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EXHIBIT 10.1
AMENDMENT NUMBER ONE TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Amendment Number One to Amended and Restated Loan and Security
Agreement ("Amendment") is entered into as of October 28, 1999, by and between
FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), and
CELEBRITY, INC., a Texas corporation, THE XXXXXX CORPORATION, a California
corporation, INDIA EXOTICS, INC., a Texas corporation, VALUE FLORIST SUPPLIES,
INC., a Texas corporation and STAR WHOLESALE FLORIST, INC., a Texas corporation
(collectively "Borrowers"), in light of the following:
FACT ONE: Borrowers and Foothill have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of July 15, 1999 (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.
(a) Section 1.1 of the Agreement is hereby amended by adding the
following definitions:
"Bridge Advances" means that part of the Borrowing Base set
forth in Section 2.1(a)(v).
"Bridge Limit" means $1,500,000.
"Bridge Period" means the period beginning on October 28, 1999
through and including January 28, 2000.
(b) The definition of "Guaranty" contained in Section 1.1 of the
Agreement is hereby amended in its entirety to read as follows:
"Guaranty" means both that certain Continuing Guaranty dated
as of January 30, 1998, by Magicsilk in favor of Foothill and that
certain Continuing Guaranty dated as of October 28, 1999, by RHP
Management, LLC, a Texas limited liability company in favor of
Foothill.
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(c) Section 2.1(a) of the Agreement is hereby amended by adding
the following subsection (v) before subsection (w):
"(v) up to the Bridge Limit; provided however, that
Advances will only be made under this clause (v) during the Bridge
Period, plus"
(d) Section 2.6(a) of the Agreement is hereby amended in its
entirety to read as follows:
"(a) Interest Rate. Except as provided in clause (c)
below, (i) all Obligations (except for undrawn Letters of Credit, the
Seasonal Borrowing Facility, and the Bridge Advances) shall bear
interest on the Daily Balance at a per annum rate equal to the
Applicable Margin plus the Reference Rate, (ii) the Seasonal Borrowing
Facility Advances shall bear interest at a per annum rate of 1.00%
above the Reference Rate, and (iii) the Bridge Advances shall bear
interest at a per annum rate of 12.5%."
(e) Section 2.6(c) of the Agreement is hereby amended in its
entirety to read as follows:
"(c) Default Rate. Upon the occurrence and during the
continuation of an Event of Default, (i) all Obligations (except for
undrawn Letters of Credit and Bridge Advances) shall bear interest on
the Daily Balance at a per annum rate equal to 4.5 percentage points
above the Reference Rate, (ii) the Letter of Credit fee provided in
Section 2.6(b) shall be increased to 4.5% per annum times the aggregate
undrawn amount of all Letters of Credit outstanding as of the end of
each day, and (iii) the Bridge Advances shall bear interest on the
Daily Balance at a per annum rate equal to 15.5%."
3. REPRESENTATIONS AND WARRANTIES. Borrowers hereby affirm to
Foothill that all of Borrowers' representations and warranties set forth in the
Agreement are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrowers hereby affirm 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 following:
(a) Payment by Borrowers to Foothill of an
amendment fee in the aggregate amount of $25,000, such fee to be charged to
Borrowers' loan account pursuant to Section 2.6(e) of the Agreement;
(b) Receipt by Foothill of an executed copy of
this Amendment;
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(c) Receipt by Foothill of a Continuing Guaranty (the "Guaranty"),
duly executed by RHP MANAGEMENT, LLC ("RHP") in favor of Foothill;
(d) Receipt by Foothill of a letter of credit in favor of Foothill
as beneficiary in the face amount of $375,000, in form acceptable to Foothill in
its sole discretion, issued by a financial institution acceptable to Foothill in
its sole discretion;
(e) Receipt by Foothill of (i) a duly executed Assistant
Secretary's Certificate of RHP and (ii) Certified Resolutions of RHP authorizing
the arrangement of the RHP Letter of Credit and the delivery of the Guaranty to
Foothill; and
(f) Receipt by foothill of an opinion letter, in form and
substance acceptable to Foothill, from Borrowers' counsel.
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.
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.
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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/ XXXXX X. XXXXX
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Title: Senior Vice President
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CELEBRITY, INC.,
a Texas corporation
By: /s/ XXXX XXXXXXX
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Title: VP
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THE XXXXXX CORPORATION,
a California corporation
By: /s/ XXXX XXXXXXX
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Title: VP
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INDIA EXOTICS, INC.,
a Texas corporation
By /s/ XXXX XXXXXXX
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Title: VP
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VALUE FLORIST, INC.,
a Texas corporation
By: /s/ XXXX XXXXXXX
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Title: VP
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STAR WHOLESALE FLORIST, INC.,
a Texas corporation
By: /s/ XXXX XXXXXXX
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Title: VP
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REAFFIRMATION OF GUARANTY
The undersigned has executed a Continuing Guaranty (the "Guaranty") in
favor of Foothill Capital Corporation, a California corporation ("Foothill")
respecting the obligations of Celebrity, Inc., a Texas corporation
("Celebrity"), The Xxxxxx Corporation, a California corporation ("Xxxxxx"), Star
Wholesale Florist, Inc. a Texas corporation ("Star"), Value Florist Supplies,
Inc., a Texas corporation ("Value"), and India Exotics, Inc., a Texas
corporation ("India") (Celebrity, Xxxxxx, Star, Value and India are each a
"Borrower" and collectively the "Borrowers") owing to Foothill. The undersigned
acknowledges the terms of the Amendment Number One to Amended and Restated Loan
and Security Agreement, dated as of October 28, 1999, and reaffirms and agrees
that (a) its Guaranty remains in full force and effect, (b) nothing in such
Guaranty obligates Foothill to notify the undersigned of any changes in the
financial accommodations made available to Borrowers or to seek reaffirmations
of the Guaranty, and (c) no requirement to so notify the undersigned or to seek
reaffirmations in the future shall be implied by the execution of the
reaffirmation.
Dated: October 28, 1999
MAGICSILK, INC.,
a Texas corporation
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: VP
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