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FIRST AMENDMENT AND WAIVER
TO BUSINESS LOAN AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO BUSINESS LOAN AGREEMENT (this "First
Amendment") dated as of April 11, 1997, is made and entered into by and between
ANGELES METAL TRIM CO., a California corporation ("Borrower"), and UNION BANK
OF CALIFORNIA, N.A., a national banking association ("Bank").
RECITALS:
A. Borrower and Bank are parties to that certain Business Loan Agreement
dated as of January 15, 1997 (the "Agreement"), pursuant to which Bank agreed
to extend credit to Borrower in the aggregate principal amount at any one time
outstanding not to exceed the lesser of (i) Four Million Dollars ($4,000,000)
and (ii) the sum of (a) eighty percent (80%) of Borrower's Eligible Accounts
and (b) fifty percent (50%) of Borrower's Eligible Inventory; provided,
however, that the aggregate advance against Borrower's Eligible Inventory shall
not exceed One Million Four Hundred Thousand Dollars ($ 1,400,000).
B. Pursuant to Subsection 4.1 (b) of the Agreement, Borrower agreed to
maintain at all times from and after the date of the Agreement a ratio of total
liabilities (as determined in accordance with generally accepted accounting
principles) to Tangible Net Worth (as such term is defined in the Agreement) of
not greater than 3.75 to 1.00. Borrower did not maintain a ratio of total
liabilities to Tangible Net Worth of not greater than 3.75 to 1.00 for the two
(2) month period ended February 28, 1997, which failure constitutes an Event of
Default under Subsection 5.3 of the Agreement. In addition, Borrower has
informed Bank that Borrower will fail to maintain a ratio of total liabilities
to Tangible Net Worth of not greater than 3.75 to 1.00 for the fiscal year of
Borrower ending on December 31, 1997, which failure constitutes a prospective
Event of Default under Subsection 5.3 of the Agreement. Borrower has requested
that Bank agree to waive such Events of Default and prospective Event of
Default. Bank is willing to so waive such Events of Default and prospective
Event of Default, but subject to the terms and conditions of this First
Amendment.
C. Pursuant to Subsection 4.3(d), Borrower agreed to have a perpetual
inventory system operating and in place prior to March 31, 1997. Borrower has
installed such perpetual inventory system; however, such perpetual inventory
system was not operating prior to March 31, 1997. Borrower has requested that
Bank agree to amend Subsection 4.3(d) to extend the deadline for such perpetual
inventory system to be operating to June 30,1997.
D. As of February 28,1997, an overadvance in the principal amount of Two
Hundred Ninety-Five Thousand Dollars ($295,000) was outstanding under the
Borrowing Base Loan (as such term is defined in the Agreement) and Bank has
requested that Borrower repay the amount of such overadvance.
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E. Borrower and Bank also desire to amend the Agreement in certain other
respects, but subject to the terms and conditions of this First Amendment.
AGREEMENT:
In consideration of the above recitals and of the mutual covenants and
conditions contained herein, Borrower and Bank agree as follows:
1. DEFINED TERMS. Initially capitalized terms used herein which are not
otherwise defined shall have the meanings assigned thereto in the Agreement.
2. WAIVERS. Subject to the terms and conditions set forth in Sections 3, 5 and
6 of this First Amendment, Bank hereby waives (a) the Events of Default that
occurred under Subsection 5.3 of the Agreement as a result of Borrower's
failure, pursuant to Subsection 4.1(b) of the Agreement, to maintain a ratio of
total liabilities to Tangible Net Worth for the two (2) month period ended
February 28, 1997 of not greater than 3.75 to 1.00 and (b) the prospective
Event of Default that will occur under Subsection 5.3 of the Agreement as a
result of Borrower's prospective failure, pursuant to Subsection 4.1(b) of the
Agreement, to maintain a ratio of total liabilities to Tangible Net Worth for
the fiscal year ending December 31,1997 of not greater than 3.75 to 1.00.
3. WAIVERS LIMITED. The waivers provided for in Section 2 of this First
Amendment are limited precisely as written and shall not be deemed to excuse
Borrower's performance of Subsection 4.1(b) of the Agreement subsequent to
December 31, 1997 or any other condition, covenant or term contained in the
Agreement or any other Loan Document. Any failure or delay on the part of Bank
in the exercise of any right, power or privilege under the Agreement or any
other Loan Document shall not operate as a waiver thereof.
4. AMENDMENTS TO AGREEMENT.
(a) Subsection 1.2 of the Agreement is hereby amended by adding the
following parenthetical phrase after the percentage "50%" appearing in the
fourth line thereof:
"(or, as provided for and subject to the conditions set forth in
Subsection 4.3(d) hereof, 40%)"
(b) Subsection 4.1(a) of the Agreement is hereby amended to read in full
as follows:
"(a) Commencing January 31, 1997, Working Capital of not less than
Three Hundred Thousand Dollars ($300,000). As used herein, 'Working Capital'
shall mean the excess of Borrower's current assets over Borrower's current
liabilities."
