Sixth Amendment to Loan and Security Agreement

Exhibit 10.25

 

SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT

 

THIS SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is made and entered into this             day of September, 2004, by and among THE ROWE COMPANIES, a Nevada corporation (“Rowe Companies”), ROWE DIVERSIFIED, INC., a Delaware corporation(“Diversified”), ROWE FURNITURE WOOD PRODUCTS, INC., a California corporation (“Rowe Wood”), ROWE PROPERTIES, INC., a California corporation (“Rowe Properties”), STOREHOUSE, INC., a Georgiacorporation (“Storehouse”), and ROWE FURNITURE, INC., a Virginia corporation (“Rowe Furniture”; Rowe Companies, Diversified, Rowe Properties, Storehouse, Rowe Wood and Rowe Furniture are sometimes hereinafter referred tocollectively as “Borrowers” and individually as a “Borrower”), the various financial institutions (collectively, “Lenders”) named in the Loan Agreement (as defined below) and FLEET CAPITAL CORPORATION, a RhodeIsland corporation, in its capacity as collateral and administrative agent for itself and Lenders €together with its successors in such capacity, “Agent”).

 

Recitals:

 

Agent, Lenders and Borrowers are parties to a certain Loan and Security Agreement dated May 15, 2002, as amended by that certain letter amendment dated asof June 17, 2002, a certain Second Amendment to Loan and Security Agreement dated October 10, 2002, a Third Amendment to Loan and Security Agreement dated February 28, 2003, a Fourth Amendment to Loan and Security Agreement dated April 2, 2003, anda Fifth Amendment to Loan and Security Agreement dated November 30, 2003 (as so amended, the “Loan Agreement”), pursuant to which Agent and Lenders have made certain revolving credit and term loans and other financial accommodations toBorrowers.

 

The parties desire to amend the Loan Agreement ashereinafter set forth.

 

NOW, THEREFORE, for TEN DOLLARS($10.00) in hand paid and other good and valuable consideration, the receipt and sufficiency of which are hereby severally acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

 

1. Definitions. All capitalized terms used in this Amendment,unless otherwise defined herein, shall have the meaning ascribed to such terms in the Loan Agreement.

 

2. Amendment to Loan Agreement. The Loan Agreement is hereby amended as follows:

 

(a) By deleting the reference to “$35,000,000.00”on the cover page thereof and by substituting in lieu thereof a reference to “$40,000,000.00.”

 


(b) By deleting the introductory paragraph in Section 1 of the Loan Agreement and bysubstituting in lieu thereof the following:

 

Subject to the terms and conditions of, and in reliance upon the representations and the warranties made in, this Agreement and the other Loan Documents, Lenders severally agree to the extent and in the manner hereinafter set forth to maketheir respective Pro Rata shares of the Commitments available to Borrowers, in an aggregate amount up to $40,000,000, as follows:

 

(c) By deleting clause (xiii) of Section 9.1.2 of the Loan Agreement and by substituting in lieu thereof the following:

 

(xiii) of any proposed or pending sale of real Propertyleased by a Borrower;

 

(d) By deleting Section9.2.9 of the Loan Agreement in its entirety and by substituting the following new Section 9.2.9 in lieu thereof:

 

9.2.9. Capital Expenditure. Make Capital Expenditures (including expenditures by way of capitalized leases but excluding (i) theeffect of any SunTrust Leased Adjustment and (ii) amounts expended to repair or restore damaged or destroyed Equipment or Real Estate, to the extent of insurance or condemnation proceeds received for application (and actually applies for suchpurpose pursuant to Section 7.1.2(ii) hereof) which in the aggregate, as to all Borrowers and their Subsidiaries, exceed $4,000,000 during Borrowers’ 2002 Fiscal Year, $4,500,000 during Borrowers’ 2003 Fiscal Year, $9,000,000 duringBorrowers’ 2004 Fiscal Year or $7,000,000 during any Fiscal Year of Borrowers thereafter.

 

(e) By deleting Section 11.1.8 of the Loan Agreement and by substituting in lieu thereof the following:

 

11.1.8. Reserved.

 

(f) By deleting the definition of “RevolverCommitment” in Appendix A to the Loan Agreement and by inserting in lieu thereof the following:

 

Revolver Commitment – at any date for any Lender, the obligation of such lender to make Revolver Loans and to purchaseparticipations in LC Outstandings pursuant to the terms and conditions of the Agreement, which shall not exceed the principal amount set forth opposite such Lender’s name under the heading “Revolver Commitment” on the signature pagesof the Agreement or the signature page of the Assignment and Acceptance by which it became a Lender, as modified from time to time pursuant to the terms of the Agreement or to give effect to any applicable Assignment and Acceptance; and“Revolver Commitment”

 

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means the aggregate principal amount of the Revolver Commitments of all Lenders, the maximum amount of which shall be $35,000,000.

 

(g) By deleting the principal amounts set forth as the“Revolver Commitment” for each Lender opposite each such Lender’s name on the signature pages of the Loan Agreement and by inserting in lieu thereof the principal amounts set forth as the “Revolver Commitment” for eachLender opposite each such Lender’s name on the signature pages of this Amendment.

 

3. Accommodation Fee. To induce Agent and Lenders to enter into this Amendment, simultaneously with the execution and delivery of this Amendment, Borrowers shall pay to Agent, for the Pro Rata benefit ofLenders party to the Loan Agreement as of the date hereof, an accommodation fee in the amount of $12,500.

 

4. Additional Covenants. To induce Agent and Lenders to enter into this Amendment. Borrowers covenant and agree that, simultaneously withthe execution and delivery of this Amendment, Borrowers shall execute and deliver to Lenders a Second Amended and Restated Revolver Note in the form of Exhibits A and B attached hereto.

