Exhibit 10.19
THIRD AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (the
"Amendment"), made as of the 15th day of May, 2000, among FLOORING AMERICA,
INC., a Delaware corporation, 4 FLOORS, INC., an Ohio corporation, ADVANCE FLOOR
DECORATORS, INC., a Michigan corporation, BAILEY & ROBERTS CARPETMAX OF
TENNESSEE, INC., a Tennessee corporation, CARPETMAX OF UTAH, INC., a Utah
corporation, FLOORING AMERICA FRANCHISING, L.P. (f/k/a Carpetmax, L.P.), a
Georgia limited partnership, CARPETMAX RETAIL STORES, INC., a Delaware
corporation, MANASOTA CARPET, INC., a Florida corporation, WADSWORTH & OWENS
DECORATING CENTER, INC., a Florida corporation, CARPETSPLUS OF AMERICA, INC., a
Georgia corporation, GCO CARPET OUTLET, INC., an Alabama corporation, KAREN'S
INC., a Michigan corporation, MAXIM RETAIL GROUP, INC., a Georgia corporation,
MAXIM RETAIL STORES, INC., a Georgia corporation, C & S TEXTILES, INC., an Idaho
corporation, COLORADO CARPET & RUGS, INC., a Colorado corporation, TRI-R OF
ORLANDO, INC., a Georgia corporation, and GCO, INC., a Nevada corporation, as
borrowers ("Borrowers" and each "Borrower"), the LENDERS (as defined below), and
FOOTHILL CAPITAL CORPORATION, as agent for the Lenders (the "Agent"),
W I T N E S S E T H:
WHEREAS, the Borrowers, the financial institutions party thereto
(such financial institutions, together with their respective successors and
assigns, are referred to hereinafter each individually as a "Lender" and
collectively as the "Lenders"), and the Agent are parties to that certain Loan
and Security Agreement dated as of January 28, 2000, as modified and amended by
that certain First Amendment to Loan and Security Agreement dated as of February
23, 2000, as modified and amended by that certain Second Amendment to Loan and
Security Agreement dated as of March 17, 2000 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested that certain terms of the Loan
Agreement be modified and amended; and
WHEREAS, the Agent and the Lender have agreed to such amendment as
set forth in this Amendment and pursuant to the terms and conditions of this
Amendment;
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree that all capitalized terms used but not otherwise defined herein
shall have the meanings ascribed thereto in the Loan Agreement, and further
agree as follows:
1. AMENDMENT TO ARTICLE 1 OF THE LOAN AGREEMENT.
(a) Article 1 of the Loan Agreement, DEFINITIONS, is
hereby modified and amended to delete in their entirety the existing definitions
of "INCREASED MAXIMUM AMOUNT ACTIVATION NOTICE," "INCREASED MAXIMUM AMOUNT
CLOSING DATE," "INVENTORY
ADVANCE RATE CHANGE DATE" and "TAX REFUND BORROWING BASE."
(b) Article 1 of the Loan Agreement, DEFINITIONS, is
hereby modified and amended to add the following definition of "BUSINESS PLAN"
immediately after the existing definition of "BUSINESS DAY":
"BUSINESS PLAN" has the meaning set forth in Section
7.20(d)."
(c) Article 1 of the Loan Agreement, DEFINITIONS, is
hereby modified and amended to delete the existing definition of "MAXIMUM
AMOUNT" and to substitute the following therefor:
"MAXIMUM AMOUNT" means, as of any date of determination,
$45,000,000."
(d) Article 1 of the Loan Agreement, DEFINITIONS, is
hereby modified and amended to add the following definition of "THIRD AMENDMENT"
immediately after the existing definition of "TANGIBLE NET WORTH:"
"THIRD AMENDMENT" means that certain Third Amendment to
Loan and Security Agreement dated as of May 15, 2000 among the
Borrowers, the Lender and the Agent."
