EXHIBIT 10.31
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SECOND AMENDMENT AND CONSENT AGREEMENT
BETWEEN
LYON'S OF CALIFORNIA, INC.
AND
USRP (FINANCE), LLC
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AMENDING THE CREDIT AGREEMENTS AMONG
LYON'S OF CALIFORNIA, INC. AND USRP (FINANCE), LLC
EACH DATED AS OF DECEMBER 14, 1998, AS AMENDED BY THE FIRST
AMENDMENT AGREEMENT DATED AS OF DECEMBER 28, 2000
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Dated as of January 12, 2001
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THIS SECOND AMENDMENT AND CONSENT AGREEMENT dated as of January 12, 2001
(this "AMENDMENT") between LYON'S OF CALIFORNIA, INC., a California corporation
(the "BORROWER") and USRP (Finance), LLC, a Texas limited liability company (the
"LENDER"),
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender have entered into various Credit
Agreements dated as of December 14, 1998, as amended by the First Amendment
Agreement dated as of December 28, 2000 (collectively, the "AGREEMENTS"; the
terms defined in the Agreements are used in this Amendment as in the Agreements
unless otherwise defined in this Amendment); and
WHEREAS, the Borrower desire, and the Lender is willing on the terms and
conditions set forth below, to modify certain terms of the Agreements in order
to, among other things, consent to the change of control of the Borrower;
NOW, THEREFORE, in consideration of the mutual premises herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrower and the Lender have agreed to amend the
Agreements as hereinafter set forth:
SECTION 1. AMENDMENT TO AGREEMENTS. Each of the Agreements is, subject to
the satisfaction of the conditions to effectiveness set forth in Section 3
hereof, hereby amended as follows:
(a) The definitions of "Loan Documents" and "Required Corporate FCCR" in
Section 1.1 (Defined Terms) of the Agreements are amended to read in their
entirety as follows:
"`LOAN DOCUMENTS' means the Promissory Notes, this Security Agreement,
the First Amendment, the Second Amendment, the Stock Pledge Agreement,
the Collateral Assignment Agreement, the Assignment of License
Agreement and any commitment letter, guarantee mortgage, assignment of
lease, deed of trust, environmental indemnity affidavit, assignment or
other instrument, agreement, certificate or other writing, now or
hereafter executed and delivered in connection with the Promissory
Notes or the Obligations."
"`REQUIRED CORPORATE FCCR' means a Corporate FCCR (i) during the
period commencing on the Funding Date and ending on day immediately
preceding the First Amendment Effective Date, of not less than 1.15 to
1.00, (ii) during the period commencing on the First Amendment
Effective Date and ending on December 31, 2001, of not less than 1.05
to 1.00, (iii) during the period commencing on the January 1, 2002 and
ending on December 31, 2002, of not less than 1.10 to 1.00, and (iv)
during the period commencing on January 1, 2003 through the Stated
Maturity Date, of not less than 1.15 to 1.00."
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(b) Section 1.1 (Defined Terms) of the Agreements is hereby amended by
adding the following definitions in the proper alphabetical order:
"`LAO' means ▇▇▇▇▇ ▇. ▇▇▇, an individual residing at ▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇."
"`COLLATERAL ASSIGNMENT AGREEMENT' means the Collateral Assignment
Agreement dated as of January 12, 2001 between I.C.H. Corporation and
the Lender, wherein I.C.H. Corporation grants a collateral assignment
of its rights under the Stock Purchase Agreement in favor of the
Lender."
"`SECOND AMENDMENT' means the Second Amendment and Consent Agreement
dated as of January 12, 2001 between the Borrower and the Lender."
"`SECOND AMENDMENT EFFECTIVE DATE' shall mean the date the conditions
set forth in Section 3 of the Second Amendment are satisfied or waived
by the Lender."
"`STOCK PLEDGE AGREEMENT' means the Stock Pledge Agreement dated as of
January 13, 2001 among Lao, the Borrower and the Lender."
"`STOCK PURCHASE AGREEMENT' means the Stock Purchase Agreement dated
as of January 2, 2001 between I.C.H. Corporation and Lao."
