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EXHIBIT 10.19
AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT
This Amendment Number Two to Loan and Security Agreement ("Amendment")
is entered into as, of February __, 1999, by and between FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), and G.I. JOE'S, INC., an
Oregon corporation ("Borrower"), in light of the following:
FACT ONE: Borrower and Foothill have previously entered into that
certain Loan and Security Agreement, dated as of March 10, 1998 (as amended, the
"Agreement").
FACT TWO: Borrower and Foothill desire to further amend the Agreement as
provided for and on the conditions herein.
NOW, THEREFORE, Borrower 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.
(a) Section 1.1 of the Agreement is amended by adding or amending the
following definitions:
"Adjusted Eurodollar Rate" means, with respect to each Interest
Period for any Eurodollar Rate Loan, the rate per annum (rounded upwards, if
necessary, to the next whole multiple of 1/ 16 of 1 % per annum) determined by
dividing (a) the Eurodollar Rate for such Interest Period by (b) a percentage
equal to (i) 100% minus (ii) the Reserve Percentage. The Adjusted Eurodollar
Rate shall be adjusted on and as of the effective day of any change in the
Reserve Percentage.
"Average Unused Portion of Maximum Revolving Amount" means, as of any
date of determination, (a) the Maximum Revolving Amount, less (b) the sum of (i)
the average Daily Balance of Advances that were outstanding during the
immediately preceding month, plus (ii) the average Daily Balance of the undrawn
Letters of Credit that were outstanding during the immediately preceding month.
"Eurodollar Rate" means, with respect to the Interest Period for a
Eurodollar-Rate Loan, the interest rate per annum (rounded upwards, if
necessary, to the next whole multiple of 1/16 of 1% per annum) at which United
States dollar deposits are offered to Norwest Bank Minnesota, National
Association (or its Affiliates) by major banks in the London interbank market
(or other Eurodollar Rate market selected by Foothill) on or about 11:00 a.m.
(California time) two Business Days prior to the commencement of such Interest
Period in amounts comparable to the amount of the Eurodollar Rate Loans
requested by and
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available to Borrower in accordance with this Agreement and for a period equal
to the Interest Period.
"Eurodollar Rate Loan" means any Advance (or any portion thereof)
made or outstanding hereunder during any period when interest on such Advance
(or portion thereof) is payable based on the Adjusted Eurodollar Rate.
"Interest Period" means, for any Eurodollar Rate Loan, the period
commencing on the Business Day such Eurodollar Rate Loan is disbursed or
continued, or on the Business Day on which a Reference Rate Loan is converted to
such Eurodollar Rate Loan, and ending on the date that is one or three months
thereafter, as selected by Borrower and notified to Foothill as provided in
Section 2.12(a) and (b).
"IPO" means an initial public offering shares of Borrower's common
stock with net proceeds to Borrower of not less than $20,000,000.
"Maximum Amount" means $25,000,000.
"Reference Rate Loan" means any Advance (or portion thereof) made or
outstanding hereunder during any period when interest on such Advance (or
portion thereof) is payable based on the Reference Rate.
"Requirement of Law" means, as to any Person: (a) (i) all statutes
and regulations and (ii) court orders and injunctions, arbitrators' decisions,
and/or similar rulings, in each instance by any Governmental Authority or
arbitrator applicable to or binding upon such Person or any of such Person's
property or to which such Person or any of such Person's property is subject;
and (b) that Person's organizational documents, by-laws and/or other instruments
which deal with corporate or similar governance, as applicable.
"Reserve Percentage" for any Interest Period means, as of the date of
determination thereof, the maximum percentage (rounded upward, if necessary to
the nearest 1/100th of 1%), as determined by Foothill (or its Affiliates) in
accordance with its (or their) usual procedures (which determination shall be
conclusive in the absence of manifest error), that is in effect on such date as
prescribed by the Board of Governors of the Federal Reserve System for
determining the reserve requirements (including supplemental, marginal, and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "eurocurrency liabilities") having a term equal to such Interest
Period by Foothill or its Affiliates.
(b) Section 2.6(a) of the Agreement is amended to read as follows:
(a) Interest Rate. Except as provided in Section 2.6(c), below, all
Obligations shall bear interest on the Daily Balance as follows:
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(i) each Eurodollar Rate Loan shall bear interest at a per annum
rate of 3.0 percentage points above the Adjusted Eurodollar Rate;
(ii) all other Obligations shall bear interest at a per annum
rate of 0.25 percentage points above the Reference Rate; and
(iii) in the event that Borrower's net income for the fiscal
year ending January 31, 2000 equals or exceeds $1,000,000, then the interest
rates set for in (i) and (ii) above shall each be reduced by 25 basis points.
