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EXHIBIT 10.11
AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT
This Amendment Number Two to Loan and Security Agreement ("Amendment")
is entered into as of July 7, 1998, by and between FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), and CELEBRITY, INC., a
Texas corporation, and certain of its subsidiaries (collectively, the
"Borrowers"), in light of the following:
FACT ONE: Borrowers and Foothill have previously entered into that
certain Loan and Security Agreement, dated as of January 30, 1998 as amended by
Amendment Number One to Loan and Security Agreement, dated as of June 5, 1998
(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.
2.1 Section 1.1 of the Agreement is hereby amended by adding
the following new definitions thereto:
"Bridge Advances" means Advances made pursuant to
Section 2.1(a)(w).
"Bridge Limit" means the following amounts during the
following periods:
Period Bridge Limit
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July 7, 1998 through October 10, 1998 $1,000,000
October 11, 1998 through October 17, 1998 $ 750,000
October 18, 1998 through October 24, 1998 $ 500,000
October 25, 1998 through October 31, 1998 $ 250,000
November 1, 1998 and thereafter $ 0 ;
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provided, however, that on the consummation of the Permitted
Sale/Leaseback, irrespective of whether that occurs prior to November
1, 1998, the Bridge Limit shall be $0.
"Bridge Period" means the period of time commencing on June
15, 1998 and ending on the earlier to occur of (a) October 31, 1998,
and (b) the consummation of the Permitted Sale/Leaseback.
"Color Concepts Inventory" means any Inventory of Exotics
that was purchased by Celebrity pursuant to the Color Concepts
Purchase, and any Inventory of the "Color Concepts" division of
Celebrity purchased subsequent to the Color Concepts Purchase that is
of the same type as that purchased by Exotics prior to the Color
Concepts Purchase and that is stored and reported separately from all
other Inventory of Celebrity.
"Color Concepts Purchase" means the purchase by Celebrity of
substantially all of the Equipment and Inventory of Exotics, at book
value and on other terms and conditions disclosed in advance and
reasonably acceptable to Foothill.
"RHP" means RHP Management, LLC, a Texas limited liability
company.
"RHP Loan" means that certain $500,000 loan by RHP to
Celebrity, dated on or about December 10, 1997 and evidenced by a
Promissory Note, Amended and Restated as of such date.
"RHP Senior Loan" means that certain $500,000 loan by RHP to
Celebrity, dated on or about July 7, 1998 and evidenced by a
Promissory Note as of such date.
2.2 The definition of "Excess Availability" is hereby amended
to read as follows:
"Excess Availability" means the amount, as determined by
Foothill at any time, equal to: (a) (i) the amount of the Advances
available to Borrowers as of such time based upon the applicable
lending formulas set forth in Section 2.1 (exclusive of clause (w)
thereof), subject to the sublimits and reserves from time to time
established in accordance with Sections 2.1(b), 6.15 and 10, minus (b)
the sum of (i) the amount of the outstanding Obligations (including
Letters of Credit), plus (ii) the aggregate amount of trade payables
payable by Borrowers that are more than 90 days from invoice date.
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2.3 The definition of "Subordination Agreement" is hereby
amended to read as follows:
"Subordination Agreement" means that certain Amended and
Restated Subordination Agreement, dated on or about July 7, 1998
between Foothill and RHP.