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(c) Subsection 4.3(d) of the Agreement is hereby amended to read full as
follows:
"(d) On or before June 30, 1997, a perpetual inventory system for
Borrower shall be in place and operating and Borrower's auditors shall have
submitted to Bank a letter certifying that such system is in place and
operating. Within thirty (30) days after Bank's receipt of such letter, Bank
shall independently audit and verify the adequacy of such system. In the event
that either of the aforementioned requirements is not satisfied on or before
June 30, 1997, the advance rate against Borrower's Eligible Inventory provided
for in Subsection 1.2 of this Agreement shall be forty percent (40%) rather
than fifty percent (50%), effective on August 1, 1997 and continuing until such
time, if at all, as such system is in place and operating and so audited and
verified, at which time the advance rate against Borrower's Eligible Inventory
under Subsection 1.2 of this Agreement shall again be fifty percent (50%)."
(d) Subsection 4.11 of the Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, Borrower may borrow an amount not
exceeding Three Hundred Thousand Dollars ($300,000) (the 'Subordinated Loan')
from Stone Pine Colorado, LLC, Consolidated Capital of North America, Inc. and
XXX Acquisition Group, LLC (collectively, 'Subordinating Creditors') so long as
(a) the proceeds of the Subordinated Loan are promptly paid by Borrower to Bank
to repay in full the overadvance under the Borrowing Base Loan outstanding
immediately prior to the date of the First Amendment to this Agreement and (b)
the Subordinated Loan is subordinated to the Obligations owing by Borrower to
Bank hereunder and under the other Loan Documents pursuant to a Subordination
Agreement executed by Subordinating Creditors in a form reasonably acceptable
to Bank."
(e) Subsection 4.12 of the Agreement is hereby amended to read in full as
follows:
"4.12 Not, and will not permit any guarantor to, without Bank's prior
written consent, liquidate, dissolve, enter into any consolidation, merger,
partnership or other combination, or convey, sell or lease all or the greater
part of its assets or business, or purchase or lease all or the greater part of
the assets or business of any other person or entity; provided, however, that
Borrower may permit Angeles Acquisition Corp. to merge into Borrower so long as
(i) no Event of Default or event which, with notice or the lapse of time, or
both, would constitute an Event of Default, has occurred and is continuing or
would result from such merger, (ii) Borrower is the surviving corporation of
such merger, (iii) Bank shall have received a proforma balance sheet and income
statement for the surviving corporation of such merger on or before April
30,1997 prepared by a CPA firm satisfactory to Bank, (iv) that the financial
effects of the merger as set forth in the proforma balance sheet and income
statement shall be satisfactory to Bank and (v) as a result of such merger,
Borrower shall be the wholly-owned subsidiary of Consolidated Capital of North
America, Inc."
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(f) Section 4 of the Agreement is hereby further amended by renumbering
Subsection 4.16 as Subsection 4.17 and by adding a new Subsection 4.16 thereto,
which shall read in full as follows:
"4.16 Not make any payment or prepayment of principal or interest on any
of the obligations owing by Borrower to Xxxxxx Xxxxxxxx Cable, except that
rental payments by Borrower to Xxxxxx Xxxxxxxx Cable shall be permitted.
Amounts owed to Xxxxxx Xxxxxxxx Cable may be satisfied through the issuance of
Consolidated's equity securities."
5. EFFECTIVENESS OF THIS FIRST AMENDMENT. This First Amendment shall become
effective as of the date hereof when, and only when, Bank shall have received
all of the following, in form and substance satisfactory to Bank:
(a) A counterpart of this First Amendment, duly executed by Borrower and
acknowledged by Angeles Acquisition Corp., as guarantor, where indicated
hereinbelow;
(b) A principal payment in an amount not less than the amount sufficient
to repay in full the overadvance under the Borrowing Base Loan outstanding
immediately prior to the date of this Agreement, which payment shall be
promptly applied by Bank to repay in full such overadvance;
(c) A new Continuing Guaranty, on Bank's standard form therefor, duly
executed by Consolidated Capital of North America, Inc. ("Consolidated"),
whereby Consolidated shall unconditionally guarantee the Obligations of
Borrower under and as defined therein; provided, however, that Consolidated's
liability thereunder for principal (excluding accrued interest and Bank's
expenses) shall not exceed Four Million Dollars ($4,000,000);
(d) An Alternative Dispute Resolution Agreement, on Bank's standard form
therefor, relating to the determination of claims and controversies under the
new Continuing Guaranty, duly executed by Consolidated;
(e) An Authorization to Obtain Credit, Grant Security, Guarantee or
Subordinate, on Bank's standard form therefor, attesting to the resolution of
the board of directors of Consolidated authorizing the execution and delivery
of the new Continuing Guaranty described in subparagraph (c) hereinabove;
(f) Borrower's accounts receivable balance for the week ending on such
date, and Borrower agrees to furnish same on a weekly basis until June 30,
1997, and on a daily basis thereafter;
(g) A Subordination Agreement on Bank's standard form therefor (the
"Subordination Agreement"), duly executed by Stone Pine Colorado, LLC,
Consolidated Capital of North America, Inc. and XXX Acquisition Group, LLC
(collectively, "Subordinating Creditors"), as subordinating creditors, in favor
of Bank, pursuant to which Subordinating Creditors shall unconditionally
