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EXHIBIT 10.56
AMENDMENT NO. TWO TO THE LOAN
AND SECURITY AGREEMENT
XXXXXXXXX INDUSTRIES. INC., XXXXXXXXX INDUSTRIES. L.P.
AND NBF. INC.
THIS AMENDMENT NO. TWO TO THE LOAN AND SECURITY AGREEMENT (the
"Amendment"), dated as of May __, 1997, is entered into between FOOTHILL
CAPITAL CORPORATION, a California Corporation ("Foothill"), with a place of
business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000-0000, and Xxxxxxxxx Industries, Inc., a Delaware corporation
("Inc."), Xxxxxxxxx Industries, L.P., a Texas limited partnership ("L.P."), and
NBF, Inc., a Georgia corporation ("NBF"), jointly and severally (collectively,
"Borrower"), with their chief executive office located at 000 Xxxxxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxx 00000.
RECITALS
A. Borrower and Foothill have previously entered into that certain
Loan and Security Agreement dated as of August 16, 1996, as amended by
Amendment No. One dated as of January 30, 1997 (the "Loan Agreement"), pursuant
to which Foothill has made certain loans and financial accommodations available
to Borrower. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement.
B. Due to developments in Borrower's business, Borrower has
requested that the Loan Agreement be amended in certain respects.
C. Foothill is willing to amend the Loan Agreement under the terms
and conditions set forth in this Amendment. Borrower is entering into this
Amendment with the understanding and agreement that, except as specifically
provided herein, none of Foothill's rights or remedies as set forth in the Loan
Agreement is being waived or modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follow:
1. Modification of Concentrations. The definition of "Eligible
Accounts" contained in Section 1.1 of the Loan Agreement is amended at
Subsection (g) to read as follows:
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"(g) Accounts with respect to an Account Debtor whose
total obligations owing to Borrower exceed ten percent (10%) of all
Eligible Accounts (or, in the case of Service Merchandise and
Xxxxxx-Xxxxxx, fifteen percent (15%), to the extent of the obligations
owing by such Account Debtor in excess of such percentage; provided,
however, in the case of Wal-Mart or K-Mart, such percentage shall be
seventy-five percent (75%) as to both combined from January 15, 1997
through May 31, 1997, and effective June 1, 1997, such percentage
shall be:
(i) From March - September 30 (i) thirty percent (30%)
of each year thereafter as to each
(ii) From October 1 - February 28 (ii) seventy percent (70%)
of each year thereafter as to both combined"
2. Additional Advances. A new Section 2.1(d) is added to the Loan
Agreement to read as follows:
"(d) In addition to the amounts available under Section
2.1(a), subject to the terms and conditions of this Agreement, Foothill
agrees to make revolving advances to Borrower in an amount at any one
time outstanding not to exceed $1,000,000 between the date of this
Amendment and May 31, 1997.
3. Change in Clearance Days. Section 2.5 of the Loan Agreement is
amended so that every reference to "two (2) Business Days of clearance," "two
(2) Business Day clearance charge: and the like is changed to substitute "two
and one-half (2.5)" in place of "two (2)."
4. Change in Fees.
4.1 Section 2.7(d) of the Loan Agreement is amended to
change the reference to Foothill's customary appraisal fee which currently
reads "One Thousand Dollars ($1,500) per day per appraiser, "to read "One
Thousand Five Hundred Dollars ($1,500) per day per appraiser," and to change
the reference which currently reads "One Thousand Hundred Dollars ($1,000) per
year for its loan documentation review" to read "One Thousand Dollars ($1,000)
per year for its loan documentation review."
4.2 Section 2.7(e) of the Loan Agreement is amended to read
in its entirety as follows:
"(a) Servicing Fee. From the date of this Amendment,
on the first day of each month during the term of this Agreement, and
thereafter so long as any Obligations are outstanding, a servicing fee in an
amount equal to Seven Thousand Dollars ($7,000) per month; provided, however,
that such fee will be reduced to Five Thousand Dollars ($5,000) per month if
Borrower's operating income is at least Two Million Seven Hundred Thousand
Dollars
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($2,700,000) for the fiscal year ended March 31, 1998 as reflected on
the audited financial statements for the year."
4.3 Section 2.7 of the Loan Agreement is amended to add the
following subsections at the end:
"(h) Overadvance Fee. A fee for the extension of
credit described in the new Section 2.1(b) in the amount of $20,000
payable in four equal monthly installments of $5,000 each beginning
June 1, 1997.
"(i) Waiver and Amendment Fee. A fee in the amount
of $20,000 payable in four equal monthly installments of $5,000 each
beginning June 1, 1997."