2.4 Section 2.1(a) of the Agreement is hereby amended to
read as follows:
(a) Subject to the terms and conditions of this Agreement,
Foothill agrees to make advances ("Advances") to Borrowers in an
amount outstanding not to exceed at any one time the lesser of (i) the
Maximum Revolving Amount less the outstanding balance of all undrawn
or unreimbursed Letters of Credit, or (ii) the Borrowing Base less (A)
the aggregate amount of all undrawn or unreimbursed Letters of Credit
(other than Inventory Letters of Credit), less (B) 35% of the
aggregate amount of all undrawn or unreimbursed Inventory Letters of
Credit issued respecting Inventory of Celebrity (other than the Color
Concepts Inventory), Florist Supplies, or Star, and less (C) 50% of
the aggregate amount of all undrawn and unreimbursed Inventory Letters
of Credit issued respecting Inventory of Xxxxxx, and less (D) 70% of
the aggregate amount of all undrawn or unreimbursed Inventory Letters
of Credit issued respecting Inventory of Exotics or Color Concepts
Inventory. For purposes of this Agreement, "Borrowing Base", as of any
date of determination, shall mean the result of:
(w) the Bridge Limit (during the Bridge Period only), plus
(x) the lesser of (i) (1) 50% of the value of the
MJDesigns Account (so long as it remains an Eligible Account) plus (2)
85% of all other Eligible Accounts, less (3) the amount, if any, of
the Dilution Reserve, and (ii) an amount equal to Borrowers'
Collections with respect to Accounts for the immediately preceding 90
day period, plus
(y) the least of (i) 1.50 times the credit availability
created by clause (x) above, (ii) $17,500,000, and (iii) 65% of the
Value of Eligible Inventory of Celebrity (other than the Color
Concepts Inventory), Florist Supplies, and Star plus 50% of the Value
of Eligible Inventory of Xxxxxx plus 30% of the Value of Eligible
Inventory of Exotics and the Color Concepts Inventory (but in no event
shall Advances against Eligible In-Transit Inventory of Borrowers
exceed, in the aggregate at any one time, $2,500,000, and in no event
shall the aggregate Advances against Eligible Inventory of Borrowers,
plus the outstanding principal balance of the Term Loan, exceed, at
any one time, the lower of: (1) the applicable OLV Multiplier times
the OLV of Borrowers' Inventory or (2) the applicable
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Value Multiplier times the Value of Borrowers' Inventory) minus the
amount of the Inventory Reserve (if any), minus
(z) the aggregate amount of reserves, if any, established
by Foothill under Sections 2.1(b), 6.15 and 10.
2.5 Section 2.2(a)(i) of the Agreement is hereby amended to
read as follows:
(i) the sum of 35% of the aggregate amount of all undrawn
and unreimbursed Inventory Letters of Credit issued respecting
Inventory of Celebrity (other than the Color Concepts Inventory),
Florist Supplies, or Star, plus 50% of the aggregate amount of all
undrawn and unreimbursed Inventory Letters of Credit issued respecting
Inventory of Xxxxxx, plus 70% of the aggregate amount of all undrawn
and unreimbursed Inventory Letters of Credit issued respecting
Inventory of Exotics and the Color Concepts Inventory, plus 100% of
the aggregate amount of all other types of undrawn and unreimbursed
Letters of Credit, would exceed the Borrowing Base less the amount of
outstanding Advances; or
2.6 Sections 2.6(a) and 2.6(c) of the Agreement are hereby
amended to read as follows:
(a) Interest Rate. Except as provided in clause (c) below,
(i) all Obligations (except for undrawn Letters of Credit, Bridge
Advances, and the Term Loan) shall bear interest on the Daily Balance
at a per annum rate of 1.50 percentage points above the Reference
Rate, and (ii) Bridge Advances and the Term Loan shall bear interest
at a per annum rate of 12.5%.
. . .
(c) Default Rate. Upon the occurrence and during the
continuation of an Event of Default, (i) all Obligations (except for
undrawn Letters of Credit, Bridge Advances, and the Term Loan) shall
bear interest on the Daily Balance at a per annum rate equal to 4.50
percentage points above the Reference Rate, and (ii) Bridge Advances
and the Term Loan shall bear interest at a per annum rate equal to
15.5%, and (iii) the Letter of Credit fee provided in Section 2.6(b)
shall be increased to 4.50% per annum times the aggregate undrawn
amount of all Letters of Credit outstanding as of the end of each day.
