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EXHIBIT 10.10
NINTH AMENDMENT TO LOAN AGREEMENT
This Ninth Amendment to Loan Agreement is made and effective as of
September 26, 1997, by and between CELEBRITY, INC., a Texas corporation
("Celebrity"), MAGICSILK, INC., a Texas corporation ("Magicsilk"), THE CLUETT
CORPORATION, a California corporation ("Cluett"), and INDIA EXOTICS, INC., a
Texas corporation ("India"), and STAR WHOLESALE FLORIST, INC., a Texas
corporation ("Star") (collectively, the "Borrowers") and NATIONAL CANADA
FINANCE CORP., a Delaware corporation (the "Lender").
WITNESSETH:
WHEREAS, the Lender, Celebrity, and Magicsilk entered into a Loan
Agreement dated May 10, 1993, as amended pursuant to a First Amendment to Loan
Agreement dated as of July 27, 1993, a Second Amendment to Loan Agreement dated
as of November 17, 1993 (by which Second Amendment, Cluett was added as one of
the Borrowers), a Third Amendment to Loan Agreement dated as of March 18, 1994,
a Fourth Amendment to Loan Agreement dated as of November 4, 1994, a Fifth
Amendment to Loan Agreement dated as of February 3, 1995 (by which Fifth
Amendment, India was added as on of the Borrowers), a Sixth Amendment to Loan
Agreement dated as of March 14, 1995, a Seventh Amendment to Loan Agreement
dated as of August 4, 1995, an Eighth Amendment to Loan Agreement dated as of
July 22, 1999, and Waiver and Modification Letters dated May 15, 1996 and
September 26, 1996, respectively (as so amended, the "Loan Agreement"),
pursuant to which the Lender committed, among other things, to make loans,
advances, and other credit facilities available to Celebrity, Magicsilk,
Cluett, and India;
WHEREAS, the parties desire to amend the Loan Agreement in certain
respects, as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, for other valuable
consideration hereby acknowledged, and subject to the other terms and
conditions hereof, the Lender and the Borrowers agree that the following
provisions of the Loan Agreement shall be amended, effective the date hereof,
as follows:
1. The definition of "Borrower" is amended in its entirety to
include Celebrity, Magicsilk, Cluett, India, and Star.
2. The definition of "Borrowing Base" in Exhibit A to the Loan
Agreement is amended and restated in its entirety, as follows:
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"Borrowing Base
The Borrowing Base is the sum of the following :
A. Fifty percent (50%) of the Inventory Value of the
Acceptable Inventory of Celebrity and Cluett located in
or in transit to the Continental United States,
consisting of raw materials or finished goods; plus
B. Forty percent (40%) of the Inventory Value of the
Acceptable Inventory of India and Star located in or in
transit to the Continental United States, consisting of
raw materials or finished goods; provided that in the
case of Star, such Inventory Value shall be net of any
reserves required by the Lender to be established for
payment of sales taxes or other matters; plus
C. Eighty percent (80%) of the amount due and owing on all
of the Borrowers' Acceptable Accounts owed by debtors
located in the Continental United States;
provided, however, that (i) the maximum amount of the
Loan, based on the Borrowers' Acceptable Inventory
located in or in transit to the Continental United
States, shall never exceed at any one time outstanding
the sum of Seventeen Million Five Hundred Thousand
Dollars ($17,500,000), and (ii) any or all of the
percentages set forth in parts A., B., and C., above,
may be increased or decreased in the reasonable
discretion of the Lender, upon written notice to the
Borrowers.
(NOTE: Although the Borrowing Base is limited as set forth above, the Lender's
Security Interest covers and includes all of the Borrowers' Inventory, Accounts
Receivable, and other collateral, both now owned or hereafter acquired, as more
particularly described in the Security Agreement, as amended from time to
time.)"
3. The definition of "LIBOR Rate" now contained in the Fourth
Amendment to the Loan Agreement is amended and restated in its entirety, as
follows:
"LIBOR Rate" means a rate per annum equal to the sum of two and
three-quarters of one percent (2 3/4%) plus the rate determined
pursuant to the following formula:
London Interbank Rate
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100% minus LIBOR Reserve Percentage"
4. The definition of "Prime Rate Loan" now contained in the Fourth
Amendment to the Loan Agreement is amended and restated in its entirety, as
follows:
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"Prime Rate Loan" means a Loan bearing interest at a per annum rate,
fluctuating from day to day, equal to the Prime Rate plus one percent
(1%)."
5. The definition of "Security Agreement" is amended and restated in
its entirety, as follows:
"Security Agreement" means that certain Amended and Restated Security
Agreement dated as of September 26, 1997 executed by each and all of
the Borrowers, together with any future renewals, extensions, or
modifications thereto."
6. The provision in the third sentence of Section 2.13(a) of the Loan
Agreement, now contained in the Fourth Amendment to the Loan Agreement, that
refers to "(x) the rate equal to (i) one-half of one percent (1/2%) per annum,
plus (ii) the Prime Rate" is changed to read "(x) the rate equal to (i) one
percent (1%) per annum plus (ii) the Prime Rate."
7. Failure of the Celebrity Group to satisfy the minimum Net Worth
requirement set forth in Section 6.15 of the Loan Agreement for the fiscal
quarter ended as of June 30, 1997 is hereby waived by the Lender.
8. Failure of the Celebrity Group to satisfy the debt to equity
requirement set forth in Section 6.16(a) of the Loan Agreement as of June 30,
1997 is hereby waived by the Lender, and such required ratio is hereby changed
to 3.00 to 1.00 for the fiscal year ended June 30, 1998, and for all periods
thereafter, 2.00 to 1.00.
