EXHIBIT 10.21
SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND SECOND AMENDMENT TO SECURED CAPEX NOTE
This SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND SECOND AMENDMENT
TO SECURED CAPEX NOTE (this "Amendment") is dated as of January 18, 2000, and
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entered into by and between THE RIGHT START, INC., a California corporation
("Borrower"), and XXXXXX FINANCIAL, INC. ("Lender").
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RECITALS
WHEREAS, Borrower and Lender have entered into that certain Loan and
Security Agreement dated as of November 14, 1996, as amended by that certain
First Amendment to Loan and Security Agreement and Limited Waiver and Consent
dated as of April 30, 1997, as further amended by that certain Second Amendment
to Loan and Security Agreement and Limited Waiver dated July 10, 1997, as
further amended by that certain Third Amendment to Loan and Security Agreement,
Limited Waiver and Consent dated September 3, 1997, as further amended by that
certain Fourth Amendment to Loan and Security Agreement and Limited Consent
effective as of January 30, 1998, as further amended by that certain Waiver and
Fifth Amendment to Loan and Security Agreement dated as of December 9, 1998, as
further amended by that certain Sixth Amendment to the Loan and Security
Agreement and First Amendment to Secured CAPEX Note dated as of November 8, 1999
(as so amended, the "Loan Agreement");
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WHEREAS, in connection with the Loan Agreement, Borrower made that certain
Secured CAPEX Note dated November 14, 1996, in favor of Lender in the principal
amount of $3,000,000, as amended by that certain Sixth Amendment to the Loan and
Security Agreement and First Amendment to Secured CAPEX Note dated as of
November 8, 1999 (as so amended, the "CAPEX Note");
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WHEREAS, Borrower has requested certain amendments to the Loan Documents
(as defined in the Loan Agreement), including that the term of each of the Loan
Agreement and the CAPEX Note be extended;
WHEREAS, Lender is willing to grant such extension and other amendments,
all upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of these premises, the agreements,
provisions and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
1. Defined Terms. Capitalized terms used but not otherwise
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defined herein shall have the meanings given in the Loan Agreement.
2. Amendment to Subsection 1.1 of the Loan Agreement. The
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following defined terms are added alphabetically to subsection 1.1 of the Loan
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Agreement:
"Seventh Amendment Effective Date" means January 18, 2000."
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"Subscription Agreement" means that certain Subscription
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Agreement dated as of January 18, 2000, regarding the issuance to
Lender of 5,130 shares of the common stock of Borrower."
"Warrant" means the warrant to purchase 5,000 shares of the
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common stock of Borrower issued or to be issued to Xxxxxx Financial,
Inc."
3. Amendment to Subsection 2.1(C) of the Loan Agreement. Subsection
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2.1(C) is hereby deleted in its entirety and the following substituted therefor:
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"(C) CAPEX Line. Subject to the terms and conditions of this
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Agreement and in reliance upon the representations and warranties of
Borrower and the other Loan Parties set forth herein and in the other
Loan Documents, Lender agrees to lend to Borrower each CAPEX Advance
from time to time requested by Borrower to be applied to Permitted
CAPEX Expenditures, the aggregate amount of which shall not exceed
$3,000,000; provided that on the Seventh Amendment Effective Date,
Borrower hereby requests, and Lender agrees to lend to Borrower,
CAPEX Advances in the amount of $1,250,000 such that the outstanding
principal balance of the CAPEX Loan as of such Seventh Amendment
Effective Date, after giving effect to such CAPEX Advances, shall be
$3,000,000. Amounts borrowed under this subsection 2.1(C) and prepaid
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on or after the Seventh Amendment Effective Date (after giving effect
to the CAPEX Advances described in the proviso in the preceding
sentence) may not be reborrowed. Interest on the outstanding
principal balance of the CAPEX Advances shall be due and payable on
each Interest Payment Date. The outstanding principal balance of all
CAPEX Advances, together with interest accrued and
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unpaid on such amount, shall be due and payable on the Termination
Date."
4. Amendment to Subsection 2.5 of the Loan Agreement. The first
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sentence of Subsection 2.5 of the Loan Agreement is deleted in its entirety and
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the following substituted therefor:
"This Agreement shall be effective until February 18, 2001 (the
"Termination Date")."
