ▇▇▇▇▇ Fargo's
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or its Affiliate's reasonable determination of the credit
exposure in respect of then extant Bank Products extended by
Agent Bank Product Provider) for Bank Products extended by
Agent Bank Product Provider then provided or outstanding."
(c) Section 1.1 of the Loan Agreement is hereby amended by
deleting the section reference to "Section 2.2(h)" in the definition of
"Confirmation of Increase in Commitment" and substituting the following
section reference "Section 2.2.A.(h)" therefor.
(d) Section 1.1 of the Loan Agreement is hereby amended by
inserting the letter "s" after the term "U.S. Lender" in the definition
of "Lender Group" therein.
(e) Section 1.1 of the Loan Agreement is hereby amended by
deleting the word "and" immediately preceding clause (g) in the
definition of "Permitted Disposition" therein and substituting a
semicolon therefor and inserting the following new clause (h) therein,
"and (h) the ▇▇▇▇▇▇ Street Disposition."
(f) Section 1.1 of the Loan Agreement is hereby amended by
deleting the definition of the word "Wholesale" in its entirety and
substituting the following therefor:
"'Wholesale' means Bombay International, Inc., a Delaware
corporation."
(g) Section 1.1 of the Loan Agreement is hereby amended by
inserting the following new definitions in the proper alphabetical order:
"'Agent Bank Product Provider' means ▇▇▇▇▇ Fargo or any of
its Affiliates."
"'▇▇▇▇▇▇ Street' means ▇▇▇▇▇▇ Street Trading Company, a
Delaware corporation."
"'▇▇▇▇▇▇ Street Disposition' means the sale of all or
substantially all of the assets of ▇▇▇▇▇▇ Street either
pursuant to an asset sale agreement reasonably satisfactory
to the Agent or through a liquidation of assets through
ordinary course inventory sales conducted by ▇▇▇▇▇▇ Street."
"'Other Bank Product Providers' means any Lender, other than
▇▇▇▇▇ Fargo or any of its Affiliates."
4.AMENDMENT TO SECTION 2.1.A OF THE LOAN AGREEMENT. Section
2.1.A.(b)(iii) of the Loan Agreement is hereby amended by deleting clause (iii)
therein in its entirety and substituting the following therefor:
"(iii) Bank Products extended by Agent Bank Product Provider
then provided or outstanding (based upon ▇▇▇▇▇ Fargo's or its
Affiliates
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reasonable determination of the credit exposure in respect of
then extant Bank Products extended by Agent Bank Product
Provider),"
{section}5.AMENDMENT TO SECTION 2.1.B OF THE LOAN AGREEMENT.
(a) Section 2.1.B(a) of the Loan Agreement is hereby amended by
inserting the phrase, "less Canadian Revolver Usage" immediately after
the phrase, "Maximum Canadian Revolver Amount" in clause (x)(A) therein.
(b) Section 2.1.B.(b)(iii) of the Loan Agreement is hereby
amended by deleting clause (iii) therein in its entirety and substituting
the following therefor:
"(iii) Bank Products extended by Agent Bank Product Provider
then provided or outstanding (based upon ▇▇▇▇▇ Fargo's or its
Affiliates reasonable determination of the credit exposure in
respect of then extant Bank Products extended by Agent Bank
Product Provider),"
6.AMENDMENT TO SECTION 2.2 OF THE LOAN AGREEMENT.
(a) Section 2.2.A.(e)(i) of the Loan Agreement is hereby amended
by inserting the following phrase, "Subject to the limitation contained
in Section 2.2.A.(g)(i)-(iii)" at the beginning of the first sentence
thereof.
(b) Section 2.2.A.(h) of the Loan Agreement is hereby amended by
deleting clause (iv) therein in it entirety and renumbering each of the
subsequent clauses so as to maintain the correct numerical order.
{section}7.AMENDMENT TO SECTION 2.3 OF THE LOAN AGREEMENT.
(a) Section 2.3(b)(i)L. of the Loan Agreement is hereby amended
by inserting the phrase, "extended by Agent Bank Product Provider" after
the phrase, "Bank Products" in the last sentence in paragraph "L"
therein.
(b) Section 2.3(b)(i)N. of the Loan Agreement is hereby amended
by deleting clause (iv) therein in its entirety and substituting the
following therefor:
"(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."
(c) Section 2.3(b)(i)O and P of the Loan Agreement is hereby
amended by relettering paragraphs "O" and "P" as paragraphs "P" and "Q",
renumbering the first word of each such paragraph as "sixteenth" and
"seventeenth" and inserting the following new paragraph "O" therefor:
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"O. 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,".
