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EXHIBIT 10.10
AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT
This Amendment Number One to Loan and Security Agreement ("Amendment")
is entered into as of June 5, 1998, by and between FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), and Celebrity, Inc., a
Texas corporation, and certain of its subsidiaries (collectively, the
"Borrowers"), in light of the following:
FACT ONE: Borrowers and Foothill have previously entered into that
certain Loan and Security Agreement, dated as of January 30, 1998 (the
"Agreement").
FACT TWO: Borrowers and Foothill desire to amend the Agreement as
provided for and on the conditions herein.
NOW, THEREFORE, Borrowers and Foothill hereby amend and supplement the
Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
2.1 Paragraph (h) of the definition of "Eligible Accounts"
contained in Section 1.1 of the Agreement is hereby amended by raising the
maximum permitted concentration ratio for Michaels Stores, Inc. to 45% from its
present 35%.
2.2 Clause (b) of the definition of "Excess Availability" is hereby
amended in its entirety to read as follows:
(b) the aggregate amount of the outstanding Obligations (including
Letters of Credit).
2.3 The following new definition is hereby added to Section 1.1 of
the Agreement:
"Xxxxxxxxx Senior Loan" means the senior unsecured Indebtedness of
Borrowers owing to Xxxxxx Xxxxxxxxx, not to exceed $500,000 at any one
time, which amount shall be due and payable on or before December 31,
2000.
2.4 Section 2.3 of the Agreement is hereby amended in its entirety
to read as follows:
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2.3 TERM LOAN. Foothill has agreed to make a term loan (the "Term
Loan") to Borrowers in the original principal amount of $3,500,000. The
Term Loan shall be repaid in monthly installments of principal commencing
May 1, 1998 and continuing on the first day of each succeeding month until
and including the date on which the unpaid balance of the Term Loan is paid
in full. The first 17 installments shall be in the amount of $200,000 each,
and the final installment shall be in the amount of $100,000. The
outstanding principal balance and all accrued and unpaid interest under the
Term Loan shall be due and payable upon the earlier of (a) October 1, 1999
or (b) the termination of this Agreement, whether by its terms, by
prepayment, by acceleration, or otherwise. The unpaid principal balance of
the Term Loan may be prepaid in whole or in part without penalty or premium
at any time during the term of this Agreement upon 30 days prior written
notice by Borrowers to Foothill, all such prepaid amounts to be applied to
the installments due on the Term Loan in the inverse order of their
maturity. All amounts outstanding under the Term Loan shall constitute
Obligations.
2.5 Section 3.3(e) of the Agreement is hereby amended in its entirety
to read as follows:
(e) by April 15, 1999 Foothill shall have received from Celebrity a
business plan (with projections) for Borrowers reflecting periods through
June 30, 2000, and by April 15, 2000 Foothill shall have received from
Celebrity a business plan (with projections) for Borrowers reflecting
periods through June 30, 2001, in each case acceptable to Foothill in its
sole discretion.
2.6 Section 7.1(e) is hereby deleted and replaced with the following:
(e) the Xxxxxxxxx Senior Loan; and
(f) refinancings, renewals, or extensions of Indebtedness permitted
under clauses (b), (c) or (d) of this Section 7.1 (and continuance or
renewal of any Permitted Liens associated therewith) so long as: (i) the
terms and conditions of such refinancings, renewals, or extensions do not
materially impair the prospects of repayment of the Obligations by
Borrowers, (ii) the net cash proceeds of such refinancings, renewals, or
extensions do not result in an increase in the aggregate principal amount
of the Indebtedness so refinanced, renewed, or extended, except for the
refinancing of the Senior Real Estate Loan, which refinancing may be for an
amount up to the appraised fair market value of the real property securing
such Indebtedness, (iii) such refinancings, renewals, refundings, or
extensions do not result in a shortening of the average weighted maturity
of the Indebtedness so
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refinanced, renewed, or extended, and (iv) to the extent that Indebtedness
that is refinanced was subordinated in right of payment to the Obligations,
then the subordination terms and conditions of the refinancing Indebtedness
must be at least as favorable to Foothill as those applicable to the
refinanced Indebtedness.
2.7 the reference to Section 7.1(e) contained in Section 7.2 of the
Agreement is hereby amended to refer to Section 7.1(f).