subordinate the obligations owing by
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Borrower to them pursuant to that certain promissory note dated April 9, 1997
in the principal amount of Three Hundred Thousand Dollars ($300,000) (the
"Subordinated Note") to the Obligations owing by Borrower to Bank under the
Agreement and under the other Loan Documents. The Subordination Agreement shall
provide, among other things, that so long as no Event of Default or event
which, with the giving of notice or the lapse of time, or both, would become an
Event of Default, has occurred and is continuing at the time of such payment,
Subordinating Creditors shall be entitled to receive regularly scheduled
payments of principal and interest (i.e., not prepayments or payments made as a
result of acceleration) on the Subordinated Note;
(h) Alternative Dispute Resolution Agreements, each on Bank's standard
form therefor, relating to the determination of claims and controversies under
the Subordination Agreement described in subparagraph (g) herein above, duly
executed by Subordinating Creditors;
(i) Authorizations to Obtain Credit, Grant Security, Guarantee or
Subordinate, each on Bank's standard form therefor, attesting to the
resolutions of the board of directors, managers or members, as the case may be,
of Subordinating Creditors authorizing the execution and delivery of the
Subordination Agreement described in subparagraph (g) hereinabove;
(j) Copies of the articles of incorporation, articles of organization,
operating agreements and other similar organizational documents of
Subordinating Creditors, as required by Bank;
(k) A fee in connection with the waiver and amendments provided for in
this First Amendment in the sum of Five Thousand Dollars ($5 000); and
(l) Such other documents, instruments or agreements as Bank may reasonably
deem necessary.
6. CONDITION SUBSEQUENT. Borrower agrees to furnish to Bank, on or before May
10, 1997, (a) bi-weekly cash flow projections of Borrower for the months of
May, 1997 and June, 1997, in form and substance satisfactory to Bank, and (b) a
revised projected income statement of Borrower for the fiscal year of Borrower
ending December 31, 1997, in form and substance satisfactory to Bank. Upon
Bank's receipt and review of the Items described in subparagraphs (a) and (b)
of this Section 6, Bank reserves the right, in its sole discretion, to require
a further amendment or amendments to the Agreement. Borrower's failure to
furnish Bank with any of the items described in subparagraphs (a) and (b) of
this Section 6 or to execute and deliver such further amendment or amendments
to Bank shall constitute an Event of Default under the Agreement, and entitle
Bank to exercise any of its rights and remedies thereunder.
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7. RATIFICATION.
(a) Except as specifically amended herein above, the Agreement shall
remain in full force and effect and is hereby ratified and confirmed; and
(b) Upon the effectiveness of this First Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Agreement shall mean and be a reference to the
Agreement as amended by this First Amendment.
8. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants as
follows:
(a) Each of the representations and warranties contained in Section 3 of
the Agreement, as amended hereby, is hereby reaffirmed as of the date hereof,
each as if set forth herein;
(b) The execution, delivery and performance of this First Amendment are
within Borrower's corporate powers, have been duly authorized by all necessary
corporate action, have received all necessary approvals, if any, and do not
contravene any law or any contractual restriction binding on Borrower;
(c) This First Amendment is the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms; and
(d) Except as provided herein above, no event has occurred and is
continuing or would result from this First Amendment which constitutes an Event
of Default under the Agreement, or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
9. GOVERNING LAW. This First Amendment shall be deemed a contract under 'and
subject to, and shall be construed for all purposes and in accordance with, the
laws of the State of California.
10. COUNTERPARTS. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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WITNESS the due execution hereof as of the date first above written
ANGELES METAL TRIM CO.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
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By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President, Secretary and Treasurer
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxx X. Xxxxxxx
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Title: Vice President
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Acknowledgment of Existing Guarantor
The undersigned, as the existing Guarantor pursuant to that certain Continuing
Guaranty dated as of January 15, 1997 (the "Guaranty"), hereby consents to the
foregoing First Amendment and acknowledges and agrees, without in any manner
limiting or qualifying its obligations under the Guaranty, that payment of the
Obligations (as such term is defined in the Guaranty) and the punctual and
faithful performance, keeping, observance and fulfillment by Borrower of all of
the agreements, conditions, covenants and obligations of Borrower contained in
the Agreement are and continue to be unconditionally guaranteed by the
undersigned pursuant to the Guaranty.
ANGELES ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
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By: /s/ Xxxxxx X. Xxxxxxx
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Title: Secretary and Treasurer
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