8.AMENDMENT TO SECTION 6.3 OF THE LOAN AGREEMENT. Section
6.3(a)(iii) of the Loan Agreement is hereby amended by deleting the text
thereof in its entirety and inserting the following therefor:
"(iii)a Compliance Certificate demonstrating, in reasonable
detail, compliance at the end of such period with the
financial covenant contained in Section 7.21,"
9.AMENDMENT TO SECTION 8.1 OF THE LOAN AGREEMENT. Section 8.1
of the Loan Agreement is hereby amended by deleting the text thereof in its
entirety and inserting the following therefor:
"8.1 Any Borrower shall fail to pay when due (a) any installment
of principal whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment
of the Obligations, and (b) any accounts payable to the Issuing
Lender constituting reimbursement of Obligations. Any Borrower
shall fail to pay any interest (including any interest which, but
for the provisions of the Bankruptcy Code, would have accrued on
such amounts), fees and charges due the Lender Group, reimbursement
of Lender Group Expenses, or other amounts constituting Obligations
not set forth in clauses (a) or (b) of the preceding sentence
herein (i) so long as clause (b) of the definition of Cash Dominion
Event shall not have occurred, within 5 days after the date due,
and (ii) when the same shall be due and payable at any time that
clause (b) of the definition of Cash Dominion Event shall have
occurred."
10.AMENDMENT TO SECTION 16.20 OF THE LOAN AGREEMENT. Section
16.20(e) of the Loan Agreement is hereby amended by adding the following
proviso at the end of Section 16.20(e) "provided that no Lender shall be liable
for any such claims, actions, proceedings, damages, costs, expenses and other
amounts (including, attorney's fees and costs) resulting from the Agent's or
such other Lender's gross negligence or willful misconduct".
{section}11.AMENDMENT TO SCHEDULE C-1 OF THE LOAN AGREEMENT. Schedule C-1
of the Loan Agreement is hereby amended by deleting Schedule C-1 in its
entirety and substituting in lieu thereof Schedule C-1 attached as Exhibit B
hereto.
{section}12.AMENDMENT TO SCHEDULE 6.2 OF THE LOAN AGREEMENT. Schedule
6.2 of the Loan Agreement is hereby amended by deleting Schedule 6.2 in its
entirety and substituting in lieu thereof Schedule 6.2 attached as Exhibit C
hereto.
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13.CONDITIONS TO EFFECTIVENESS. This Amendment shall be deemed
to be effective upon the receipt by the Agent of a fully executed counterpart
hereof executed by each of the Borrowers and Lenders.
14.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 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.
(b) Ratification, Etc. Except as expressly amended hereby, the
Loan Agreement, 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, together with this 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 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 Amendment and the Loan
Agreement as amended 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.
(e) No Default. After giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing.
▇▇.▇▇ OTHER AMENDMENTS. Except as expressly provided in this
Amendment, all of the terms and conditions of the Loan Agreement and the other
Loan Documents remain in full force and effect. Nothing contained in this
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.
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16.EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts, each of which shall be deemed an original, but
which together shall constitute one instrument.
17.MISCELLANEOUS. THIS 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 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]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
BORROWERS:
THE BOMBAY COMPANY, INC.
By:___________________________________
Title:
BBA HOLDINGS, INC.
By:___________________________________
Title:
▇▇▇▇▇▇ STREET TRADING COMPANY
By:___________________________________
Title:
BOMBAY INTERNATIONAL, INC.
By:___________________________________
Title:
THE BOMBAY FURNITURE COMPANY OF CANADA INC.
By:___________________________________
Title
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
▇▇▇▇▇ FARGO RETAIL FINANCE, LLC, as Agent
and as a U.S. Lender,
By: ___________________________________
Title:
NATIONAL CITY BUSINESS CREDIT, INC., as
Syndication Agent and as a U.S. Lender
By: ___________________________________
Title:
CONGRESS FINANCIAL CORPORATION (SOUTHWEST),
as Documentation Agent and as a U.S. Lender
By: ___________________________________
Title:
SIEMENS FINANCIAL SERVICES, INC., as a U.S.
Lender
By: ___________________________________
Title:
TRANS CANADA CREDIT CORPORATION, as
Canadian Agent and as Canadian Lender
By:___________________________________
Title:
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
RATIFICATION OF GUARANTEE
Each of the undersigned Guarantors hereby acknowledges and consents to
the foregoing Amendment, and agrees that its Guarantee, as applicable, from
such Guarantor in favor of the Administrative 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:___________________________________
Title:
BBA HOLDINGS, INC.
