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EXHIBIT 10.67
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT dated as of the 20th day of February,
2000, by and between FLEET NATIONAL BANK, a national banking association having
an office located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (the "Bank"), and
DECORA INCORPORATED, a Delaware corporation having an address at 0 Xxxx Xxxxxx,
Xxxx Xxxxxx, Xxx Xxxx 00000 (the "Borrower").
WHEREAS, the Borrower and the Bank entered into a certain Restated
Secured Revolving Line of Credit Agreement dated as of the 29th day of April,
1998 (the "Loan Agreement"), which agreement restated and amended various prior
agreements between Borrower and the Bank. (Capitalized terms used herein and not
otherwise defined shall have the meanings attributed to them in the Loan
Agreement); and
WHEREAS, pursuant to the Loan Agreement the Bank agreed to extend a loan
of up to $15,000,000.00 (the "Loan") to the Borrower; and
WHEREAS, pursuant to the Loan Agreement, the Borrower made various
covenants, including financial covenants; and
WHEREAS, Borrower has violated these covenants and is in default as
described in Section 1 hereof; and
WHEREAS, Borrower has asked that the Bank modify these covenants and
waive the current default under the Loan Agreement.
WHEREAS, advances of the Loan under the Loan Agreement were to be based
upon percentages of "Acceptable Accounts Receivable" and "Acceptable Inventory",
as those terms are defined in the Loan Agreement; and
WHEREAS, the Borrower has requested that the basis for advances of the
Loan be modified; and
WHEREAS, the Bank has agreed to such modifications subject to the terms
and conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing recitals and the
promises and mutual covenants hereinafter set forth, the parties hereto agree as
follows:
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1. Acknowledgment of Default. Borrower acknowledges and agrees that
an Event of Default has occurred in that Borrower has failed to maintain the
"Minimum Fixed Charge Coverage Covenant" set forth in Section IV (d) of the Loan
Agreement for the rolling four (4) quarters basis ended on September 30, 1999.
Subject to the Borrower's compliance with all other terms of the Loan Agreement
and with this Amendment, the Bank hereby waives such default.
2. Covenant Modification. The following provision is hereby added to
the Loan Agreement following the last sentence of Section IV (d) of such
agreement:
Notwithstanding the foregoing, for the rolling four (4) quarter
period ended on December 31, 1999, the Borrower will have
maintained a Modified Minimum Fixed Charge Coverage Covenant of
6.70:1.00. The modified covenant is defined as follows:
"EBITDA + Non-cash restructuring expenses divided by Interest
expense + Current Maturities of Long Term Debt (prior four
quarters) + Cash Taxes + Tangible and Intangible CAPEX (net of
financed CAPEX) + Dividends/Distributions".
The aforementioned modified covenant shall apply only to the
rolling four (4) quarter period ended on December 31, 1999. For
all preceding and succeeding periods, the Minimum Fixed Charge
Coverage Covenant previously set forth in this section IV (d)
shall apply.
3. Increased Reporting. The following provision is added as Section
IV (g)(11) of the Loan Agreement as follows:
Within twenty five (25) days after the end of each fiscal quarter
commencing with the quarter ending March 31, 2000, a compliance
letter acknowledged by the Chief Financial Officer of Borrower
with respect to the covenant set forth in Section IV (d) hereof
based on the Borrower's preliminary internally prepared financial
records.
Section IV (g)(11) of the Loan Agreement is hereby relettered to
Section IV (g)(12).
4. Amended and Restated Revolving Promissory Note. All references in
the Loan Agreement to the term "Note" shall, for all times subsequent to the
date hereof, refer to that certain Amended and Restated Revolving Promissory
Note executed and delivered by the Borrower to the Bank on even date herewith.
Borrower acknowledges and agrees that the Amended and Restated Promissory Note
bears interest at a higher rate than the Restated Revolving Promissory Note
dated April 29, 1998 from the Borrower to the Bank.
5. Default Interest Rate. Borrower acknowledges and agrees that, as
an Event of Default occurred under the Loan Agreement effective September 30,
1999, the Bank was legally
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entitled to collect interest at the Default Rate from that time forward. The
Bank has collected interest on the Loan, from January 1, 2000 to the date hereof
at the Fleet National Bank Prime Rate plus two and one quarter percentage points
per annum. The Borrower acknowledges and agrees that this interest charge has
been proper in all respects.
6. Capital Infusion. The Borrower warrants and represents that its
parent company, Decora Industries, Inc. or any subsidiary thereof ("Decora")
shall have contributed as capital or loaned Borrower a minimum sum of Three
Million Five Hundred Thousand Dollars ($3,500,000) and that such sum shall have
been received on or before April 27, 2000. The Borrower further warrants and
represents that the proceeds of such loan shall be applied by the Borrower to
the outstanding balance of the Loan on or before April 28, 2000.
