EXHIBIT 10.4
FOURTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (this
"Amendment"), dated as of April 28, 2000, is made by and between GROW BIZ
INTERNATIONAL, INC. and GROW BIZ GAMES, INC., each a Minnesota corporation (each
a "Borrower" and collectively the "Borrowers"), and TCF NATIONAL BANK, a
national banking association formerly known as TCF National Bank Minnesota (the
"Bank").
RECITALS
The Borrowers and the Bank have entered into an Amended and Restated
Credit Agreement dated as of October 14, 1998, as amended by a letter agreement
amendment dated as of July 29, 1999, a Second Amendment to Amended and Restated
Credit Agreement dated as of August 31, 1999 and a Third Amendment to Amended
and Restated Credit Agreement (the "Third Amendment") effective as of December
25, 1999 (as so amended, the "Credit Agreement").
The Borrowers are currently in default of various financial
covenants under the Credit Agreement and have requested that such defaults be
waived by the Bank and that the maturity of the Credit Agreement be extended.
The Bank has agreed to waive such defaults and extend the maturity to July 31,
2000, provided that certain amendments are made to the Credit Agreement and
certain conditions are satisfied, as set forth herein. In addition, the
Borrowers have requested the consent of the Bank to the sale of one of the
Borrowers' stores, which consent the Bank has agreed to provide on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment which are defined in
the Credit Agreement shall have the same meanings as defined therein, unless
otherwise defined herein. In addition, the Glossary of Terms appearing as the
Appendix to the Credit Agreement is amended by adding or amending, as the case
may be, the following definitions:
"'Borrowing Base' means, at any time, an amount equal to:
(a) eighty-five percent (85%) of the Eligible Buying Group Accounts,
computed on the basis of the most recent Borrowing Base Certificate; plus
(b) thirty percent (30%) of the Eligible Royalty Accounts, computed
on the basis of the most recent Borrowing Base Certificate furnished to
the Bank; plus
(c) fifty percent (50%) of Eligible Inventory, computed on the basis
of the most recent Borrowing Base Certificate furnished to the Bank; plus
(d) $2,640,000, representing seventy-five percent (75%) of the
appraised fair market value of the real property subject to that certain
Combination Mortgage, Security Agreement and Fixture Financing Statement
dated as of December 30, 1999 by International in favor of the Bank."
"'Fourth Amendment' means that certain Fourth Amendment to Amended
and Restated Credit Agreement dated as of April 28, 2000."
"'Maximum Line' means $7,500,000."
"'Revolving Loan Maturity Date' means July 31, 2000."
2. The Revolving Loan. Section 3.2(a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"General Terms and Conditions. The Bank agrees, on the terms and
conditions herein set forth, to make Revolving Advances to the Borrowers
from time to time from the date hereof to and including July 31, 2000, or
the earlier termination of the Commitment to make Revolving Advances
pursuant to Section 9.2 hereof, in an aggregate amount not to exceed at
any time outstanding the lesser of (i) the Revolving Commitment Amount or
(ii) the Borrowing Base. The minimum amount of each Revolving Advance
shall be $50,000. Within the above limits, the Borrowers may borrow,
prepay and reborrow Revolving Advances under this Section 3.2(a). From and
after the date of the first Revolving Advance, accrued interest on the
Revolving Note shall be due and payable monthly, commencing on the tenth
(10th) day of the month following the date of the first Revolving Advance,
and on the same day of each month thereafter until payment in full of the
Revolving Note. On the Revolving Loan Maturity Date the remaining unpaid
principal balance of the Revolving Advances and all accrued and unpaid
interest shall be due and payable."
3. Normal Rate of Interest on Revolving Note. Section 3.2(d) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(d) Normal Rate of Interest. The principal balance of the Revolving
Note outstanding from time to time shall bear interest from the date
hereof until paid in full at an annual rate which shall at all times be
equal to the Base Rate plus one percent (1.00%), which annual rate shall
change when and as the Base Rate changes; subject, however, to imposition
of the Default Rate pursuant to Section 4.5."
4. Term Loan B. Section 3.3(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(a) General Terms and Conditions. The Bank made Term Loan B
Advances to the Borrowers during the period from October 14, 1998 to and
including March 31,
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1999, on which date the aggregate unpaid principal amount of the Term Loan
B Advances was $8,000,000. The Bank has no obligation to make any
additional Term Loan B Advances. The Term Loan B Advances shall be
repayable in monthly installments of principal and interest, which such
payments began on April 1, 1999. On May 10, 2000, June 10, 2000 and July
10, 2000, accrued interest for the previous month shall be due and
payable, together, each such month, with a principal payment in the amount
of $150,000. On July 31, 2000 (the 'Term Loan B Maturity Date'), the
remaining principal balance of the Term Loan B Advances together with all
accrued and unpaid interest thereon shall be due and payable. Such monthly
payment amount may change as the interest rate changes due to any
implementation of the Default Rate. As of April 28, 2000, the outstanding
principal balance of the Term Loan B Advances was $6,500,000."