2. AMENDMENTS TO ARTICLE 2 OF THE LOAN AGREEMENT.
(a) Section 2.1 of the Loan Agreement, REVOLVING
ADVANCES, is hereby modified and amended to delete the second sentence of
subsection (a) thereof and to substitute the following therefor:
"For purposes of this Agreement, "Borrowing Base", as of
any date of determination, shall mean the result of:
(w) THE LESSER OF --
(I) the sum of --
(i) eighty-five percent (85%) of Eligible
Accounts, LESS the amount, if any, of the Dilution
Reserve, and
(ii) the least of (A)$25,000,000 and (B)
THE LESSER OF (aa) thirty percent (30%) of the Cost
of Eligible Inventory and (bb) seventy percent (70%)
of the most recently determined Net Liquidation Value
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multiplied by the Cost of the Inventory, MINUS the
Inventory Reserves, and (C) one hundred fifty percent
(150%) of the amount of credit availability created
by clause (w)(I)(i) above,
(II) an amount equal to
Borrowers' Collections with respect to Accounts
for the immediately preceding thirty (30) day
period, PLUS
(x) (I) until the earlier of December
20, 2000 and the date Agent, for the benefit of the
Lenders, receives the Net Proceeds from the sale,
sale/leaseback or other disposition of the New
Headquarters, $10,000,000 and (II) thereafter $-0- (the
"Real Estate Borrowing Base"), PLUS
(y) (I) from May 8, 2000 through the
earlier of May 12, 2000 and the date immediately preceding
the date any cash payment of interest or otherwise is made
in respect of the Senior Subordinated Notes, $2,000,000,
and (II) from May 13, 2000 through the earlier of May 19,
2000 and the date immediately preceding the date any cash
payment of interest or otherwise is made in respect of the
Senior Subordinated Notes, $1,000,000 MINUS
(z) the aggregate amount of reserves, if
any, established by Agent under SECTIONS 2.1(B), 6.15 AND
10."
(b) Section 2.1(d) of the Loan Agreement, PROCEDURE
FOR BORROWING, is hereby modified and amended to delete the references to
"$5,000,000" therein and to substitute "$3,000,000" therefor.
(c) Section 2.7(a) of the Loan Agreement, INTEREST
RATE, is hereby deleted in its entirety and the following is hereby substituted
therefor:
"(a) INTEREST RATE. Except as provided
in clause (c) below, (i) all Eurodollar Rate Loans shall
bear interest at a per annum rate equal to the Adjusted
Eurodollar Rate plus two and three-quarters of one percent
(2.75%), (ii) Reference Rate Loans shall bear interest at
a per annum rate equal to the Reference Rate plus two and
one-half of one percent (2.50%), and (iii) all other
Obligations shall bear interest at the per annum rate
equal to the Reference Rate plus two and one-half of one
percent (2.50%)."
(d) Section 2.7(b) of the Loan Agreement, LETTER OF
CREDIT FEE, is hereby amended to delete the reference to "one and one-half of
one percent (1.50%)" therein and to substitute "two and one-half of one percent
(2.50%)" therefor.
(e) Section 2.7(c) of the Loan Agreement, DEFAULT
RATE, is hereby deleted in its entirety and the following is hereby substituted
therefor:
"(c) DEFAULT RATE. Upon the occurrence
and during the continuation of an Event of Default, (i)
all Obligations (except for undrawn
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Letters of Credit) shall bear interest at a per annum
rate equal to four and one-half of one percent above
the rate otherwise applicable to such Obligations,
and (ii) the Letter of Credit fee provided in SECTION
2.7(b) shall be increased to seven percent (7.00%)
per annum times the amount of the aggregate undrawn
amount of all outstanding Letters of Credit."
(f) Section 2.7(d) of the Loan Agreement,
INTENTIONALLY OMITTED, is hereby deleted in its entirety and the following is
hereby substituted therefor:
"(d) MINIMUM INTEREST. In no event shall
the rate of interest chargeable hereunder for any day be
less than eight percent (8.00%) per annum. To the extent
that interest accrued hereunder at the rate set forth
herein would be less than the foregoing minimum daily
rate, the interest rate chargeable hereunder for such day
automatically shall be deemed increased to the minimum
rate."
(g) Section 2.9 of the Loan Agreement, CREDITING
PAYMENTS; APPLICATION OF COLLECTIONS, is hereby modified and amended to delete
the references to "one (1)" therein and to substitute "one and one-half (1.5)"
therefor.
(h) Section 2.13 of the Loan Agreement, EURODOLLAR
RATE LOANS, is hereby modified and amended to delete the first sentence of
subsection (a) thereof in its entirety and to substitute the following therefor:
"Any Borrower may from time to time, on or after the
Closing Date and prior to the date of the Third Amendment,
request in writing to Agent: (i) Advances to constitute
Eurodollar Rate Loans; (ii) that Reference Rate Loans be
converted into Eurodollar Rate Loans; or (iii) that
existing Eurodollar Rate Loans continue for an additional
Interest Period; PROVIDED, HOWEVER, that notwithstanding
anything herein which may be construed to the contrary, at
all times that the Real Estate Borrowing Base is in effect
at least $10,000,000 of Advances must constitute Reference
Rate Loans. Accordingly, at no time on or after the date
of the Third Amendment will Advances be made as, converted
to or continued (at the expiration of the Interest Period
thereof) as Eurodollar Rate Loans. "
(i) Section 2.17 of the Loan Agreement, INCREASED
MAXIMUM AMOUNT, is hereby deleted in its entirety and "2.17 INTENTIONALLY
OMITTED" is hereby substituted therefor.
