EXHIBIT 10.19
SIXTH AMENDMENT OF LOAN AGREEMENT
THIS SIXTH AMENDMENT OF LOAN AGREEMENT ("Amendment") is made and
entered into effective as of April 8, 2000, by and between SURREY, INC.,
("Borrower"), a Texas corporation, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
("Lender"), a national banking association.
RECITALS:
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On or about April 8, 1998, Borrower and Lender entered into a Loan
Agreement providing for loans to be made to the Borrower for the purposes
provided for therein. Such Loan Agreement has previously been amended pursuant
to a First Amendment of Loan Agreement dated effective May 14, 1998, by a Second
Amendment of Loan Agreement dated effective January 25, 1999, by a Third
Amendment of Loan Agreement dated effective March 31, 1999, by a Fourth
Amendment of Loan Agreement dated effective June 17, 1999, and by a Fifth
Amendment of Loan Agreement dated effective June 30, 1999. Such Loan Agreement,
as amended, is herein called the "Original Agreement".
The Borrower and the Lender now desire to further amend the Original
Agreement in certain respects as hereinafter provided, all as more particularly
set forth herein.
AGREEMENTS:
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For and in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
(1) The following new definitions of "Eligible Raw Materials
Inventory", "Term Loan" and "Term Note" are hereby added to the definitions
contained in Paragraph 1 of the Original Agreement:
Eligible Raw Materials Inventory shall mean all of Borrower's
raw materials Inventory which is in good and merchantable condition, is
not obsolete or discontinued, and which would properly be classified as
"raw materials" under GAAP, excluding (a) any such Inventory which is
work in process, finished goods or miscellaneous supplies such as hand
tools and packaging materials, (b) any such Inventory which is covered
by or subject to a seller's right to repurchase, or any consensual or
nonconsensual Lien (including, without limitation, purchase money
security interests) other than in favor of Lender, whether senior or
junior to Lender's security interest and Liens and (c) any such
Inventory that Lender, acting in its sole discretion, excludes as
Eligible Raw Materials Inventory. Inventory which is at any time
Eligible Raw Materials Inventory, but which subsequently fails to meet
any of the foregoing requirements, shall forthwith cease to be Eligible
Raw Materials Inventory. Eligible Raw Materials Inventory shall be
valued at the lesser of cost or market value in accordance with GAAP.
Term Loan shall mean the Loan described in Paragraph 3.A.
hereof.
Term Note shall mean the promissory note of Borrower described
in Paragraph 3.A. hereof, and any and all renewals, extensions,
modifications, rearrangements and replacements thereof and any and all
substitutions therefor.
(2) The following definitions of "Borrowing Base", "Maturity Date",
"Note" and "Revolving Commitment" currently contained in Paragraph 1 of the
Original Agreement are hereby amended and restated to hereafter be and read as
follows:
Borrowing Base shall mean, as at any date, the amount of the
Borrowing Base shown on the Borrowing Base Certificate then most
recently delivered pursuant to Paragraph 10(b) hereof, determined by
the following calculation:
80% of the Eligible Accounts of Borrower at said date which
are owed by account debtors, plus
if said date is on any date between April 1, 2000 and July 31,
2000 or any date between January 1, 2001 and May 8, 2001, the
lesser of (A) 50% of the Eligible Raw Materials Inventory of
Borrower as of said date and (B) $1,200,000.00.
Notwithstanding anything to the contrary set forth in the immediately
preceding sentence, Lender reserves the right to adjust downward to a
level acceptable to Lender in its sole discretion the eighty percent
(80%) advance rate set forth above if Borrower's average dilution
percentage for all Accounts exceeds five percent (5%). In the absence
of a current Borrowing Base Certificate, Lender shall determine the
Borrowing Base from time to time in its discretion, taking into account
all information available to it, and the Borrowing Base from time to
time so determined shall be the Borrowing Base for all purposes of this
Agreement until a current Borrowing Base Certificate, in Proper Form,
is furnished to and accepted by Lender.
Maturity Date shall mean the maturity of the Revolving Note,
which is currently May 8, 2001, as the same may hereafter be
accelerated pursuant to the provisions of any of the Credit Documents.
Note shall mean the Revolving Note, the Advance/Term Note and
the Term Note, together with any and all renewals, extensions,
modifications, rearrangements and/or replacements of any thereof.
Revolving Commitment shall mean the obligation of Lender under
this Agreement to make Revolving Loans and incur Letter of Credit
Liabilities in an aggregate principal amount at any one time
outstanding up to (but not exceeding) $3,000,000.00.
