Exhibit 10.1
FIRST AMENDMENT TO LOAN,
GUARANTY AND SECURITY AGREEMENT
FIRST AMENDMENT TO LOAN, GUARANTY
AND SECURITY AGREEMENT (this “ Agreement ”),
dated as of March 18, 2009, among Design Within Reach, Inc.
(“ Borrower ”), the financial institutions party
hereto from time to time (together with their respective successors
and assigns, “ Lenders ”) and Wells Fargo Retail
Finance, LLC, as Agent for all Lenders. Terms not defined herein
have the meanings given to them in the Loan Agreement (as
hereinafter defined).
BACKGROUND
A. Borrower, Lenders and Agent are party to that
certain Loan, Guaranty and Security Agreement dated as of
February 2, 2007 (the “ Loan Agreement
”).
B. Borrower has requested that Agent and Lenders
consent to an amendment of the Loan Agreement on the terms set
forth herein.
C. Agent and Lenders are willing to enter into this
Agreement to consent to such transactions, upon the terms and
conditions set forth below.
NOW THEREFORE, in consideration of
the matters set forth in the recitals and the covenants and
provisions herein set forth, and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Amendments
.
(a) Section 1.1 of the Loan Agreement is hereby
amended by adding the following new definition thereto in
appropriate alphabetical order:
“ Securities Account
Availability Agreement ” means that certain Securities
Account Availability Agreement dated as of March 18, 2009 by
and among the Agent and the Borrower (as the same may be amended,
restated or otherwise modified from time to time).
(b) Section 1.1 of the Loan Agreement is hereby
amended by adding the phrase “the Securities Account
Availability Agreement,” between the phrases “Letter of
Credit,” and “Officers’ Certificate” where
the same appear in the definition of “ Loan Documents
” in such Section.
(c) Section 2.1(a) of the Loan Agreement is
hereby amended by adding the following language immediately at the
end thereof:
“Notwithstanding the
foregoing, so long as there is at least $2,000,000 in the USBNA
Accounts (as defined in the Securities Account Availability
Agreement) subject to the Agent’s perfected first priority
lien, Agent and Lenders hereby agree, subject to the other
conditions to borrowing hereunder being met, to make available up
to an additional $1,000,000 in Advances in the aggregate pursuant
to this Section 2.1(a) (provided that in no event shall
outstanding Advances exceed the Maximum Revolver Amount less
the Letter of Credit Usage less outstanding
Advances).”
3. Representations and
Warranties . To
induce Agent and Lenders to enter into this Agreement, Borrower
represents and warrants to Agent and the Lenders that the
execution, delivery and performance is within its corporate powers,
as applicable, has been duly authorized by all necessary corporate
action, and does not and will not contravene or conflict with any
provision of law applicable to Borrower, the Certificate of
Incorporation, or Bylaws, of Bo