2.8 Section 7.8(a) of the Agreement is hereby amended in its
entirety to read as follows:
(a) Prepay, redeem, retire, defease, purchase, or otherwise acquire
any Indebtedness owing to any Person, except (i) payments of the
Obligations in accordance with this Agreement, (ii) in connection with a
refinancing permitted by Section 7.1(f); (iii) prepayments of the Senior
Real Estate Loan from a Permitted Sale/Leaseback; (iv) in connection with
Permitted Equipment Dispositions; and, (v) upon prior notice to Foothill
specifying such contemplated payment, and so long as no Event of Default
has occurred and is continuing (or would arise from the making of such
payment), repayments of the Xxxxxxxxx Senior Loan from Borrowers' borrowing
availability hereunder, and the repayment of the $500,000 Indebtedness
owing to RHP Management, LLC, in monthly installments not to exceed
$125,000 each, pursuant to the terms of the Subordination Agreement, and
2.9 Section 7.20(c) of the Agreement is hereby amended in its
entirety to read as follows:
(c) Tangible Net Worth. Tangible Net Worth of at least the following
amounts as of the following dates:
Date Minimum Tangible Net Worth
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June 30, 1998 $ 5,000,000
September 30, 1998 $ 5,000,000
December 31, 1998 $ 5,000,000
March 31, 1999 $ 5,000,000
June 30, 1999 $ 5,000,000
Borrowers acknowledge that Foothill will establish appropriate levels for
this financial covenant for quarterly periods beyond June 30, 1999 upon
receipt and approval of the Borrowers' business plan required under Section
3.3(e). Such extensions of this financial covenant will be determined by
Foothill in
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its reasonable credit judgment (based on no more than 85% of projected
performance) and this Section 7.20 will be amended accordingly upon
Foothill's notification to Celebrity of such levels without any
requirement of Borrowers' further consent thereto.
2.10 Section 7.20(d) of the Agreement is hereby amended in its
entirety to read as follows:
(d) EBITDA. EBITDA of at least the following amounts as of the
following dates:
Date Minimum EBITDA
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June 30, 1998 ($ 3,500,000)
September 30, 1998 $ 1,500,000
December 31, 1998 $ 1,100,000
March 31, 1999 $ 500,000
June 30, 1999 $ 1,300,000
Borrowers acknowledge that Foothill will establish appropriate levels
for this financial covenant for quarterly periods beyond June 30, 1999
upon receipt and approval of the Borrowers' business plan required
under Section 3.3(e). Such extensions of this financial covenant will
be determined by Foothill in its reasonable credit judgment (based on
no more than 85% of projected performance) and this Section 7.20 will
be amended accordingly upon Foothill's notification to Celebrity of
such levels without any requirement of Borrowers' further consent
thereto.
3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby affirms to
Foothill that all of such Borrower's representations and warranties set forth
in the Agreement are true, complete and accurate in all respects as of the date
hereof.
4. NO DEFAULTS. Each Borrower hereby affirms to Foothill that no
Event of Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the receipt by Foothill of an executed copy of this
Amendment.
6. COSTS AND EXPENSES. Borrowers shall pay to Foothill all of
Foothill's out-of-pocket costs and expenses (including, without limitation, the
fees and expenses of its counsel, which counsel may include any local counsel
deemed necessary, search fees, filing and recording fees, documentation fees,
appraisal fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
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7. LIMITED EFFECT. 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 amended and supplemented hereby, shall remain in full force and
effect.
8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original.
All such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXX
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Title: Vice President
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CELEBRITY, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX, XX.
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Title: Chairman
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THE XXXXXX CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXXXXX, XX.
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Title: Chairman
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STAR WHOLESALE FLORIST, INC.,
a Texas corporation
By /s/ XXXXXX X. XXXXXXXXX XX.
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Title: President
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INDIA EXOTICS, INC.,
a Texas corporation
By /s/ XXXXXX X. XXXXXXXXX XX.
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Title: Chairman
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VALUE FLORIST SUPPLIES, INC.,
a Texas corporation
By /s/ XXXXXX X. XXXXXXXXX XX.
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Title: President
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The undersigned has executed a Continuing Guaranty in favor of
Foothill Capital Corporation ("Foothill") respecting the obligations of the
above-referenced Borrowers owing to Foothill. The undersigned acknowledges the
terms of the above Amendment and reaffirms and agrees that: its Continuing
Guaranty remains in full force and effect; nothing in such Continuing Guaranty
obligates Foothill to notify the undersigned of any changes in the financial
accommodations made available to the Borrowers or to seek reaffirmations of the
Continuing Guaranty; and no requirement to so notify the undersigned or to seek
reaffirmations in the future shall be implied by the execution of this
reaffirmation.
MAGICSILK, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX, XX.
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Name: Xxxxxx X. Xxxxxxxxx, Xx.
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Title: President
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