(3) The fifth (5th) sentence of Paragraph 2(a) of the Original
Agreement is hereby amended and restated in its entirety to hereafter be and
read as follows:
"The Revolving Loans shall be evidenced by the Revolving Note
dated April 8, 2000 executed by Borrower, payable to the order of
Lender in the original principal amount of $3,000,000.00."
(4) There is hereby added four (4) new sentences at the end of
Paragraph 2(a) of the Original Agreement, which shall be and read as follows:
"Borrower shall pay to Lender a commitment fee for the period
from April 8, 2000 to and including the Termination Date at a rate per
annum equal to .25%, payable in arrears. Such commitment fees shall be
computed (on the basis of the actual number of days elapsed in a year
composed of 360 days) on each day and shall be based on the excess of
(x) the aggregate amount of the Revolving Commitment for such day over
(y) the sum of (i) the unpaid principal balance of the Revolving Note
on such day plus (ii) the aggregate Letter of Credit Liabilities for
such day. Accrued and unpaid commitment fees shall be payable on the
eighth (8th) day of each July, October, January, and April prior to the
Maturity Date and on the Maturity Date. All past due fees shall bear
interest at the Past Due Rate."
(5) Paragraph 2(e) of the Original Agreement, which was incorrectly
identified as Paragraph 2(c) in the Third Amendment of Loan Agreement described
in the "Recitals" section above, is hereby deleted. From and after the effective
date, Borrower will not be required to reduce the Revolving Note to a zero
balance at any time prior to the Maturity Date.
(6) Paragraph 3 of the Original Agreement is hereby amended and
restated in its entirety to hereafter be and read as follows:
"3. Advance/Term Loans. Prior to April 8, 2000, Lender has
made advances under the Advance/Term Note dated April 8, 1998 in the
face principal amount of $2,300,000.00, executed by the Borrower,
payable to the order of the Lender (the "$2,300,000.00 Advance/Term
Note"), and under the Advance/Term Loan dated January 25, 1999 in the
face principal amount of $400,000.00, executed by the Borrower, payable
to the order of the Lender (the "$400,000.00 Advance/Term Note"). No
amounts remain to be advanced under the $2,300,000.00 Advance/Term Note
or the $400,000.00 Advance/Term Note. The $2,300,000.00 Advance/Term
Note and the $400,000.00 Advance/Term Note are herein collectively
called the "Advance/Term Note". Both parties hereto agree that, except
to the extent overridden by the applicable Construction Loan Agreement,
the terms and conditions of this Agreement shall govern the
Advance/Term Loans until payment in full of the amounts outstanding
thereunder."
(7) There is hereby added a new Paragraph 3.A. to the Original
Agreement, which shall be and read as follows:
"3.A. Term Loan. Lender agrees, subject to all of the terms
and conditions of this Agreement (including Paragraph 8 hereof), on or
before April 28, 2000, to make the Term Loan to the Borrower in an
aggregate principal amount of no more than $1,000,000.00 which amount
shall be applied to the outstanding principal balance of the
Revolving Note on the date of such advance. The Term Loan shall be
evidenced by the Term Note dated effective April 8, 2000 executed by
Borrower, payable to the order of Lender, in the original principal
amount of $1,000,000.00. Amounts repaid under the Term Loan may not be
reborrowed."
(8) The Original Agreement is hereby amended to provide that from and
after April 8, 2000, Borrower shall no longer be entitled to have the Notes
accrue interest at the LIBOR Rate or otherwise be entitled to the benefits of
Paragraph 4 of the Original Agreement. Instead, from and after April 8, 2000,
the Notes shall accrue interest and be due and payable as provided in the Notes.
(9) Paragraph 10(b)(2) of the Original Agreement is hereby amended and
restated in its entirety to hereafter be and read as follows:
"(2) as soon as available and in any event within 35 days
after the end of each month (including the last month of each fiscal
year), Monthly Financial Statements of Borrower;"
(10) Paragraph 10(b)(4) of the Original Agreement is hereby amended and
restated in its entirety to hereafter be and read as follows:
"(4) within 35 days after the end of each calendar month, a
Borrowing Base Certificate as at the last day of such calendar month,
together with such related supporting information as Lender may
reasonably request;"
(11) Paragraph 10(b)(5) of the Original Agreement is hereby amended and
restated in its entirety to hereafter be and read as follows:
"(5) on or before 45 days after the end of each calendar
quarter (i) a listing and aging of the Accounts of Borrower (with
agings from the date of invoice as opposed to days past-due) as of the
end of such calendar quarter, (ii) an aging of accounts payable of
Borrower as of the end of such calendar quarter, and (iii) a listing
and summary of the Inventory of Borrower, including without limitation
the Eligible Raw Materials Inventory, as of the end of such calendar
quarter, each prepared in reasonable detail and containing such related
information as Lender may reasonably request"
(12) Exhibit B to the Original Agreement is hereby amended and restated
in its entirety to hereafter be in the form of Exhibit A attached hereto and
incorporated herein for all purposes.