Such reduction shall effective on the first day of the month in, which Foothill
receives Borrower's audited financial statement for the fiscal year ending
January 31, 1999.
(c) The first sentence of Section 2.6(e) of the Agreement is amended
as follows:
Interest in respect of Reference Rate Loans and Letter of Credit fees payable
hereunder shall be due and payable, in arrears, on the first day of each month
during the term hereof. Interest in respect of each Eurodollar Rate Loan shall
be due and payable, in arrears, on (i) the last day of the applicable Interest
Period, and (ii) the first day of each month occurring during the term thereof.
(d) Section 2.11 is amended to add subsection (b) and to amend
subsection (d) to read as follows:
(b) Unused Line Fee. On the first day of each month during the term
of this Agreement, an unused line fee in an amount equal to 0.25 % per annurn
times the Average Unused Portion of the Maximum Amount; provided, however, upon
closing of the IPO such fee shall be reduced to 0.125 % per annum times the
Average Unused Portion of the Maximum Amount.
(d) Servicing Fee, On the first day of each month during the term of
the Agreement, and thereafter so long as any Obligations are outstanding, a
servicing fee in the amount of $3,000 per month, which fee shall be reduced to
$2,500 upon closing of the IPO.
(e) Article 2 of the Agreement is amended by adding the following
Section 2.12 through Section 2.15:
2.12 EURODOLLAR RATE LOANS. Any other provisions herein to the
contrary notwithstanding, the following provisions shall govern with respect to
Eurodollar Rate Loans as to the matters covered:
(a) Borrowing; Conversion; Continuation. Borrower may from time to
time (and subject to the satisfaction of the requirements of Section 3.2),
request in a written communication with Foothill: (i) Advances to constitute
Eurodollar Rate Loans; (ii) that Reference Rate Loans be converted into
Eurodollar Rate Loans; or (iii) that existing
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Eurodollar Rate Loans continue for an additional Interest Period. Any such
request shall specify the aggregate amount of the requested Eurodollar Rate
Loans, the proposed funding date therefor (which shall be a Business Day, and
with respect to continued Eurodollar Rate Loans shall be the last day of the
Interest Period of the existing Eurodollar Rate Loans being continued), and the
proposed Interest Period (in each case subject to the limitations set forth
below). Eurodollar Rate Loans may only be made, continued, or extended if, as of
the proposed funding date therefor, each of the following conditions is
satisfied:
(u) no Event of Default exists;
(v) no more than three Interest Periods may be in effect at any one
time;
(w) the amount of each Eurodollar Rate Loan borrowed, converted, or
continued must be in an amount not less than $1,000,000 and integral multiples
of $500,000 in excess thereof;
(x) the aggregate amount of Eurodollar Rate Loans outstanding shall
not exceed, at any time, 80% of Borrower outstanding Obligations;
(y) Foothill shall have determined that the Interest Period or
Adjusted Eurodollar Rate is available to it and can be readily determined as of
the date of the request for such Eurodollar Rate Loan by Borrower; and
(z) Foothill shall have received such request Business Days prior to
the proposed funding date therefor.
Any request by Borrower to borrow Eurodollar Rate Loans, to convert
Reference Rate Loans to Eurodollar Rate Loans, or to continue any existing
Eurodollar Rate Loans shall be irrevocable, except to the extent that Foothill
shall determine under Sections 2.12(a), 2.13 or 2.14 that such Eurodollar Rate
Loans cannot be made or continued.
(b) Determination of Interest Period. By giving notice as set forth in
Section 2.12(a), Borrower shall select an Interest Period for such Eurodollar
Rate Loan. The determination of the Interest Period shall be subject to the
following provisions:
(i) in the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day which is
not a Business Day, the Interest Period shall be extended to expire on the
next succeeding Business Day; provided, however, that if the next succeeding
Business Day occurs in the following calendar mouth, then such Interest
Period shall expire on the immediately preceding Business Day;
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(iii) if any Interest Period begins on the last Business Day of a
month, or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, then the Interest
Period shall end on the last Business Day of the calendar month at the end
of such Interest Period; and
(iv) Borrower may not select an Interest Period which expires later
than the Maturity Date.