2.7 Section 7.1(e) of the Agreement is hereby amended to
read as follows:
(e) the RHP Loan and the RHP Senior Loan;
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2.8 Section 7.8(a) of the Agreement is hereby amended in its
entirety to read as follows:
(a) Prepay, redeem, retire, defease, purchase, or otherwise
acquire any Indebtedness owing to any Person, except (i) payments of
the Obligations in accordance with this Agreement, (ii) in connection
with a refinancing permitted by Section 7.1(f); (iii) prepayments of
the Senior Real Estate Loan from a Permitted Sale/Leaseback; (iv) in
connection with Permitted Equipment Dispositions; and, (v) upon prior
notice to Foothill specifying such contemplated payment, and so long
as no Event of Default has occurred and is continuing (or would arise
from the making of such payment), repayments of the RHP Senior Loan
and the RHP Loan, pursuant to the terms of the Subordination
Agreement, and
2.9 Section 8.13 of the Agreement is hereby amended to read
as follows:
8.13 If the obligation of any guarantor under its guaranty,
of RHP under the Subordination Agreement, or of any other third Person
under any Loan Document is breached, limited or terminated by
operation of law or by the guarantor, the subordinating creditor, or
such other third Person thereunder, or any such guarantor, such
subordinating creditor or other third Person becomes the subject of an
Insolvency Proceeding.
3. COLOR CONCEPTS PURCHASE. Notwithstanding anything contained in the
Agreement to the contrary, Foothill hereby consents to the Color Concepts
Purchase, provided that all material terms thereof are disclosed in writing to
Foothill and are reasonably acceptable to Foothill, as confirmed by Foothill in
writing, prior to the consummation of such transaction.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby affirms to
Foothill that all of such Borrower's representations and warranties set forth
in the Agreement are true, complete and accurate in all respects as of the date
hereof.
5. NO DEFAULTS. Each Borrower hereby affirms to Foothill that no Event
of Default has occurred and is continuing as of the date hereof.
6. CONDITION PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the receipt by Foothill of:
(a) an executed copy of this Amendment;
(b) an availability forecast through September 30, 1998,
satisfactory to Foothill;
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(c) a release, fully executed by the Borrowers and RHP,
satisfactory to Foothill;
(d) a fully executed Subordination Agreement;
(e) a copy of the promissory note evidencing the RHP Senior
Loan bearing the legend thereon required by the Subordination Agreement and
evidence that the RHP Senior Loan has been fully funded; and
(f) a fully executed copy of Borrowers' engagement letter
with American Corporate Real Estate, Inc., or a similar firm acceptable to
Foothill, pursuant to which Borrowers have engaged such firm to conduct the
Permitted Sale/Leaseback, which letter is satisfactory to Foothill.
7. 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.
8. 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.
9. 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
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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/ XXXXXX X. XXXXXX
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Title: Vice President
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CELEBRITY, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Title: Chairman
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THE XXXXXX CORPORATION,
a California corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Title: Chairman
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STAR WHOLESALE FLORIST, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Title: President
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INDIA EXOTICS, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Title: Chairman
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VALUE FLORIST SUPPLIES, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Title: President
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The undersigned has executed a Continuing Guaranty in favor of
Foothill Capital Corporation ("Foothill") respecting the obligations of the
above-referenced Borrowers owing to Foothill. The undersigned acknowledges the
terms of the above Amendment and reaffirms and agrees that: its Continuing
Guaranty remains in full force and effect; nothing in such Continuing Guaranty
obligates Foothill to notify the undersigned of any changes in the financial
accommodations made available to the Borrowers or to seek reaffirmations of the
Continuing Guaranty; and no requirement to so notify the undersigned or to seek
reaffirmations in the future shall be implied by the execution of this
reaffirmation.
MAGICSILK, INC.,
a Texas corporation
By: /s/ XXXXXX X. XXXXXXXXX XX.
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Name: Xxxxxx X. Xxxxxxxxx Xx.
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Title: Chairman
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