5. Amendment to Subsection 6.3 of the Loan Agreement. Subsection
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6.3 of the Loan Agreement is hereby deleted in its entirety and the following
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substituted therefor:
"6.3 Minimum EBITDA. Borrower shall have a minimum EBITDA for
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the periods set forth below in the amounts set forth below:
Period Amount
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Three months ended April 30, 1998 ($1,200,000)
Six months ended July 31, 1998 ($1,200,000)
Nine months ended October 31, 1998 ($ 900,000)
Twelve months ended January 31, 1999 ($ 900,000)
Twelve months ended April 30, 1999 ($ 500,000)
Twelve months ended July 31, 1999 $ 0
Twelve months ended October 31, 1999 $ 400,000
Twelve months ended January 31, 2000 $ 500,000
Twelve months ended April 30, 2000 $ 500,000
Twelve months ended July 31, 2000 $ 500,000
Twelve months ended October 31, 2000 $ 500,000
Twelve months ended January 31, 2001 $ 500,000"
6. Amendment to Subsection 6.4 of the Loan Agreement. Subsection
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6.4 of the Loan Agreement is hereby deleted in its entirety and the following
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substituted therefor:
6.4 Capital Expenditure Limits. The aggregate amount of all
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Capital Expenditures of Borrower and its Subsidiaries (excluding
trade-ins and excluding Capital Expenditures in respect of
replacement assets to the extent funded with casualty insurance
proceeds) will not exceed the amount set forth below for each period
set forth below. In the event that Borrower or any of its
Subsidiaries enters into a Capital Lease or other contract with
respect to fixed assets, for purposes of calculating Capital
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Expenditures under this subsection only, the amount of the Capital
Lease or contract initially capitalized on Borrower's or any
Subsidiary's balance sheet prepared in accordance with GAAP shall be
considered expended in full on the date that Borrower or any of its
Subsidiaries enters into such Capital Lease or contract.
Fiscal Year Ending Amount
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January 30, 2000 $1,750,000
January 29, 2001 $1,750,000
Permitted Capital Expenditures not made in Fiscal Year 1999 may be
carried over for one year only to the next Fiscal Year; provided,
however, any carried-over Capital Expenditure will be deemed used
only after all otherwise Permitted Capital Expenditures for that
Fiscal Year have been used.
Notwithstanding anything herein to the contrary, on and after the
Seventh Amendment Effective Date, each Capital Expenditure made with
the proceeds of (i) a third-party financing (other than under this
Agreement) on terms not less favorable to Borrower or any of its
Subsidiaries, as applicable, than then-existing market terms, (ii) an
equity offering of Borrower's securities in which any of the proceeds
thereof are used for Capital Expenditures (in each of case (i) and
(ii) to the extent of such proceeds so applied) or (iii) the gain
realized on a sale of assets of Borrower (including securities held
by Borrower) or any of its Subsidiaries, in each case to the extent
the foregoing financing, equity offering or sale is permitted under
this Agreement, shall not be subject to, or considered in the
calculations of, the limitations of this subsection 6.4.
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7. Amendment to Secured CAPEX Note. The reference to "February 18,
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2000" in the first paragraph of the CAPEX Note is hereby deleted and "February
18, 2001" substituted therefor.
8. Representations and Warranties. Borrower represents and warrants
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to Lender as follows:
a. Borrower has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, as well as in each jurisdiction in which Borrower is
required to be qualified to transact business.
b. Borrower has full power and authority and legal right to
execute and deliver this Amendment and to perform its obligations under the
Loan Agreement
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and the CAPEX Note, each as amended hereby, and has taken all necessary
action to authorize such execution, delivery and performance.
c. This Amendment has been duly executed and delivered by
Borrower and such Amendment, and each of the Loan Agreement and the CAPEX
Note as amended hereby, each constitutes the legally valid and binding
obligations of Borrower, enforceable against Borrower in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and subject to the availability of
equitable remedies.
9. Conditions to the Effectiveness of this Amendment. Each of the
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following shall be conditions precedent to the effectiveness of this Amendment
(the date on which such conditions are met being the "Effective Date"):
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a. Borrower shall have duly executed and delivered a
counterpart of this Amendment to Lender or its counsel.
b. Before and after giving effect to this Amendment, (a) no
Default or Event of Default has occurred and is continuing, (b) all of the
representations and warranties contained in the Loan Documents shall be
true and correct in all material respects (except for any representation or
warranty limited by its terms to a specific date), (c) Borrower shall have
performed in all material respects all agreements and satisfied all
conditions which any Loan Document provides shall be performed by it on or
prior to such date, and (d) Borrower shall have delivered to Lender a
certificate to such effect in the form attached hereto as Exhibit A.
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c. Borrower shall have delivered to Lender or its counsel a
certificate of its Secretary or an Assistant Secretary, certifying as to
(i) the resolutions of its Board of Directors authorizing (A) this
Amendment and (B) the Subscription Agreement, the Warrant and the issuance
of stock under each of the Subscription Agreement and the Warrant, (ii) the
incumbency of the officers executing this Amendment and any other documents
in connection herewith, (iii) the articles of incorporation of Borrower and
(iv) the bylaws of Borrower, each as in effect on the Effective Date,
together with a good standing certificate from the Secretary of State of
the State of California with respect to the Borrower.
d. Lender or its counsel shall have received (i) a duly
executed and delivered Subscription Agreement, in form and substance
satisfactory to Lender, and (ii) as a closing fee, a stock certificate
issued to "Xxxxxx Financial, Inc." for 5,130 shares of common stock of
Borrower.
e. Borrower shall have duly executed and delivered the
Warrant to Lender or its counsel, in form and substance satisfactory to
Lender.
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f. Lender or its counsel shall have received an opinion of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special counsel to Borrower, in form
and substance satisfactory to Lender.