By:___________________________________
Title:
▇▇▇▇▇▇ STREET TRADING COMPANY
By:___________________________________
Title:
BOMBAY INTERNATIONAL, INC.
By:___________________________________
Title:
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
EXHIBIT A
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
LOAN AND SECURITY AGREEMENT
BY AND AMONG
THE BOMBAY COMPANY, INC.
AND
EACH OF ITS SUBSIDIARIES THAT ARE SIGNATORIES HERETO
AS BORROWERS,
THE LENDERS THAT ARE SIGNATORIES HERETO
AS LENDERS,
AND
▇▇▇▇▇ FARGO RETAIL FINANCE, LLC
AS ARRANGER AND ADMINISTRATIVE AGENT
AND
NATIONAL CITY BUSINESS CREDIT, INC.
AS THE SYNDICATION AGENT
AND
CONGRESS FINANCIAL CORPORATION (SOUTHWEST)
AS THE DOCUMENTATION AGENT
DATED AS OF SEPTEMBER 29, 2004
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
EXHIBIT B
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
SCHEDULE C-1
COMMITMENTS
Lender Canadian U.S. Accordion Commitment Total Commitment
Commitment Commitment (Post-Accordion Activation)
▇▇▇▇▇ Fargo Retail Finance, LLC $0 $45,000,000* $26,000,000 $71,000,000
National City Business Credit, Inc. $0 $25,000,000 $10,000,000 $35,000,000
Congress Financial Corporation (Southwest) $0 $35,000,000 $14,000,000 $49,000,000
Siemens Financial Services, Inc. $0 $20,000,000 $0 $20,000,000
Trans Canada Credit Corporation $18,000,000* $0 $0 $18,000,000
All Lenders $18,000,000 $125,000,000 $50,000,000 $175,000,000*
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
EXHIBIT C
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
SCHEDULE 6.2
COLLATERAL REPORTING
Borrowers shall provide Agent (and if so requested by Agent, with copies
for each Lender) with the following documents at the following times in form
satisfactory to Agent:
(a) Weekly Reports.
(i) Borrowing Base Certificate. During the continuance of a Cash
Dominion Event, Administrative Borrower shall provide to Agent, on
Wednesday of each week, a signed Borrowing Base Certificate (in the form
of Exhibit B-1, as such form may be revised from time to time by Agent)
provided, however, that Administrative Borrower, may, in its discretion,
provide to Agent a Borrowing Base Certificate more frequently than as set
forth herein. Such Certificate may be sent to Agent electronically (with
an electronic signature) or by facsimile transmission, provided, further,
that in each case, upon request by Agent, the original thereof is
forwarded to Agent on the date of such transmission. No adjustments to
the Borrowing Base Certificate may be made without supporting
documentation and such other documentation as may be reasonably requested
by Agent from time to time.
(ii) During the continuance of a Cash Dominion Event, a collateral
activity summary or "roll forward" inventory report.
(b) Monthly Reports. Monthly, Administrative Borrower shall
provide to Agent original counterparts of (each in such form as Agent
from time to time may specify):
(i) Within 15 days of the end of each month for the immediately
preceding month or on the next business day, in the event the 15th day
does not fall on a business day:
A. at all times other than as set forth in clause (a)(i) above, a
Borrowing Base Certificate (in the form of Exhibit B-1, as
such form may be revised from time to time by Agent),
provided, however, that Administrative Borrower, may, in its
discretion, provide to Agent a Borrowing Base Certificate
more frequently than as set forth herein. Such Borrowing
Base Certificate may be sent to Agent electronically (with an
electronic signature) or by facsimile transmission, provided
that in each case, upon request by Agent, the original
thereof is forwarded to Agent on the date of such
transmission. No adjustments to the Borrowing Base
Certificate may be made without supporting documentation and
such other documentation as may be reasonably requested by
Agent from time to time;
B. sales audit report and Inventory summary by location and
merchandise class;
C. inventory certificate in Agent's format;
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement
D. a collateral activity summary or "roll forward" inventory
report.
(ii) Within 30 days of the end of each month for the immediately
preceding month or on the next business day, in the event the 30th day
does not fall on a business day:
A. reconciliation of the stock ledger to the general ledger; and
B. statement of store activity in Agent's format.
(iii) For purposes of items(c)(i) and (c)(ii) above, the first
"preceding month" in respect of which the items required by that Section
shall be provided shall be September 15, 2004.
In addition, each Borrower agrees to use its commercially reasonable
efforts to assist Agent with the facilitation and implementation of a system of
electronic collateral reporting in order to provide electronic reporting of
each of the items set forth above.
Signature Page to First Amendment to Third Amended and Restated Loan and
Security Agreement