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EXHIBIT 10.58
AMENDMENT NO. THREE TO THE LOAN
AND SECURITY AGREEMENT
XXXXXXXXX INDUSTRIES, INC., XXXXXXXXX INDUSTRIES, L.P. AND
NBF, INC.
This Amendment No. Three To The Loan And Security Agreement (the
"Amendment") is entered into as of the 11th day of June, 1997, by and between
XXXXXXXXX INDUSTRIES, INC., a Delaware corporation ("Inc."), XXXXXXXXX
INDUSTRIES, L.P., a Texas limited partnership ("L.P.") and NBF, INC., a Georgia
corporation ("NBF"), jointly and severally, (collectively "Borrower"), with
their chief executive office located at 000 Xxxxxxxx Xxxxxxx, Xxxxx Xxxxxxx,
Xxxxx 00000 and FOOTHILL CAPITAL CORPORATION, a California corporation
("Foothill"), with a place of business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, in light of the following facts:
FACTS
FACT ONE: Foothill and Borrower have previously entered into
that certain Loan And Security Agreement, dated August 16, 1996 (as amended and
supplemented, the "Agreement").
FACT TWO: Foothill and Borrower desire to further amend the
Agreement as provided herein. Terms defined in the Agreement which are used
herein shall have the same meanings as set forth in the Agreement, unless
otherwise specified.
NOW, THEREFORE, Foothill and Borrower hereby modify and amend the
Agreement as follows:
1. The definition of Eligible Accounts under Subsection 1.1(g)
of the Agreement is hereby amended in its entirety to read as follows:
"(g) Accounts with respect to an Account Debtor whose total
obligations owing to Borrower exceed ten percent (10%) of all Eligible Accounts
(or, in the case of Service Merchandise and Xxxxxx-Xxxxxx, fifteen percent
(15%)), to the extent of the obligations owing by such Account Debtor in excess
of such percentage; provided, however, in the case of Wal-Mart or K-Mart, such
percentage shall be (75%) as to both combined, effective June 1, 1997."
2. Subsection 2.1(d) of the Agreement is hereby amended in its
entirety to read as follows:
"(d) Foothill is authorized to make Revolving Advances under this
Agreement based upon telephonic or other instructions received from anyone
purporting to be an Authorized Officer of Borrower, or without instructions if
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pursuant to Section 2.4(d). Borrower agrees to establish and maintain a
single designated deposit account for the purpose of receiving the proceeds
of the Revolving Advances requested by Borrower and made by Foothill
hereunder. Unless otherwise agreed by Foothill and Borrower, any
Revolving Advances requested by Borrower and made by Foothill hereunder
shall be made to such designated deposit account. Amounts borrowed
pursuant to this Section 2.1 may be repaid and, subject to the terms and
conditions of this Agreement, reborrowed at any time during the term of
this Agreement.
3. Notwithstanding anything to the contrary contained in Section 2.3
of the Agreement, Foothill agrees to provide Borrower a temporary Overadvance
facility in the amount of One Million Dollars ($1,000,000) commencing as of
June 1, 1997 through September 15, 1997. Said Overadvance facility shall be
reduced in equal monthly installments of Two Hundred Fifty Thousand Dollars
($250,000) beginning June 15, 1997 and continuing through September 15,
1997, and shall be back in formula.
4. Subsection 2.7(h) of the Agreement is hereby amended in its
entirety to read as follows:
"(h) Overadvance Fee. Borrower's account shall be charged
Overadvance fees in amounts equal to: (i) $10,000.00 on the One Million
Dollar ($1,000,000) Overadvance due on June 1, 1997; (ii) $13,125.00 on
the Seven Hundred Fifty Thousand Dollar ($750,000) Overadvance due June
15, 1997; (iii) $7,500.00 on the Five Hundred Thousand Dollar ($500,000)
Overadvance due July 15, 1997; and (iv) $3,125.00 on the Two Hundred
and Fifty Thousand Dollar ($250,000) Overadvance due August 15, 1997.
Overadvance fees shall be fully earned, non-refundable, and due and
payable on the date as specified in this Subsection 2.7(h)."
5. Subsection 6.13(b) of the Agreement is hereby amended in its
entirety to read as follows:
"(b) Total Liabilities to Tangible Net Worth Ratio. A ratio
of Borrower's total liabilities divided by Tangible Net Worth measured on a
fiscal quarter-end basis of not more than:
Date of Fiscal quarter-End Ratio
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90/30/96 4.75:1.0
12/31/96 4.50:1.0
03/31/97 4.00:1.0
06/30/97 13.50:1.0
09/30/97 15.00:1.0
12/31/97 10.50:1.0
03/31/98 10.50:1.0
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06/30/98 9.50:1.0
09/30/98 9.50:1.0
12/31/98 and thereafter 9.00:1.0"
6. "Foothill hereby waives the existing violations of the covenants
contained in Sections 6.13(b) and 6.13(c) for the third and fourth fiscal
quarters of 1997. This waiver is limited to its particular circumstances
and shall not constitute a waiver of any other provision of the Loan
Agreement or a future waiver of Section 67.13(b) and Section 6.13(c)
or any other provision of the Loan Agreement."
7. Foothill shall charge Borrower's loan account a documentation
fee in the amount of Two Hundred Fifty Dollars ($250.00). Said fee shall
be fully-earned, non-refundable, and due and payable on the date Borrower's
loan account is charged.
8. In the event of a conflict between the terms and provisions of
this Amendment and the terms and provisions of the Agreement, the terms and
provisions of this Amendment shall govern. In all other respects, the
Agreement, as supplemented, amended and modified, shall remain in full
force and effect.
IN WITNESS WHEREOF, Borrower and Foothill have executed this
Amendment as of the day and year first written above.
FOOTHILL CAPITAL CORPORATION XXXXXXXXX INDUSTRIES, L.P.
By: Xxxxxxxxx Operating Corp., its
General Partner
By /s/ XXXX X. XXXXXXXX By /s/ XXXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx
Its Assistant Vice President Its CEO
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XXXXXXXXX INDUSTRIES, INC.
By /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Its CMEO/CEO
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NBF, INC.
By /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Its V.P.
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REAFFIRMATION OF GUARANTORS
By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
XXXXXXXXX OPERATING CORP.,
a Nevada corporation
By /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Its
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By its acceptance below this ___ day of June, 1997, the undersigned guarantor
hereby reaffirms its Continuing Guaranty dated August 16, 1996 and consents to
the above-stated terms.
XXXXXXXXX HOLDING CORP.,
a Delaware corporation
By /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Its
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By its acceptance below this ___ day of June, 1997, the undersigned guarantor
hereby reaffirms its Continuing Guaranty dated August 16, 1996 and consents to
the above-stated terms.
XXXXXXXXX SPORT, INC.,
a Texas corporation
By /s/ XXXXX X. XXXXXXXXX
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Its
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By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
C.G. PRODUCTS, INC.,
a California corporation
By /s/ XXXXX X. XXXXXXXXX
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Its Vice President
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By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
XXXXXX, INC.,
a Texas corporation
By /s/ XXXXX X. XXXXXXXXX
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Its President
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By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
/s/ XXXXX X. XXXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxxx,
an individual
By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
/s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
an individual
By its acceptance below this ___ day of June, 1997, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated August 16, 1996 and
consents to the above-stated terms.
/s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx,
an individual