3. AMENDMENT TO ARTICLE 3 OF THE LOAN AGREEMENT. Section 3.3
of the Loan Agreement, CONDITIONS SUBSEQUENT, is hereby deleted in its entirety
and the following is hereby substituted therefor:
"3.3 CONDITION SUBSEQUENT. As a condition subsequent to
initial closing hereunder, Borrowers shall perform or cause to be
performed the following (the failure
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by any Borrower to so perform or cause to be performed
constituting an Event of Default):
(a) on or before May 22, 2000, Borrowers shall
have conducted an interview of a nationally known crisis manager
or such other crisis manager as shall be acceptable to the Agent
in its reasonable discretion at Borrowers' headquarters and at
Borrower expense;
(b) on or before May 26, 2000, Borrowers shall
have delivered to Agent Blocked Account Agreements with respect to
Borrowers accounts maintained at Wells Fargo Bank, National
Association, Norwest Bank Minnesota, National Association, Fleet
National Bank and BankOne;
(c) on or before May 26, 2000, Borrowers shall
have delivered to Agent a Credit Card Agreement from Norwest Bank
Minnesota, National Association;
(d) on or before May 26, 2000, Borrowers shall
have delivered to Agent evidence that the Liens referenced on
Schedule 3.3 have been terminated. Prior to such date, such Liens
shall be deemed to be Permitted Liens;
(e) on or before May 26, 2000, Borrowers shall
have delivered to Agent certified copies of the policies of
insurance, as are required by SECTION 6.10, the form and substance
of which shall be reasonably satisfactory to Agent and its
counsel;
(f) on or before June 5, 2000, Borrowers shall
deliver to Agent certificates of title for all of Borrowers'
vehicles; and
(g) on or before December 20, 2000, Borrowers
shall have used their best efforts to consummate a sale,
sale/leaseback or other disposition of the New Headquarters."
4. AMENDMENT TO ARTICLE 4 OF THE LOAN AGREEMENT. Section 4.6
of the Loan Agreement, RIGHT TO INSPECT, is hereby modified and amended to
delete the second sentence thereof in its entirety.
5. AMENDMENTS TO ARTICLE 7 OF THE LOAN AGREEMENT.
(a) Section 7.4 of the Loan Agreement, DISPOSAL OF
ASSETS, is hereby modified and amended to delete the first proviso thereof and
to substitute the following therefor:
" PROVIDED, HOWEVER, that Borrowers may sell, sell and
lease-back or otherwise dispose of the New Headquarters so
long as the Net Proceeds therefor are not less than
$14,000,000 and such Net Proceeds are remitted to Agent
for the benefit of the Lender Group to be applied to the
Obligations;"
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(b) Section 7.8 of the Loan Agreement, PREPAYMENTS
AND AMENDMENTS, is hereby modified and amended to delete the word "and" at the
end of subsection (c) thereof and to add the following additional subsection
immediately after the existing subsection (d):
"and;
(e) Make any cash interest payment on the Senior
Subordinated Notes or the Seller Notes; PROVIDED, HOWEVER,
that Borrowers may make any cash interest payment on the
Senior Subordinated Notes or any Seller Note so long as
(i) no Default or Event of Default exists or would be
caused thereby, (ii) the average Availability hereunder
for the four (4) months prior to any such interest payment
(or, in the case of any payment to be made prior to the
date four (4) months following the Closing Date, for the
period from the Closing Date to the date of such payment)
less the amount of such interest payment, less any reserve
created by Agent in its reasonable judgment for any
deterioration in Borrowers' accounts payable, is in excess
of the amount of such interest payment made; PROVIDED
FURTHER, HOWEVER, that Borrowers may make the cash
interest payment on the Senior Subordinated Notes
originally due on April 15, 2000 so long as (i) no Default
or Event of Default exists or would be caused thereby,
(ii) the Availability hereunder on the date of such
interest payment less the amount of such interest payment
is in excess of the amount of such interest payment made."