(c) The fifth sentence of Section 3.14 (FCCR) of the Agreements is hereby
deleted in its entirety and substituted in lieu thereof is the following:
"The Borrower or an Affiliate shall have the right to cure any
breach by the Borrower of such Required Corporate FCCR within forty-five
(45) days of any such breach, by depositing into a segregated escrow
account in the Borrower's name (with contemporaneous written notice to the
Secured Party of the deposit account and amount escrowed): (i) if, during
the period commencing on the Funding Date and ending on day immediately
preceding the First Amendment Effective Date, (A) the Corporate FCCR is
less than 1.10 to 1.00, an amount in cash such that the interest income
thereon is sufficient in amount to cause the pro forma Corporate FCCR
(including interest income on such escrow account) to be equal to or
greater than 1.10 to 1.00, or (B) if the Corporate FCCR is equal to or
greater than 1.10 to 1.00, then an amount in cash equal to the difference
between the income of the Borrower assuming a Corporate FCCR of 1.10 to
1.00 and the income of the Borrower assuming a Corporate FCCR of 1.15 to
1.00 for the next twelve (12) month period; (ii) if, during the period
commencing on the First Amendment Effective Date and ending on December
31, 2001, (A) the Corporate FCCR is less than 1.00 to 1.00, an amount in
cash such that the interest income thereon is sufficient in amount to
cause the pro forma Corporate FCCR (including interest income on such
escrow account) to be equal to or greater than 1.00 to 1.00, or (B) if the
Corporate FCCR is equal to or greater than 1.00 to 1.00, then an amount in
cash equal to
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the difference between the income of the Borrower assuming a
Corporate FCCR of 1.00 to 1.00 and the income of the Borrower assuming
a Corporate FCCR of 1.05 to 1.00 for the next twelve (12) month
period; (iii) if, during the period commencing on the January 1, 2002
and ending on December 31, 2002, (A) the Corporate FCCR is less than
1.05 to 1.00, an amount in cash such that the interest income thereon
is sufficient in amount to cause the pro forma Corporate FCCR
(including interest income on such escrow account) to be equal to or
greater than 1.05 to 1.00, or (B) if the Corporate FCCR is equal to or
greater than 1.05 to 1.00, then an amount in cash equal to the
difference between the income of the Borrower assuming a Corporate
FCCR of 1.05 to 1.00 and the income of the Borrower assuming a
Corporate FCCR of 1.10 to 1.00 for the next twelve (12) month period;
or (iv) if, during the period commencing on January 1, 2003 through
the Stated Maturity Date, (A) the Corporate FCCR is less than 1.10 to
1.00, an amount in cash such that the interest income thereon is
sufficient in amount to cause the pro forma Corporate FCCR (including
interest income on such escrow account) to be equal to or greater than
1.10 to 1.00, or (B) if the Corporate FCCR is equal to or greater than
1.10 to 1.00, then an amount in cash equal to the difference between
the income of the Borrower assuming a Corporate FCCR of 1.10 to 1.00
and the income of the Borrower assuming a Corporate FCCR of 1.15 to
1.00 for the next twelve (12) month period."
(d) The first sentence of Section 3.15 (Limitation on Indebtedness; Lease
Obligations and Distributions) of the Agreements is hereby amended by adding at
the end thereof the words "for two (2) consecutive fiscal quarters".
(e) The third sentence of Section 3.20 (Reporting Requirements) of the
Agreements is hereby deleted in its entirety and substituted in lieu thereof is
the following:
"In addition, Borrower will make monthly reports to Secured Party of
individual Pledged Store internally generated income and expense or
operating statements for such period, within thirty (30) days after the
close of each month."
SECTION 2. CONSENTS; PREPAYMENT. (A) The Lender hereby consents to I.C.H.
Corporation and Lao entering into the Stock Purchase Agreement and the Change of
Control that will result from I.C.H. Corporation selling, and Lao purchasing,
all of the outstanding capital stock of the Borrower (the "TRANSFER").
(B) The Lender hereby consents and agrees to the termination the Stock
Pledge Agreement dated as of December 14, 1998 between I.C.H. Corporation and
the Lender and releases I.C.H. Corporation from all of its obligations
thereunder.
(C) The Lender hereby consents to the Borrower prepaying $1,314,850.86 of
the Loans, plus accrued interest thereon (the "PREPAYMENT"), which will be
applied to pay in full the outstanding Notes relating to the pledged stores
listed on SCHEDULE I attached hereto (collectively, the "RELEASED STORES").
Immediately after giving effect to the Prepayment, the aggregate principal
amount of the outstanding Notes is approximately $13,125,000.00.
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(D) Notwithstanding anything contained in the Agreement or any Loan
Document to the contrary, the Prepayment shall not be subject to any penalty or
premium, other than the payment of $100,000 (the "PREMIUM"), which Premium shall
be due and payable on the Second Amendment Effective Date.