(c) Automatic Conversion; Optional Conversion by Foothill. Any
Eurodollar Rate Loan shall automatically convert to a Reference Rate Loan upon
the last day of the applicable Interest Period, unless Foothill has received a
request to continue such Eurodollar Rate Loan at least two Business Days prior
to the end of such Interest Period in accordance with the terms of Section
2.12(a). Any Eurodollar Rate Loan shall, at Foothill's option, upon notice to
Borrower, immediately convert to a Reference Rate Loan in the event that (i) an
Event of Default shall have occurred and be continuing or (ii) this Agreement
shall terminate, and Borrower shall pay to Foothill any amounts required by
Section 2.15 as a result thereof
2.13 ILLEGALITY. Any other provision herein to the contrary
notwithstanding, if the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof by a Governmental Authority made
subsequent to February 1, 1999 shall make it unlawful for Foothill to make or
maintain Eurodollar Rate Loans as contemplated by this Agreement, (a) the
obligation of Foothill hereunder to make Eurodollar Rate Loans, continue
Eurodollar Rate Loans as such, and convert Reference Rate Loans to Eurodollar
Rate Loans shall forthwith be suspended and (b) Foothill's then outstanding
Eurodollar Rate Loans, if any, shall be converted automatically to Reference
Rate Loans on the respective last days of the then current Interest Periods with
respect thereto or within such earlier period as required by law; provided,
however, that before making any such demand, Foothill agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, in
its reasonable discretion, in any legal, economic, or regulatory manner) to
designate a different lending office if the making of such a designation would
allow Foothill or its lending office to continue to perform its obligations to
make Eurodollar Rate Loans. If any such conversion of a Eurodollar Rate Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, Borrower shall pay to Foothill such amounts, if any, as
may be required pursuant to Section 2.14. If circumstances subsequently change
so that Foothill shall determine that it is no longer so affected, Foothill will
promptly notify, and upon receipt of such notice, the obligations of Foothill to
make or continue Eurodollar Rate Loans or to convert Reference Rate Loans into
Eurodollar Rate Loans shall be reinstated.
2.14 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof by a Governmental Authority made
subsequent to the Closing Date or compliance by Foothill with any request or
directive (whether or not having
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the force of law) from any central bank or other Governmental Authority made
subsequent to the Closing Date
(i) shall subject Foothill to any tax, levy, charge, fee,
reduction, or withholding of any kind whatsoever with respect to
Eurodollar Rate Loans, or change the basis of taxation of payments to
Foothill in respect thereof (except for the establishment of a tax based
on the net income of Foothill or changes in the rate of tax on the net
income of Foothill);
(ii) shall in respect of Eurodollar Rate Loans impose,
modify or hold applicable any reserve, special deposit, compulsory loan,
or similar requirement against assets held by, deposits or other
liabilities in or for the account of, Advances or other extensions of
credit by, or any other acquisition of funds by, any office of Foothill;
or
(iii) shall impose on Foothill any other condition with
respect to Eurodollar Rate Loans;
and the result of any of the foregoing is to increase the cost to Foothill, by
an amount which Foothill deems to be material, of making, converting into,
continuing, or maintaining Eurodollar Rate Loans or to increase the cost to
Foothill in respect of Eurodollar Rate Loans, by an amount which Foothill deems
to be material, or to reduce any amount receivable hereunder in respect of
Eurodollar Rate Loans, or to forego any other sum payable thereunder or make any
payment on account thereof in respect of Eurodollar Rate Loans, then, in any
such case, Borrower shall promptly pay Foothill, upon its demand, any additional
amounts necessary to compensate Foothill for such increased cost or reduced
amount receivable; provided, however, that before making any such demand,
Foothill agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic, or
regulatory manner) to designate a different Eurodollar lending office if the
making of such designation would allow Foothill or its Eurodollar lending office
to continue to perform its obligations to make Eurodollar Rate Loans or to
continue to fund or maintain Eurodollar Rate Loans and avoid the need for, or
materially reduce the amount of, such increased cost. If Foothill becomes
entitled to claim any additional amounts pursuant to this Section 2.14, Foothill
shall promptly notify Borrower of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
Section 2.14 submitted in reasonable detail by Foothill to Borrower shall be
conclusive in the absence of manifest error. Within five Business Days after
Foothill notifies Borrower of any increased cost pursuant to the foregoing
provisions of this Section 2.14, Borrower may convert all Eurodollar Rate Loans
then outstanding into Reference Rate Loans in accordance with Section 2.12 and,
additionally, reimburse Foothill for any cost in accordance with Section 2.15.
This covenant shall survive the termination of this Agreement and the payment of
the Advances and all other amounts payable hereunder for nine months following
such termination and repayment.