5. Extension of Term. The first sentence of Section 3.3 of the
Loan Agreement is amended to read, "This Agreement shall become effective upon
the execution and delivery hereof by Borrower and Foothill and shall continue
in full force and effect until August 20, 2000 (the "Renewal Date"), unless
sooner terminated pursuant to the terms hereof."
6. Modification of Early Termination Premium. The chart presented
in Section 3.5 of the Loan Agreement is amended to read as follows:
Period of Time During Which
Termination Occurs Percent of Maximum Amount
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Prior to August 20, 1997 4.0%
August 21, 1997 to August 20, 1998 4.0%
August 21, 1998 to August 20, 1999 1.5%
August 21, 1999 to August 20, 2000 1.0%
7. Modification of Certain Financial covenants: Waiver.
7.1 Sections 6.13(b) an 6.13(c) are amended to read in
their entirety as follows:
"(b) Total Liabilities to Tangible Net Worth Ratio.
A ratio of Borrower's total liabilities divided by Tangible Net Worth
measured on a fiscal quarter-end basis of not more than:
Date of Fiscal Quarter-End Ratio
-------------------------- -----
9/30/96 4.75:1.0
12/31/96 4.50:1.0
3/31/97 4.00:1.0
6/30/97 13.50:1.0
9/30/97 15.00:1.0
12/31/97 10.50:1.0
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3/31/98 10.50:1.0
6/30/98 9.50:1.0
9/30/98 9.50:1.0
12/31/98 and thereafter 9.00:1.0
"(c) Tangible Net Worth. Tangible Net Worth measured
on a fiscal quarter-end basis of at least:
Date of Fiscal Quarter-End Tangible Net Worth
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9/30/96 $ 9,300,000
12/31/96 $10,250,000
3/31/97 $10,250,000
6/30/97 $ 2,600,000
9/30/97 $ 2,300,000
12/31/97 $ 3,300,000
3/31/98 $ 3,300,000
6/30/98 $ 3,750,000
9/30/98 $ 3,750,000
12/31/98 (and thereafter) $ 4,000,000
7.2 Foothill hereby waives the existing violations of the
covenants contained in Sections 6.13(b) and 6.13(c) for the third and fourth
fiscal quarters of 1997. This waiver is limited to its particular circumstances
and shall not constitute a waiver of any other provision of the Loan Agreement
or a future waiver of Section 6.13(b), Section 6.13(c) or any other provision
of the Loan Agreement.
8. Effectiveness of this Amendment. Foothill must have received
the following items, in form and content acceptable to Foothill, before this
Amendment is effective and before Foothill is required to extend any credit to
Borrower as provided for by this Amendment. The date on which all of the
following conditions have been satisfied is the "Closing Date".
(a) Amendment. This Amendment fully executed in a
sufficient number of counterparts for distribution to Foothill and
Borrower.
(b) Authorizations. Evidence that the execution, delivery
and performance by Borrower and each guarantor or subordinating
creditor of this Amendment and any instrument or agreement required
under this Amendment have been duly authorized.
(c) Representations and Warranties. The Representations and
Warranties set forth in the Loan Agreement and this Amendment must be
true and correct.
(d) Consent. The Consent appended hereto (the "Consent")
executed by each of the Guarantors.
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(e) Other Required Documentation. All other documents and
legal matters in connection with the transactions contemplated by this
Agreement shall have been delivered or executed or recorded and shall
be in form and substance satisfactory to Foothill.
9. Choice of Law. The validity of this Amendment, its
construction, interpretation and enforcement, the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the internal laws of the State of California governing contracts only to
be performed in that State.
10. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument.
11. Due Execution. The execution, delivery and performance of this
Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding
on Borrower.
12. Effect of Amendment. Except as set forth expressly herein, all
terms of the Loan Agreement and the other Loan Documents shall be and remain in
full force and effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrower to Foothill. To the extent that any terms
and conditions in any of the Loan Documents shall contradict or be in conflict
with any terms or conditions of the Loan Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified and amended
accordingly to reflect the terms and conditions of the Loan Agreement as
modified and amended hereby.
13. Ratification. Borrower hereby restates, ratifies and reaffirms
each and every term and condition set forth in the Loan Agreement, as amended
hereby, and the Loan Documents effective as of the date hereof.
14. Estoppel. To induce Foothill to enter this Amendment and to
continue to make advances to Borrower under the Loan Agreement, Borrower hereby
acknowledges and agrees that, after giving effect to this Amendment, as of the
date hereof, there exists no Event of Default and no right of offset, defense,
counterclaim or objection in favor of Borrower as against Foothill with respect
to the Obligations.
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