9. Failure of the Celebrity Group to satisfy the EBITDA to interest
expense requirement set forth in Section 6.16(c) of the Loan Agreement as of
June 30, 1997 is hereby waived by the Lender.
10. Failure of the Celebrity Group to satisfy the minimum Net Income
requirement set forth in Section 6.17 of the Loan Agreement as of June 30, 1997
is hereby waived by the Lender.
11. By their execution hereof, Celebrity, Magicsilk, Cluett, and India
hereby certify to the Lender that as of the date hereof (a) all representations
and warranties heretofore made by them under the Loan Agreement and the other
loan papers related thereto are true in all material respects, and (b)
Celebrity, Magicsilk, Cluett, and India do not have or claim to have any
offset, counterclaim, or defense to any of their obligations under the Loan
Agreement or any of the other loan papers related thereto. By its execution
hereof, Star makes the same representations and warranties to the Lender
regarding Star and its operations as of the date of this Ninth Amendment,
except that Star is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Texas.
12. Subject to satisfaction of the requirements for the effectiveness
of this Ninth Amendment, as set forth in paragraph 14 hereof, and the agreement
of the Borrowers to the terms
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and provisions in this Ninth Amendment, the Lender hereby agrees to all of the
foregoing waivers and amendments to the Loan Agreement.
13. Except as expressly set forth herein, all terms and provisions of
the Loan Agreement and the other loan papers related thereto are hereby
confirmed as in full force and effect. The Borrowers expressly agree by their
execution hereof that all security interests, liens, and benefits created and
conferred by the Loan Agreement and such loan papers cover and extend to all
obligations evidenced and created by the Note, the Loan Agreement as amended
hereby, and all renewals, extensions, and modifications thereof, in whole or in
part. All terms with their initial letters capitalized herein and not otherwise
defined herein have the same meanings set forth in the Loan Agreement.
14. This Ninth Amendment shall not be effective until the Lender shall
have received the following, each dated such day and in form and substance
satisfactory to the Lender:
a. This Ninth Amendment, duly executed by all parties
hereto;
b. A new Note in the form attached hereto as Exhibit A,
duly executed by all parties thereto;
c. A new Security Agreement in the form attached hereto as
Exhibit B, duly executed by all parties thereto;
d. Such Uniform Commercial Code Financing Statements as
the Lender may require in order to give record notice of
the security interest in the items listed in the
Security Agreement, as executed by Star, accompanied by
the Borrowers' check or checks in an amount sufficient
to pay all recording fees and taxes for the recording of
such financial statements;
e. Certified copies (i) of the resolutions of the Board
of Directors of each of the Borrowers, upon which the
Borrowers rely for authorization of this Ninth Amendment
and all documents executed in connection herewith, and
(ii) of all documents evidencing other necessary
corporate action, including all governmental and other
consents and approvals, if any, with respect hereto and
all other documents executed in connection herewith;
f. A certificate of the Secretary or an Assistant
Secretary of each of the Borrowers, certifying the names
and genuine signatures of the officer or officers of
each of the Borrowers authorized to sign this Ninth
Amendment and the other documents to be executed and
delivered by each of the Borrowers hereunder;
g. Certificates of Good Standing for Star, from the State
of its incorporation and such other States as the Lender
shall require, together with copies of
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the Charter and By-Laws of Star, recently certified by
an appropriate corporate officer to be true and correct
copies of such documents, and that such documents are in
full force and effect;
h. Uniform Commercial Code searches from such recording
offices as the Lender shall specify, evidencing the
priority of the Lender's security interest under the
Security Agreement, as executed by Star, over any other
liens or encumbrances;
i. Payment by the Borrowers to the Lender of an amendment
fee of $25,000; and
j. A favorable opinion of legal counsel for the Borrowers',
such legal counsel to be acceptable to the Lender,
regarding (i) the corporate existence and good standing
of the Borrowers, (ii) the authorization, execution,
legality, validity, and legal enforceability of this
Ninth Amendment; and (iii) such other matters as the
Lender may reasonably request.
k. A waiver and/or subordination of the landlord's lien
on any property of Star located in or on the premises
leased by Star, as the tenant, at 8223 N. Stemmons,
Dallas, Texas 75247; provided however that the failure
to deliver such a document to the Lender by the date
hereof shall not adversely affect the effectiveness of
this Ninth Amendment if such document is delivered to
the Lender within thirty (30) days of the date hereof.
15. This Ninth Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument. In making proof hereof, it shall not be necessary to produce or
account for any counterpart other than one signed by the party against which
enforcement is sought.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first above written.
NATIONAL CANADA FINANCE CELEBRITY, INC.
CORP.
By: /s/ WILLIAM HANDLEY By: /s/ ROBERT H. PATTERSON, JR.
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Print Name: William Handley Print Name: Robert H. Patterson
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Title: Vice President Title: Chairman
-------------------------- --------------------------
By: /s/ DOUG CLARK MAGICSILK, INC
---------------------------------
Print Name: Doug Clark
--------------------- By: /s/ ROBERT H. PATTERSON, JR.
Title: Vice President ----------------------------------
-------------------------- Print Name: Robert H. Patterson
---------------------
Title: Chairman
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THE CLUETT CORPORATION
By: /s/ ROBERT H. PATTERSON, JR.
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Print Name: Robert H. Patterson
---------------------
Title: Chairman
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INDIA EXOTICS, INC.
By: /s/ ROBERT H. PATTERSON, JR.
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Print Name: Robert H. Patterson
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Title: Chairman
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STAR WHOLESALE FLORIST, INC.
By: /s/ ROBERT H. PATTERSON, JR.
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Print Name: Robert H. Patterson
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Title: Chairman
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