(c) Section 7.20 of the Loan Agreement, FINANCIAL
COVENANTS, is hereby modified and amended to delete in their entirety
subsections (a), (b), and (c) and to substitute the following therefor and to
add additional subsection (d):
"(a) EBITDA. As of the last day of the fiscal
month ending closest to April 30, 2000, and as of the last
day of each fiscal month thereafter, EBITDA of at least
the amount set forth in the table below for the
immediately preceding one (1) fiscal month:
For the fiscal month EBITDA shall not
ending closest to: be less than:
April 30, 2000 $ 450,000
May 31, 2000 $1,500,000
June 30, 2000 $2,000,000
July 31, 2000 $2,500,000
August 31, 2000 $2,200,000
September 30, 2000 $1,800,000
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October 31, 2000 $2,500,000
November 30, 2000 $2,100,000
December 31, 2000 $1,600,000
January 31, 2001 ($2,100,000)
For the period from the fiscal month ending
closest to April 30, 2000, and continuing to and through
January 31, 2001, the calculation of EBITDA shall exclude
any severance costs (both cash and non-cash costs)
resulting from or otherwise incurred by Borrower for any
severance of those six most highly compensated individuals
identified in Borrower's most recently filed proxy
statement dated May 24, 2000 for the Borrower's annual
stockholders meeting scheduled for June 23, 2000.
(b) Tangible Net Worth. Tangible Net Worth of at
least the amount set forth in the table below as of the
last day of the fiscal quarter ending closest to April 30,
2000 and as of the last day of each fiscal quarter
thereafter:
As of the fiscal quarter Tangible Net Worth
ending closest to: shall not be less than:
April 30, 2000 ($34,500,000)
July 31, 2000 ($36,500,000)
October 31, 2000 ($36,000,000)
January 31, 2001 ($41,250,000)
(c) Fixed Charge Coverage Ratio. As of the last
day of the fiscal quarter ending closest to April 30,
2000, and as of the last day of each fiscal quarter
thereafter, a Fixed Charge Coverage Ratio of at least the
amount set forth in the table below (i) with respect to
the fiscal quarter ending closest to April 30, 2000, for
the immediately preceding one (1) fiscal quarter, (ii)
with respect to the fiscal quarter ending closest to July
31, 2000, for the immediately preceding two (2) fiscal
quarters, (iii) with respect to the fiscal quarter ending
closest to October 31, 2000, for the immediately preceding
three (3) fiscal quarters, and (iv) with respect to each
fiscal quarter thereafter, for the immediately preceding
four (4) fiscal quarters:
For the fiscal period Fixed Charge Coverage Ratio
ending closest to: shall not be less than:
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April 30, 2000 through January 31, Not applicable
2001
(d) On or before June 30, 2000, Borrower agrees to deliver
to Agent Borrower's revised business plan for the remainder of Borrower's 2001
fiscal year, which plan should be reasonably acceptable to Agent in all
respects. On or before December 1, 2000, and on each December 1, thereafter,
Borrower agrees to deliver to Agent Borrower's business plan for its upcoming
fiscal year commencing on February 6, 2001 and each February of such fiscal year
thereafter (the "Business Plan"), which plan shall be reasonably acceptable to
Agent in all respects. Based upon the Business Plan for each such fiscal year,
Agent shall establish the quarterly minimum EBITDA, minimum Tangible Net Worth
and minimum Fixed Charge Coverage Ratio covenants for the fiscal year in
question using the same methodology as utilized for the 2001 fiscal year
financial covenants, and the new covenant levels shall be presented to Borrower
for its approval, which approval shall not be unreasonably withheld. In the
event that Borrower does not approve the proposed covenant levels, Agent shall
establish the covenant levels in its reasonable discretion, based upon the
Business Plan for the applicable fiscal year.
6. WAIVER. The Agent and the Lenders waive any Default caused
by the Borrower's failure to comply with Sections 3.3 and 7.20 of the Loan
Agreement prior to the effective date of this Amendment and any Event of Default
under Section 8.2 of the Loan Agreement caused thereby.
7. NO OTHER AMENDMENT OR WAIVER. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided above,
operate as an amendment or waiver of any right, power or remedy of the Agent or
the Lenders under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan Agreement or any of the other
Loan Documents. Except for the amendments and waiver expressly set forth above,
the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect and the Borrowers hereby ratify and
confirm their obligations thereunder. This Amendment shall not constitute a
modification of the Loan Agreement or a course of dealing with the Agent or the
Lenders at variance with the Loan Agreement such as to require further notice by
the Agent or the Lenders to require strict compliance with the terms of the Loan
Agreement and the other Loan Documents in the future, except as expressly set
forth herein. The Borrowers acknowledge and expressly agree that the Agent and
the Lenders reserve the right to, and do in fact, require strict compliance with
all terms and provisions of the Loan Agreement and the other Loan Documents. The
Borrowers have no knowledge of any challenge to the Agent's or the Lenders'
claims arising under the Loan Documents or the effectiveness of the Loan
Documents.