7. Formula Modification. The terms and conditions of the Loan
Agreement are hereby modified to reflect the following amendments and
modifications:
a. The definition "Acceptable Accounts Receivable" is amended
in its entirety as follows:
"Acceptable Accounts Receivable" shall mean 75% of all Domestic
Accounts Receivable, Canadian Accounts Receivable and Freidola
Accounts Receivable aged 90 days or less, and all insured and
letter of credit backed foreign accounts receivable aged 90 days
or less that are free and clear of all liens, and are
unconditionally owed to the Borrower without defense, offset or
counterclaim. Acceptable Accounts Receivable shall also include
accounts receivable which are aged 60 days or less past the due
date, not to exceed 120 days from invoice date, and which are
otherwise acceptable to the Bank in the exercise of the Bank's
sole and absolute judgment and discretion.
b. The definition "Acceptable Inventory" is amended in its
entirety as follows:
"Acceptable Inventory" shall mean 50% of all inventory excluding
all work in process and all chemicals, inks, cases, cartons and
racks, all valued at the lower of "cost" or "market" as
determined in accordance with generally accepted accounting
principles consistently applied, and otherwise acceptable to the
Bank, subject to a $6,000,000.00 cap on borrowings based on
inventory.
8. Default Waiver and Formula Modification Fee. In consideration for
the foregoing, the Borrower does agree to pay to the Bank a default waiver fee
of One Hundred Thousand Dollars ($100,000.00) and formula modification fee of
Forty Five Thousand Dollars ($45,000.00) [for a total of One Hundred Forty Five
Thousand Dollars ($145,000.00)] simultaneously with the execution hereof, and to
promptly reimburse the Bank for any and all expenses incurred by the Bank in
connection with the making of this agreement, including Bank's reasonable
counsel fees and disbursements.
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9. Attorney Opinion Letter. Within seven (7) days from the date
hereof, Borrower shall cause to be delivered to the Bank, an attorneys opinion
letter from legal counsel acceptable to the Bank in substantially the form set
forth in Exhibit "A" hereto or otherwise acceptable to the Bank.
10. Limitation on Interest. All agreements between the Borrower and
Bank are hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of any Indebtedness, shall the
amount paid or agreed to be paid to Bank for the use or forbearance of
Indebtedness contemplated hereby exceed the maximum permissible under applicable
law. As used herein, the term "applicable law" shall mean the law in effect as
of the date hereof provided, however that in the event there is a change in the
law which results in a higher permissible rate of interest, then the Loan
Agreement shall be governed by such new law as of its effective date. In this
regard, it is expressly agreed that it is the intent of the Borrower and Bank in
the execution, delivery and acceptance of this Agreement to contract in strict
compliance with the laws of the State of New York from time to time in effect.
If, under or from any circumstances whatsoever, fulfillment of any provision
hereof at the time of performance of such provision shall be due, shall involve
transcending the limit to such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits of such
validity, and if under or from circumstances whatsoever Bank should ever receive
as interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of interest. This
provision shall control every other provision of all agreements between the
Borrower and the Bank.
11. Setoff. The Borrower hereby grants to Bank a lien, security
interest and right of setoff as security for all liabilities and obligations of
the Borrower to the Bank, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Bank or any entity under the
control of FleetBoston Financial Group, Inc. and its successors and/or assigns
or in transit to any one of them. At any time, without demand or notice, the
Bank may set off the same or any part thereof and apply the same to any
liability or obligation of the Borrower even though unmatured and regardless of
the adequacy of any other collateral securing the Loan. ANY AND ALL RIGHTS TO
REQUIRE THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE LOAN, IF ANY, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12. Waiver of Jury Trial. BORROWER AND BANK MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AMENDMENT OR THE LOAN AGREEMENT, OR THE OBLIGATIONS RELATED HERETO OR
THERETO, TO
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THE FULLEST EXTENT ALLOWED BY LAW. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR BANK TO ISSUE THIS AGREEMENT.
13. Review by Counsel. Borrower acknowledges that it has consulted
with counsel and with such other experts and advisors as it has deemed necessary
in connection with the negotiation, execution and delivery of this amendment.
This amendment and the Loan Agreement shall be construed without regard to any
presumption or rule requiring that they be construed against the party causing
them or any part thereof to be drafted.
14. Captions. Captions in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
15. No Waiver. By entering into this agreement, the Bank in no way
waives any rights it may have against the Borrower pursuant to the Loan
Agreement except as the same have been expressly modified hereby.
16. Reaffirmation and Ratification. The Borrower reaffirms and
ratifies each and every covenant and representation set forth in the Loan
Agreement, except as modified hereby, and agrees to comply and observe each of
them.
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IN WITNESS WHEREOF, the parties have executed and delivered this
agreement as of the date first above written.
FLEET NATIONAL BANK
By:_____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
DECORA INCORPORATED
By:_____________________________
Name: Xxxxxx X. Xxxxxxxxx
Title:
ACKNOWLEDGMENTS
STATE OF NEW YORK )
)ss:
COUNTY OF ________________ )
On ___________________, 2000, before me personally came Xxxxx X. Xxxxxx,
to me known, who being by me duly sworn, did depose and say that he is a Vice
President of FLEET NATIONAL BANK, the entity described in the foregoing
instrument, and acknowledged that he executed the same by order of the Board of
Directors of such entity.
_______________________________________
Notary Public
STATE OF NEW YORK )
)ss:
COUNTY OF ________________ )
On ___________________, 2000, before me personally came
_____________________, to me known, who being by me duly sworn, did depose and
say that (s)he is a ______________ of DECORA INCORPORATED, the entity described
in the foregoing instrument, and acknowledged that (s)he executed the same by
order of the Board of Directors of such entity.
_______________________________________
Notary Public
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