 

5. Ratification and Reaffirmation. Each Borrower herebyratifies and reaffirms the Obligations, each of the Loan Documents and all of such Borrower’s covenants, duties, indebtedness and liabilities under the Loan Documents.

 

6. Acknowledgements and Stipulations. Each Borrower acknowledges and stipulates that the Loan Agreement andthe other Loan Documents executed by such Borrower are legal, valid and binding obligations of such Borrower that are enforceable against such Borrower in accordance with the terms thereof; all of the Obligations are owing and payable withoutdefense, offset or counterclaim (and to the extent there exists any such defense, offset or counterclaim on the date hereof, the same is hereby waived by such Borrower); the security interests and liens granted by such Borrower in favor of Agent areduly perfected, first priority security interests and liens (except as otherwise explicitly provided in the Loan Agreement); and the unpaid principal amount of the Loans on and as of September 21, 2004 totaled $13,665,001.37.

 

7. Representations and Warranties. Each Borrower represents andwarrants to Agent and Lenders, to induce Agent and Lenders to enter into this Amendment, that no Default or Event of Default exists on the date hereof; the execution, delivery and performance of this Amendment have been duly authorized by allrequisite corporate action on the part of such Borrower and this Amendment has been duly executed and delivered by such Borrower: and all of the representations and warranties made by such Borrower in the Loan Agreement are true and correct on andas of the date hereof.

 

8. Reference to LoanAgreement. Upon the effectiveness of this Amendment, each reference in the the Loan Agreement to “this Agreement,” “hereunder,” or words of like import shall mean and be a reference to the Loan Agreement, as amended bythis Amendment.

 

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9. Breach of Amendment. This Amendment shall be part of the Loan Agreement and a breach ofany representation, warranty or covenant herein shall constitute an Event of Default.

 

10. Expenses of Agent and Lenders. Borrowers jointly and severally agree to pay, on demand, all costs and expenses incurred by Agent and Lenders in connection with the preparation, negotiation andexecution of this Amendment and any other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the costs and fees of Agent’s and Lenders’ legal counseland any taxes or expenses associated with or incurred in connection with any instrument or agreement referred to herein or contemplated hereby.

 

11. Effectiveness; Governing Law. This Amendment shall be effective upon acceptance by Agent and Lenders (notice of which acceptance eachBorrower hereby waives). Whereupon the same shall be governed by and construed in accordance with the internal laws of the State of Georgia.

 

12. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respectivesuccessors and assigns.

 

13. No Novation, etc.Except as otherwise expressly provided in this Amendment, nothing herein shall be deemed to amend or modify any provision of the Loan Agreement or any of the other Loan Documents, each of which shall remain in full force and effect. This Amendmentis not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Loan Agreement as herein modified shall continue in full force and effect.

 

14. Counterparts; Telecopied Signatures. This Amendment may be executed in any number of counterparts and bydifferent parties to this Amendment on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimiletransmission shall be deemed to be an original signature hereto.

 

15. Further Assurances. Each Borrower agrees to take such further actions as Agent or Lenders shall reasonably request from time to time in connection herewith to evidence or give effect to the amendments set forth herein orany of the transactions contemplated hereby.

 

16. SectionTitles. Section titles and references used in this Amendment shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties hereto.

 

17. Waiver of Jury trial. To the fullest extent permitted byApplicable Law, the parties hereto each hereby waives the right to trial by jury in any action, suit, counterclaim or proceeding arising out of or related to this Amendment.

 

[Signatures commence on following page]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under seal anddelivered by their respective duly authorized officers on the date first written above.

 

       

BORROWERS

ATTEST:

     

THE ROWE COMPANIES

(“Borrower”)

/s/ Garry W. Angle

      By:  

/s/ Gerald M. Birnbach

Garry W. Angle, Assistant Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board and President

 

ATTEST:

     

ROWE DIVERSIFIED, INC.

(“Borrower”)

/s/ Debbie Jacks

      By:  

/s/ Gerald M. Birnbach

Debbie Jacks, Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board and President

 

ATTEST:

     

ROWE FURNITURE WOOD PRODUCTS, INC.

(“Borrower”)

/s/ Garry W. Angle

      By:  

/s/ Gerald M. Birnbach

Garry W. Angle, Assistant Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board and President

 

ATTEST:

     

ROWE PROPERTIES, INC.

(“Borrower”)

/s/ Garry W. Angle

      By:  

/s/ Gerald M. Birnbach

Garry W. Angle, Assistant Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board and President

 

[Signatures continuedon following page]

 

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ATTEST:

     

STOREHOUSE, INC.

(“Borrower”)

/s/ Garry W. Angle

      By:  

/s/ Gerald M. Birnbach

Garry W. Angle, Assistant Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board

 

ATTEST:

     

ROWE FURNITURE, INC.

(“Borrower”)

/s/ Garry W. Angle

      By:  

/s/ Gerald M. Birnbach

Garry W. Angle, Assistant Secretary           Gerald M. Birnbach,

[CORPORATE SEAL]

         

Chairman of the Board

 

       

LENDERS:

       

FLEET CAPITAL CORPORATION

(“Lender”)

Revolver Commitment: $19,444,445.00

      By:    
            Title:    
       

THE CIT GROUP/COMMERCIAL SERVICES, INC.

(“Lender”)

Revolver Commitment: $15, 555,555.00

      By:    
            Title:    
       

AGENT:

       

FLEET CAPITAL CORPORATION, as Agent

(“Agent”)

        By:    
            Title:    

 

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