8. CONDITIONS OF EFFECTIVENESS.
This Amendment shall become effective as of the date
hereof when, and only when, the Agent, on behalf of the Lenders, shall have
received, in form and substance satisfactory to it:
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(a) counterparts of this Amendment executed by the
Borrowers, the Agent and each of the Lenders;
(b) payment by the Borrowers of an amendment and
waiver fee of $25,000, which shall be fully earned and due on the date hereof
and nonrefundable when paid (it being understood that, by execution and delivery
of this Amendment, the Borrowers authorize the Agent to charge the Borrowers'
Loan Account for such fee and such amount shall thereafter accrue interest at
the rate applicable to Advances under the Loan Agreement in accordance with
Section 2.7(e) of the Loan Agreement);
(c) updated projections of the Borrowers for the
period from the date hereof until the Maturity Date, together with revised
thirteen week cash flow projections, in each case, in form and substance
satisfactory to the Agent in its sole discretion; and
(d) such other information, documents, instruments or
approvals as the Agent, the Lenders or the Agent's counsel may require.
9. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation or limited
partnership, as the case may be, organized, validly existing and in good
standing under the laws of the jurisdiction indicated at the beginning of this
Amendment;
(b) The execution, delivery and performance by such
Borrower of this Amendment and the Loan Documents, as amended hereby, are within
such Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) such Borrower's articles or
certificate of incorporation, or (ii) law or any contractual restriction binding
on or affecting such Borrower;
(c) Except for approvals which have been obtained, no
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body, is required for the due execution,
delivery and performance by such Borrower of this Amendment or any of the Loan
Documents, as amended hereby, to which such Borrower is or will be a party;
(d) This Amendment and each of the other Loan
Documents, as amended hereby, to which such Borrower is a party, constitute
legal, valid and binding obligations of such Borrower, enforceable against such
Borrower in accordance with their respective terms; and
(e) No Default or Event of Default is existing.
10. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Loan Agreement,
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and each reference in the other Loan Documents to "the Loan Agreement,"
"thereunder," "thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as amended hereby.
11. COSTS, EXPENSES AND TAXES. Each Borrower, jointly and
severally, agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder.
12. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to
conflict of laws principles of such state.
13. LOAN DOCUMENT. This Amendment shall be deemed to be a Loan
Document for all purposes.
14. COUNTERPARTS. This Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts, each of which
shall be deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute and deliver
this Amendment as of the day and year first written above.
FLOORING AMERICA, INC.,
a Delaware corporation
By:
_______________________________________
Name:
Title:
4 FLOORS, INC.,
an Ohio corporation
By:
_______________________________________
Name:
Title:
ADVANCE FLOOR DECORATORS, INC.,
a Michigan corporation
By:
_______________________________________
Name:
Title:
BAILEY & ROBERTS CARPETMAX OF
TENNESSEE, INC.,
a Tennessee corporation
By:
_______________________________________
Name:
Title:
CARPETMAX OF UTAH, INC.,
a Utah corporation
By:
_______________________________________
Name:
Title:
FLOORING AMERICA FRANCHISING, L.P.,
a Georgia limited partnership
By: Flooring America, Inc., its general partner
By:
_______________________________________
Name:
Title:
CARPETMAX RETAIL STORES, INC.,
a Delaware corporation
By:
_______________________________________
Name:
Title:
MANASOTA CARPET, INC.,
a Florida corporation
By:
_______________________________________
Name:
Title:
WADSWORTH & OWENS DECORATING
CENTER, INC.,
a Florida corporation
By:
_______________________________________
Name:
Title:
CARPETSPLUS OF AMERICA, INC.,
a Georgia corporation
By:
_______________________________________
Name:
Title:
GCO CARPET OUTLET, INC.,
an Alabama corporation
By:
_______________________________________
Name:
Title:
KAREN'S INC.,
a Michigan corporation
By:
_______________________________________
Name:
Title:
MAXIM RETAIL GROUP, INC.,
a Georgia corporation
By:
_______________________________________
Name:
Title:
MAXIM RETAIL STORES, INC.,
a Georgia corporation
By:
_______________________________________
Name:
Title:
C&S TEXTILES, INC.,
an Idaho corporation
By:
_______________________________________
Name:
Title:
COLORADO CARPET & RUGS, INC.,
a Colorado corporation
By:
_______________________________________
Name:
Title:
TRI-R OF ORLANDO, INC.,
a Georgia corporation
By:
_______________________________________
Name:
Title:
GCO, INC.,
a Nevada corporation
By:
_______________________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION,
a California corporation with an office in
Atlanta, Georgia, as Agent and as a Lender
By:
_______________________________________
Name: Todd Colpitts
Title: Vice President