(13) Borrower represents and warrants that the representations and
warranties contained in Paragraph 9 of the Original Agreement and in the other
Loan Documents are true and correct in all material respects on and as of the
date thereof as though made on and as of such date. The Borrower hereby
certifies that no event has occurred and is continuing which constitutes an
Event of Default under the Original Agreement or any of the other Loan Documents
or which upon the giving of notice of the lapse of time or both would constitute
such
an Event of Default, except for such Events of Default which have been waived in
writing by the Lender in connection with the execution of this Amendment.
(14) The Borrower hereby ratifies and confirms that the Security
Agreement and the Deed of Trust executed by the Borrower are in full force and
effect, and since the Security Agreement and the Deed of Trust secure any and
all indebtedness of the Borrower to the Lender now or hereafter outstanding,
each secures all amounts outstanding under the Original Agreement, as amended
hereby, including without limitation, all amounts outstanding under the
Revolving Loan, the Advance/Term Loan and the Term Loan.
(15) Except as expressly amended hereby, the Original Agreement and the
other Loan Documents shall remain in full force and effect. The Original
Agreement, as hereby amended, and all rights and powers created thereby or
thereunder and under the other Loan Documents are in all respects ratified and
confirmed and remain in full force and effect.
(16) Terms used herein which are defined in the Original Agreement or
in the other Loan Documents shall have the meanings therein ascribed to them.
The term "Loan Agreement" or "Credit Agreement" as used in the Original
Agreement, the other Loan Documents or any other instrument, document or writing
furnished to the Lender by the Borrower, when referring to the Original
Agreement, shall mean the Original Agreement as hereby amended.
(17) This Amendment (a) shall be binding upon the Borrower and the
Lender and their respective successors and assigns (provided, however, that the
Borrower shall not assign his rights hereunder without the prior written consent
of the Lender); (b) may be modified or amended only by a writing signed by each
party; (C) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OR THE
STATE OF TEXAS AND THE UNITED STATES OF AMERICA; (d) may be executed in several
counterparts, and by the parties hereto on separate counterparts, constitute an
original agreement, and all such separate counterparts shall constitute but one
and the same agreement; and (e) embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, consents and understandings relating to such subject matter
(18) BORROWER HEREBY RELEASES, DISCHARGES AND ACQUITS FOREVER LENDER
AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND COUNSEL FROM ANY AND ALL
CLAIMS EXISTING AS OF THE DATE HEREOF. AS USED HEREIN, THE TERM "CLAIM" MEANS
ANY AND ALL LIABILITIES, CLAIMS, JUDGMENTS, DEFICIENCIES, INTEREST, LIENS, COSTS
OR EXPENSES (INCLUDING BUT NOT LIMITED TO COURT COSTS, PENALTIES, ATTORNEYS'
FEES AND DISBURSEMENTS, AND AMOUNTS PAID IN SETTLEMENT) OF ANY KIND AND
CHARACTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR USURY, BREACH OF
CONTRACT, AND NEGLIGENT MISREPRESENTATION, IN EACH CASE WHETHER NOW KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, ASSERTED OR UNASSERTED OR PRIMARY OR
CONTINGENT, AND WHETHER ARISING OUT OF WRITTEN DOCUMENTS, UNWRITTEN UNDERTAKINGS
OR COURSE OF CONDUCT.
NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SS.26.02
THIS AMENDMENT, THE ORIGINAL AGREEMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED BY ANY OF THE PARTIES TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT
WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the day and year first above written.