10. Effect of Amendment; Ratification. From and after the Effective
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Date, all references in the Loan Documents to the Loan Agreement shall mean the
Loan Agreement as amended hereby, and all references in the Loan Documents to
the CAPEX Note or the Secured CAPEX Note shall mean the CAPEX Note as amended
hereby. The terms and provisions set forth in this Amendment shall amend and
supersede all inconsistent terms and provisions set forth in the Agreement or
the CAPEX Note and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement and the CAPEX Note are
hereby ratified and confirmed and are and shall continue in full force and
effect.
11. No Waiver. Nothing contained herein or in any other instrument
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or document executed in connection herewith, nor any action taken by Lender in
connection with this Amendment or any other action contemplated hereby shall in
any event be construed or deemed to constitute a waiver of any past, present or
future Default or Event of Default or a waiver or an estoppel of any cause of
action Lender may have against Borrower for any reason whatsoever, and Lender
hereby reserves all rights and remedies under the Agreement or the other Loan
Documents.
12. Fees and Expenses. Borrower acknowledges that all fees and
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expenses (including reasonable attorneys fees) incurred by Lender in connection
with this Amendment are for the account of Borrower pursuant to the Loan
Agreement.
13. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. Delivery via facsimile of an executed counterpart of a
signature page of this Amendment shall be effective as delivery of a manually-
executed counterpart of this Amendment.
14. Severability. The illegality or unenforceability of any
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provision of this Amendment, the Loan Agreement (including as amended hereby),
the CAPEX Note (including as amended hereby) or any other document or any other
instrument or agreement required hereunder or thereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Amendment, the Loan Agreement (including as amended hereby), the CAPEX Note
(including as amended hereby) or such other document or any other instrument or
agreement required hereunder or thereunder.
15. Successors and Assigns. This Amendment shall be binding upon and
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shall inure to the benefit of Lender and Borrower and their respective
successors and assigns.
16. Governing Law. This Amendment shall be governed by, and shall be
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construed and enforced in accordance with, the internal laws of the State of
Illinois, without regard to conflicts of laws principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by a duly authorized officer as of the date first above
written.
THE RIGHT START, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Its: Chief Financial Officer
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XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Its: Assistant Vice President
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Exhibit A
BORROWER'S CLOSING CERTIFICATE
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This certificate is delivered pursuant to that certain Seventh
Amendment to Loan and Security Agreement and Second Amendment to Secured CAPEX
Note dated as of January 18, 2000 (the "Amendment") between The Right Start,
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Inc., a California corporation ("Borrower"), and Xxxxxx Financial, Inc.
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("Lender"). Except as provided herein, all capitalized terms used herein which
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are defined in the Loan Agreement shall have the meanings given therein. The
undersigned hereby certifies to Lender that he or she, as applicable, is the
duly elected, qualified and acting Chief Executive Officer or Chief Financial
Officer of Borrower, as applicable, and on behalf of Borrower (and not
individually), further certifies to Lender that:
1. Each representation and warranty made in Section 4 of the Loan
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Agreement and in the other Loan Documents is true, correct and complete in all
material respects as of the Effective Date (as defined in the Amendment) to the
same extent as though made on and as of that date, except for any representation
and warranty limited by its terms to a specific date.
2. No event has occurred and is continuing or would result from the
consummation of the transactions contemplated under the Amendment on the
Effective Date which event would constitute a Default or Event of Default.
3. Borrower has performed in all material respects all agreements and
satisfied all conditions which any Loan Document provides shall be performed by
it on or before the Effective Date.
4. No order, judgment or decree of any court, arbitrator or
governmental authority purports to enjoin or restrain Lender from making any
Loans or issuing any Lender Letters of Credit to Borrower, or to extend the
maturity date of any Loans or Letters of Credit outstanding on the date hereof.
5. There is not pending, or to my knowledge threatened, any action,
charge, claim, demand, suit, proceeding, petition, governmental investigation or
arbitration against or affecting Borrower or any of its property that has not
been disclosed by Borrower in writing, and there has occurred no development in
any such action, charge, claim, demand, suit, proceeding, petition, governmental
investigation or arbitration so disclosed that could reasonably be expected to
have a Material Adverse Effect.
6. No event or condition has occurred since the fiscal quarter ending
on October 31, 1999, which constitutes or could reasonably be expected to
constitute a Material Adverse Effect or which has not been previously and fully
disclosed to Lender in writing.
7. On the date hereof after giving effect to the transactions
contemplated by the Amendment on the date hereof and the payment by Borrower of
all costs, fees and expenses related thereto, Borrower (a) owns assets the fair
salable value of which are (i) greater than the total amount of its liabilities
(including contingent liabilities) and (ii) greater than the amount that will be
required to pay the probable liabilities of Borrower as they mature; (b) has
capital that is not unreasonably small in relation to its business as presently
conducted or any contemplated or undertaken transaction; and (c) does not intend
to incur and does not believe that it will incur debts beyond its ability to pay
such debts as they become due.
8. The conditions precedent set forth in Section 9 of the Amendment
have been satisfied.
IN WITNESS WHEREOF, the undersigned has duly executed this Borrower's
Closing Certificate on behalf of Borrower this 18th day of January, 2000.
THE RIGHT START, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Financial Officer
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