5. Existing Term Loan. Section 3.4(a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(a) General Terms and Conditions. On August 8, 1997, the Bank made
a single advance term loan to International in the amount of $4,500,000
(the "Existing Term Loan Advance"). The Existing Term Loan shall be repaid
by the Borrowers in equal principal payments of $75,000 per month, which
such payments began on October 10, 1997, and shall continue until July 31,
2000 (the 'Existing Term Loan Maturity Date'), at which time a final
payment of the remaining unpaid principal balance and all accrued and
unpaid interest thereon shall be made. Interest on the Existing Term Loan
Advance shall be payable monthly on the tenth (10th) day of the next
succeeding month and at maturity or earlier prepayment in full. As of
April 28, 2000, the outstanding principal balance of the Existing Term
Loan Advance was $2,175,000."
6. Capital Base. Section 7.10 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Section 7.10 Capital Base. For each period described below,
International will maintain at all times, on a consolidated basis, its
Capital Base in an amount not less than:
Period Capital Base
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3/1/00 through 3/31/00 $800,000
4/1/00 through 4/30/00 $800,000
5/1/00 through 5/31/00 $950,000
6/1/00 through 6/30/00 $1,100,000
7/1/00 through 7/31/00 $1,100,000"
7. Total Liabilities to Capital Base Ratio. Section 7.11 of the Credit Agreement
is hereby deleted and replaced with the following:
"Section 7.11 - RESERVED."
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All references to "Section 7.11" elsewhere in the Credit Agreement are
accordingly hereby deleted.
8. Minimum Debt Service Coverage Ratio. Section 7.12 of the Credit Agreement is
hereby deleted and replaced with the following:
"Section 7.12 - RESERVED."
All references to "Section 7.12" elsewhere in the Credit Agreement are
accordingly hereby deleted.
9. Minimum EBIT. Section 7.13 of the Credit Agreement is hereby deleted and
replaced with the following:
"Section 7.13 - RESERVED."
All references to "Section 7.13" elsewhere in the Credit Agreement are
accordingly hereby deleted.
10. Application of Tax Refund to Obligations. Section 7.14 of the Credit
Agreement is hereby amended to read as follows:
"Section 7.14 Application of Tax Refund. The Borrowers hereby acknowledge
and agree that any and all tax refunds to be received by either of them
are subject to the Bank's first prior security interest therein and
further agree to deliver to the Bank, properly endorsed, any check and
direct to the Bank any wire transfer, in each case, for application to the
Obligations, with respect to any tax refund or other payment made by a
taxing authority (federal, state or otherwise) to or for the benefit of
either of the Borrowers, and to take such other steps as the Bank shall
request regarding any such tax refund or other payment in order to give
effect to this Section 7.14. Notwithstanding Section 4.3 or any other
provision of this Agreement, any and all such tax refunds shall be
applied: first to payment or prepayment of all monthly principal
installments due or to become due on the Term Loan B Advances and the
Existing Term Loan Advances pursuant to Section 3.3(a) and Section 3.4(a),
respectively; second to prepayment of the remainder of the Term Loan B
Advances and the Existing Term Loan Advances in such order as the Bank may
determine in its sole discretion until the Term Loan B Advances and the
Existing Term Loan Advances have been fully repaid; and third to payment
of the other Obligations in such order as the Bank may determine in its
sole discretion. The Bank waives any prior notice requirement under
Section 3.2(f), Section 3.3(f) and Section 3.4(d) for prepayments made
from tax refunds under this Section."
11. Waiver of Defaults. The Borrowers are in default of the financial covenants
set forth in Sections 7.10, 7.11, 7.12 and 7.13 of the Credit Agreement for
periods through March 31,
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2000 (collectively, the "Defaults"). Upon the terms and subject to the
conditions set forth in this Amendment, the Bank hereby waives the Defaults.
This waiver shall be effective only in this specific instance and for the
specific purpose for which it is given, and this waiver shall not entitle either
Borrower to any other or further waiver in any similar or other circumstances.
12. Consent to Sale of Hennepin Avenue Store. The Borrowers have
negotiated a sale of their store located at 0000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and certain personal property located at that
store, on terms previously disclosed to the Bank. Such sale would violate
Section 8.9 of the Credit Agreement which, among other things, prohibits either
Borrower from selling a substantial part of its assets to any Person other than
in the ordinary course of business, and Section 3(a) of the Security Agreement
dated as of October 14, 1998 between the Borrowers and the Bank (the "Security
Agreement"), which, among other things, prohibits either Borrower from selling
or otherwise disposing of any Collateral (as defined in the Security Agreement).
The Borrowers have requested that the Bank consent to this transaction.
The Bank hereby consents to this certain transaction upon the terms and
subject to the conditions set forth in this Amendment. The Borrowers acknowledge
that the proceeds of the above-referenced sale shall constitute proceeds of
Collateral (as defined in the Security Agreement). As a requirement of this
consent, the Borrowers shall cause such sale proceeds to be delivered directly
to the Bank for application to the Obligations in the same manner as set forth
for application of tax refunds under Section 7.14 of the Credit Agreement (as
amended by this Amendment). This consent shall be effective only in this
specific instance and for the specific purpose for which it is given, and this
consent shall not entitle the Borrowers to any other or further consent in any
similar or other circumstances.