SURREY, INC.
a Texas corporation
By:
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Name:
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Title:
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"Borrower"
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By:
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Name:
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Title:
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"Lender"
Attach:
Exhibit A - Borrowing Base Certificate (Exhibit B to the Original Agreement)
EXHIBIT A TO SIXTH AMENDMENT OF LOAN AGREEMENT
CONSTITUTING EXHIBIT B TO THE LOAN AGREEMENT
BORROWING BASE CERTIFICATE
Borrowing Base Report for Period Beginning: _________and Ending _________
("Current Period") Loan Agreement (as amended, the "Agreement") dated as of
April 8, 1998 by and between Surrey, Inc. and Chase Bank of Texas,
National Association
The undersigned hereby certifies that he or she is the _________________________
of Surrey, Inc., and that as such is authorized to execute this Borrowing Base
Certificate on behalf of Surrey, Inc. pursuant to the Agreement. On behalf of
the Borrower, the undersigned further certifies, represents and warrants that
the following components of the Borrowing Base and the calculation of the
Borrowing Base and amount available for borrowing, if any, are true and correct
(each capitalized term used herein having the same meaning given to it in the
Agreement unless otherwise specified herein):
Line 1. Total Accounts as of the end of the Current Period (based on
the lesser of each such Account as reflected in Borrower's
aging of Accounts and Borrower's general ledger) $________
2. Ineligible Accounts as of the end of the Current Period
(a) Accounts more than 90 days from invoice date: $________
(b) Other Accounts which are not Current Accounts
Receivable $________
(c) Foreign Accounts (unless insured or backed by credit
insurance or a letter of credit in form and
substance reasonably acceptable to Lender in all
respects): $________
(d) Government Accounts $________
(e) Accounts subject to a Lien, other than the Lien of
the Security Documents $________
(f) Accounts owed by any Subsidiary, employee, officer,
agent, director, stockholder, partner, trustee or
other owner of equity rights of Borrower or any
Affiliate of any such Person $________
(g) All of the Accounts of an account debtor(s) where
more than 20% of the total dollar amount of all
Accounts of the account debtor are unpaid more than
90 days from invoice date $________
(h) That portion of Accounts of an account debtor (other
than Wal-Mart Stores, Inc. and any of its Affiliates
and Bath & Body Works and any of its Affiliates) in
excess of 10% of the total dollar amount of the
total Accounts for the Current Period (Line 1) $________
(i) That portion of Accounts, in the aggregate, of
Wal-Mart Stores, Inc. and its Affiliates in excess
of 25% of the total dollar amount of the total
Accounts for the Current Period (Line 1) $________
(j) That portion of Accounts, in the aggregate, of Bath
& Body Works and its Affiliates in excess of 35% of
the total dollar amount of the total Accounts for
the Current Period (Line 1) $________
(k) Other ineligible Accounts under the Agreement $________
3. Total ineligible Accounts for the Current Period (add lines
2(a) through 2(k)) $________
4. Total Eligible Accounts (line 1 minus line 3) $________
5. Multiplied by current advance rate ________%
6. Equals total Eligible Accounts component of Borrowing Base as
of the end of the Current Period $________
7. Total Inventory as of the end of the Current Period $________
8. Ineligible Inventory as of the end of the Current Period
(a) Work-in-process $________
(b) Finished goods $________
(c) Obsolete or discontinued $________
(d) Other Inventory which is not raw materials $________
(e) Other ineligible Raw Materials Inventory under the
Agreement $________
9. Total ineligible Inventory for the Current Period (add lines
8(a) through 8(e)) $________
10. Total Eligible Raw Materials Inventory for the Current Period
(line 7 minus line 9) $________
11. Multiplied by current advance rate ________%
12. Equals, maximum Eligible Raw Materials Inventory component of
Borrowing Base $________
13. Lesser of (i) line 12 and (ii) $1,200,000, equals total
Eligible Raw Materials Inventory component of Borrowing Base
as of the end of the Current Period; provided, that if last
day of the Current Period is not between April 1, 2000 and
July 31, 2000 or between January 1, 2001 and May 8, 2001,
this amount is 0. $________
14. Total Borrowing Base as of the end of the Current Period (add
lines 6 and 13) $________
15. Revolving Commitment as of the date hereof $________
16. Lesser of Borrowing Base (line 14) or Revolving Commitment
(line 15) $________
17. Minus the aggregate outstanding amount of the Revolving
Loans as of the date hereof $________
18. Minus the aggregate face amount of all outstanding Letters of
Credit as of the date hereof $________
19. Equals the amount available for borrowing subject to the
Agreement, if positive, or amount to be repaid, if negative $________
To the extent of any conflict between the components of the Borrowing Base as
set forth on this exhibit and the provisions of the Agreement, the Agreement
shall control.
The undersigned hereby certifies that the above information and computations are
true and correct and not misleading as of the date hereof, that no Default or
Event of Default has occurred and is continuing under the Agreement and that the
Borrower is in compliance with all the financial covenants set out in the
Agreement.
Very truly yours,
Print Name:
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of
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Surrey, Inc.