(E) As soon as practicable after the Second Amendment Effective Date, the
Lender shall execute and deliver to the Borrower, at the Borrower's expense,
such instruments and agreements as the Borrower reasonably may request to
evidence the release or withdrawal of the Released Stores from the liens and
security interests of the Lender.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective only upon the satisfaction or waiver of all of the following
conditions precedent (the date of satisfaction of such conditions being referred
to herein as the "SECOND AMENDMENT EFFECTIVE DATE"):
(a) The Borrower, the Guarantor and the Lender shall have duly executed
and delivered this Amendment (whether the same or different copies) and the
Lender shall have received a copy signed by each of the Borrower and the
Guarantor;
(b) The Lender shall have received the fees and expense
reimbursements referred to in Section 6 hereof; and
(c) The Lender shall have received such other documents, approvals or
appraisals as the Lender may reasonably request.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the Lender
to enter into this Amendment, each of the Borrower and the Guarantor hereby,
jointly and severally, represent and warrant to the Lender that (i) each has the
full power, capacity, right and legal authority to execute, deliver and perform
its or her respective obligations under this Amendment and the other Loan
Documents to which it or she is a party, and the Borrower has taken all
appropriate action necessary to authorize the execution and delivery of, and the
performance of its respective obligations under, this Amendment and the other
Loan Documents to which it is a party, and (ii) this Amendment, the Agreements
(as amended by this Amendment) and the other Loan Documents to which it or she
is a party constitute legal, valid and binding obligations of each of the
Borrower and the Guarantor enforceable against such Borrower or Guarantor in
accordance with its terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization or moratorium or similar laws affecting the rights of
creditors generally.
SECTION 5. REFERENCE TO AND EFFECT ON THE DOCUMENTS. (A) Each reference in
the Agreements to "this Agreement", "hereunder", "hereof", "herein" or words of
like import, and each reference to the Agreements in the Loan Documents other
than the Agreements, shall mean and be a reference to the Agreements as amended
hereby.
(B) Except as specifically amended or terminated hereby, the Agreements,
all other Loan Documents, and all other documents, agreements, instruments or
writings entered into in
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connection therewith, shall remain in full force and effect and are hereby
ratified, confirmed and acknowledged by each of the Borrower and the Guarantor.
The amendments set forth above are limited precisely as written and shall not be
deemed to (i) be a consent to any waiver or modification of any other term or
condition of the Agreements or any document delivered pursuant thereto or (ii)
prejudice any right or rights which the Lender may now or in the future have in
connection with the Agreements or the other Loan Documents.
(C) Except as expressly set forth in Section 2 hereof, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Lender under any of the Loan Documents, nor
constitute a waiver or modification of any provision of any of the Loan
Documents, nor a waiver of any now existing or hereafter arising Defaults of
Events of Default.
SECTION 6. FEES AND EXPENSES. The Borrower hereby agrees to pay the Lender
on demand for all costs, expenses, charges and taxes (other than any income
taxes relating to income of the Lender), including, without limitation, all
reasonable fees and disbursements of counsel, incurred by the Lender in
connection with the negotiation, preparation, reproduction, execution, delivery,
administration and enforcement of this Amendment and the other Loan Documents to
be delivered hereunder.
SECTION 7. GOVERNING LAW. This Amendment and the rights and obligations of
the parties hereunder shall be governed by and construed and interpreted in
accordance with the substantive laws of the State of Texas, without regard for
its conflict of laws principles.
SECTION 8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
SECTION 9. SUCCESSORS. This Amendment shall be binding upon the
successors, assigns, heirs, executors and administrators of the parties
hereto.
SECTION 10. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Amendment by
signing any such counterpart.
SECTION 11. SUBSEQUENT DELIVERIES. Within one week of the execution
hereof, Borrower and Guarantor shall deliver to Lender an opinion of counsel, in
form and substance reasonably acceptable to Lender, as to the due authorization,
validity and enforceability of this Amendment, the Collateral Assignment
Agreement and the Stock Pledge Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LYON'S OF CALIFORNIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Co-Chairman and Chief
Executive Officer
USRP (FINANCE), LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
The undersigned Guarantor affirms, ratifies and acknowledges those
representations, warranties and covenants made by or on behalf of the
undersigned Guarantor in the above Amendment, the Agreement and each other Loan
Document to which it is a party.
I.C.H. CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Co-Chairman and Chief
Executive Officer
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SCHEDULE I
PARTIAL PREPAYMENTS
Loan Balance
Name Unit # Loan # as of 1/12/01
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Novato, CA 405 154 $230,775
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ 154 92,310
San Francisco, CA 402 154 23,078
Hayward(1), CA 342 154 23,078
Hayward(2), CA 343 98237 503,525
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇ 192,255
Bakersfield, CA 329 98237 91,550
Salinas, CA 344 154 23,078
Alameda, CA 446 154 138,465
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TOTAL: $1,318,113
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