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(b) If Foothill shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof by a Governmental Authority made
subsequent to the Closing Date or compliance by Foothill or any Person
controlling Foothill with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to February 1, 1999 does or shall have the effect of increasing the
amount of capital required to be maintained or reducing the rate of return on
Foothill's or such Person's capital as a consequence of its obligations
hereunder to a level below that which Foothill or such Person could have
achieved but for such change or compliance (taking into consideration Foothill's
or such Person's policies with respect to capital adequacy) by an amount deemed
by Foothill to be material, then from time to time, after submission by Foothill
to Borrower of a prompt written request therefor, Borrower shall pay to Foothill
such additional amount or amounts as will compensate Foothill or such Person for
such reduction. This covenant shall survive the termination of this Agreement
and the Payment of the Advances and all other amounts payable hereunder for nine
months following such termination and repayment.
2.15 INDEMNITY. Borrower agrees to indemnify Foothill and to hold
Foothill harmless from any loss or expense which Foothill may sustain or incur
as a consequence of (a) default by Borrower in payment when due of the principal
amount of or interest on any Eurodollar Rate Loan, (b) default by Borrower in
making a Borrowing of, conversion into, or continuation of Eurodollar Rate Loans
after Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by Borrower in making any prepayment
of a Eurodollar Rate Loan after Borrower has given a notice thereof in
accordance with the provisions of this Agreement, or (d) the making of a
prepayment of Eurodollar Rate Loans on a day which is not the last day of an
Interest Period with respect thereto (whether due to the termination of this
Agreement, upon an Event of Default, or otherwise), including, in each case, any
such loss or expense (but excluding loss of margin or anticipated profits)
arising from the reemployment of funds obtained by it or from fees payable to
terminate the deposits from which such funds were obtained; provided, however,
that Foothill, if requesting indemnification, shall have delivered to the
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error. Calculation of
all amounts payable to Foothill under this Section 2.15 shall be made as though
Foothill had actually funded the relevant Eurodollar Rate Loan through the
purchase of a deposit bearing interest at the Eurodollar Rate in an amount equal
to the amount of such Eurodollar Rate Loan and having a maturity comparable to
the relevant Interest Period; provided, however, that Foothill may fund each of
the Eurodollar Rate Loans in any manner it sees fit, and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this Section 2.15. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of nine months thereafter.
(f) Section 3.4 of the Agreement is amended to read as follows:
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3.4 Term; Automatic Renewal. This Agreement shall become effective
upon the execution and delivery hereof by Borrower and Foothill and shall
continue in full force and effect for a term ending on March 10, 2002 (the
"Renewal Date") and automatically shall be renewed for successive one year
periods thereafter, unless sooner terminated pursuant to the terms hereof.
Either party may terminate this Agreement effective on the Renewal Date or on
any anniversary of the Renewal Date by giving the other party at least 90 days
prior written notice. The foregoing notwithstanding, Foothill shall have the
right to terminate its obligations under this Agreement immediately and without
notice upon the occurrence and during the continuation of an Event of Default.
(g) Section 3.6 of the Agreement is amended to read as follows:
3.6 Early Termination by Borrower. The provisions of Section 3.4
that allow termination of this Agreement by Borrower only on the Renewal Date
and certain anniversaries thereof notwithstanding, Borrower has the option, at
any time upon 90 days prior written notice to Foothill, to terminate this
Agreement by paying to Foothill, in cash, the Obligations (including an amount
equal to 102% of the undrawn amount of the Letters of Credit), in full, together
with a premium (the "Early Termination Premium") equal to the following
percentages of the Maximum. Amount in effect on the date hereof, as applicable:
(a) 3.00% of the Maximum Amount during the period ending Xxxxx 00, 0000, (x)
2.00% of the Maximum Amount during the period beginning March 11, 2000 and
ending on March 10, 2001, and (c) 1.00% of the Maximum Amount at any time after
March 10, 2001.
(h) Section 7.20(a) is amended to read as follows:
7.20 Financial Covenants. Fail to maintain:
(a) Tangible Net Worth. Tangible Net Worth of at least the
following amounts as of the end of the following fiscal quarters:
Fiscal Quarter Ending Minimum Tangible Net Worth
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October 31, 1998 $4,000,000
January 31, 1999 $4,350,000
April 30, 1999 $4,550,000
July 31, 1999 $7,100,000
October 31, 1999 $7,600,000
January 31, 2000 $8,700,000
April 30, 2000 $7,150,000
July 31, 2000 $8,350,000
October 31, 2000 $8,750,000
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January 31, 2001 $9,750,000
Borrower and Foothill agree to negotiate in financial covenants for
Borrower's fiscal year ending January 31, 2002.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill
that all of 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 DEFAULT. Borrower hereby affirms to Foothill that no Event of
Default has occurred and is continuing as of the date hereof.
5. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the following:
(a) Receipt by Foothill of an executed copy of this Amendment;
6. COSTS AND EXPENSES. Borrower 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.
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:
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Title:
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G.I. JOE'S, INC.
an Oregon corporation
By:
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Title:
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