13. No Other Changes. Except as explicitly amended by this Amendment, all of the
terms and conditions of the Credit Agreement shall remain in full force and
effect and shall apply to any advance or letter of credit thereunder.
14. Representations and Warranties. The Borrowers hereby represent and warrant
to the Bank as follows:
(a) The Borrowers have all requisite power and authority to execute
this Amendment and to perform all of their obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrowers and
constitutes the legal, valid and binding obligation of the Borrowers,
enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrowers of this
Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
presently in effect, having applicability to the Borrowers or the articles
of incorporation
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or by-laws of the Borrowers, or (iii) result in a breach of or constitute
a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which either Borrower is a party or by
which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article
VI of the Credit Agreement are true and correct on and as of the date
hereof as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.
15. Conditions Precedent. This Amendment, the waiver set forth in Section 11
hereof, and the consent set forth in Section 12 hereof, shall be effective when
the Bank shall have received a fully executed original hereof, together with
each of the following, each in substance and form acceptable to the Bank in its
sole discretion:
(a) A certificate of authority of each of the Borrowers certifying
as to (i) the resolutions of the board of directors of such Borrower
approving the execution and delivery of this Amendment, as well as the
Third Amendment, the mortgage, the trademark security agreement, and
certain other documents required under Section 5.3 of the Credit
Agreement, (ii) the fact that the articles of incorporation and bylaws of
such Borrower, which were certified to the Bank pursuant to the
certificate of authority of such Borrower's secretary or assistant
secretary in connection with the execution and delivery of the Credit
Agreement continue in full force and effect and have not been amended or
otherwise modified except as set forth in the certificate to be delivered,
and (iii) certifying that the officers and agents of such Borrower who
have been certified to the Bank, pursuant to the certificate of authority
of such Borrower's secretary or assistant secretary dated as of October
14, 1998 (as modified by a Supplemental Secretary's Certificate dated as
of July 29, 1999) as being authorized to sign and to act on behalf of such
Borrower continue to be so authorized or setting forth the sample
signatures of each of the officers and agents of such Borrower authorized
to execute and deliver this Amendment and all other documents, agreements
and certificates on behalf of such Borrower.
(b) Such other items as the Bank may, in its discretion, require.
16. References. All references in the Credit Agreement to "this Agreement" shall
be deemed to refer to the Credit Agreement as amended hereby; and any and all
references in the Security Documents to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended hereby.
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17. No Other Waiver. Except as set forth in Section 11 of this Amendment, above,
the execution of this Amendment shall not be deemed to be a waiver of any
Default or Event of Default under the Credit Agreement or breach, default or
event of default under any Security Document or other document held by the Bank,
whether or not known to the Bank and whether or not existing on the date of this
Amendment.
18. Release. Each Borrower hereby absolutely and unconditionally releases and
forever discharges the Bank, and any and all participants, parent corporations,
subsidiary corporations, affiliated corporations, insurers, indemnities,
successors and assigns thereof, together with all of the present and former
directors, officers, agents and employees of any of the foregoing, from any and
all claims, demands or causes of action of any kind, nature or description,
whether arising in law or equity or upon contract or tort or under any state or
federal law or otherwise, which such Borrower has had, now has or has made claim
to have against any such person for or by reason of any act, omission, matter,
cause or thing whatsoever arising from the beginning of time to and including
the date of this Amendment, whether such claims, demands and causes of action
are matured or unmatured or known or unknown.
19. Costs and Expenses. Each Borrower hereby reaffirms its agreement under the
Credit Agreement to pay or reimburse the Bank on demand for all costs and
expenses incurred by the Bank in connection with the Credit Agreement, the
Security Documents and all other documents contemplated thereby, including
without limitation all reasonable fees and disbursements of legal counsel.
Without limiting the generality of the foregoing, each Borrower specifically
agrees to pay all fees and disbursements of counsel to the Bank for the services
performed by such counsel in connection with the preparation of this Amendment
and the documents and instruments incidental hereto. Each Borrower hereby agrees
that the Bank may, at any time or from time to time in its sole discretion and
without further authorization by either Borrower, make a loan to the Borrowers
under the Credit Agreement, or apply the proceeds of any loan, for the purpose
of paying any such fees, disbursements, costs and expenses.
20. Miscellaneous. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and all
of which counterparts, taken together, shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
GROW BIZ INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
Its Vice President of Finance and Chief
Financial Officer
GROW BIZ GAMES, INC.
By /s/ Xxxxx X. Xxxxxx, Xx.
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Xxxxx X. Xxxxxx, Xx.
Its Vice President of Finance and Chief
Financial Officer
TCF NATIONAL BANK
By
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Its
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By
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Its
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[SIGNATURE PAGE TO FOURTH AMENDMENT TO
CREDIT AGREEMENT]
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