WAIVER AND NINTH AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
WAIVER AND NINTH AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS WAIVER AND NINTH AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”) is dated as of July [__], 2011, among DGSE COMPANIES, INC., a Nevada corporation (“Borrower”), and TEXAS CAPITAL BANK, NATIONAL ASSOCIATION, a national banking association (“Lender”).
A. Borrower and Lender are party to that certain Loan Agreement dated as of December 22, 2005 (as modified, amended, renewed, extended, and restated, the “Loan Agreement”).
B. Borrower has failed to satisfy for the fiscal quarters ending December 31, 2010 and March 31, 2011 (the “Subject Periods”), (i) the minimum Tangible Net Worth required by Section 9.1 of the Loan Agreement, (ii) the maximum Leverage Ratio permitted by Section 9.2 of the Loan Agreement, and (iii) the minimum Fixed Charge Coverage Ratio required by Section 9.3 of the Loan Agreement (collectively, the “Subject Defaults”). Borrower has requested that Lender waive the Subject Defaults for the Subject Periods and amend certain provisions of the Loan Documents. Lender has agreed, subject to the terms and conditions of this Amendment, to waive such Subject Defaults solely for the Subject Periods and amend the Loan Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Terms and References. Unless otherwise stated in this Amendment, (a) terms defined in the Loan Agreement have the same meanings when used in this Amendment, and (b) references to “Sections” are to the Loan Agreement’s sections.
2. Waiver. Subject to the terms and conditions in this Amendment, Lender hereby waives the Subject Defaults solely for the Subject Periods. The waiver hereby granted by Lender (a) is limited expressly as written, (b) does not impair Lender’s rights to insist upon strict compliance with the Loan Agreement and the other Loan Documents, and (c) does not extend to any other Defaults or Events of Default.
Lender hereby expressly reserves all rights and remedies available to it under any of the Loan Documents, at law, in equity, or otherwise, and expressly reserves the right at any time and from time to time to take any action available to it that it deems appropriate under the circumstances. No past, present, or future failure by Lender to notify Borrower of any Default or Event of Default or failure or delay by Lender in exercising any rights and remedies available under the Loan Documents shall constitute a waiver of any Default or Event of Default, whether known or unknown, and whether now existing or hereafter arising.
3. Amendments to Loan Agreement.
(a) Section 1.1 of the Loan Agreement is hereby amended by deleting the definitions of “Eligible Inventory” and “Termination Date” therefrom, and substituting the following in lieu thereof:
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and Other Loan Documents
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“Eligible Inventory” means, at any time, all Gross Merchandise Inventory of raw materials and finished goods then owned by (and in the possession or under the control of) Borrower and held for sale or disposition in the ordinary course of Borrower’s business, in which Lender has a perfected, first priority security interest, valued at the lower of actual cost or fair market value and determined by Lender. Eligible Inventory shall not include (a) inventory that is work-in-process, (b) inventory that has been shipped or delivered to a customer on consignment, a sale-or-return basis, or on the basis of any similar understanding, (c) inventory with respect to which a claim exists disputing Borrower’s title to or right to possession of such inventory, (d) inventory supported by a customer deposit, (e) inventory that is not in good condition or does not comply with any applicable law, rule, or regulation or any standard imposed by any Governmental Authority with respect to its manufacture, use, or sale, (f) inventory that is damaged, obsolete or otherwise not readily saleable, (g) inventory covered by negotiable warehouse or other document of title (unless the same is in the possession of Lender); (h) inventory held for rental or lease, (i) inventory that Lender, in its sole discretion, has determined to be unmarketable, (j) inventory subject to third-party intellectual property agreements, and (k) inventory that requires consent of a third-party for manufacture or sale. In addition, no more than ten percent (10%) of the total value of all inventory shall consist of Long Term Inventory. For purposes of this definition, Eligible Inventory consisting of inventory obtained from a Pawn Loan shall be valued at the lower of the defaulted loan value of the underlying Pawn Loan or market value.
“Termination Date” means 11:00 a.m., Dallas, Texas time on June 22, 2012, or such earlier date on which the Commitment terminates as provided in this Agreement.
(b) Section 9.1 is hereby deleted in its entirety, and the following new Section 9.1 is substituted in lieu thereof:
Section 9.1 Consolidated Tangible Net Worth. Borrower shall not permit, as of any date, Tangible Net Worth of Borrower and its Subsidiaries, on a consolidated basis, to be less than Fifteen Million Dollars ($15,000,000).
(c) Section 9.2 is hereby deleted in its entirety, and the following new Section 9.2 is substituted in lieu thereof:
Section 9.2 Leverage Ratio. Borrower will at all times maintain a ratio of consolidated Liabilities minus Subordinated Debt to consolidated Tangible Net Worth that is not greater than 1.0 to 1.0. This Section 9.2 shall be calculated based on the Liabilities, Subordinated Debt, and Tangible Net Worth of Borrower and its Subsidiaries, on a consolidated basis.
(d) Section 9.3 is hereby deleted in its entirety, and the following new Section 9.3 is substituted in lieu thereof:
Section 9.3 Fixed Charge Coverage Ratio. Borrower and its Subsidiaries, shall not, as of the last day of any fiscal quarter during the following periods, beginning with the fiscal quarter ending on June 30, 2011, permit the ratio of (a) EBITDA, minus Cash Taxes, minus Capital Expenditures not financed with Indebtedness permitted hereunder (excluding Capital Expenditures approved in writing by Lender, in its sole discretion), to (b) Debt Service, in each case for the four (4) fiscal quarters ending on the date of determination, to be less than 1.40 to 1.0. This Section 9.3 shall be based on the rolling four (4) quarter cash flow and debt service obligations of Borrower and its Subsidiaries; provided that (i) for the fiscal quarter ending June 30, 2011, the calculation shall be annualized based on the fiscal quarters ending March 31, 2011 and June 30, 2011, and (ii) for the fiscal quarter ending September 30, 2011, the calculation shall be annualized based on the fiscal quarters ending March 31, 2011, June 30, 2011, and September 30, 2011.
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(e) Exhibit B (but not Schedule A to Exhibit B) attached to the Loan Agreement is hereby deleted in its entirety and replaced with Exhibit B attached hereto.
4. Amendment to Revolving Credit Note. The Revolving Credit Note is hereby amended by deleting the definition of “Maturity Date” therefrom, and substituting the following in lieu thereof:
Maturity Date: means June 22, 2012.
5. Amendment to Term Note. The Term Note is hereby amended by deleting the definition of “Maturity Date” therefrom, and substituting the following in lieu thereof:
Maturity Date: means June 22, 2012.
6. Amendments to Other Loan Documents.
(a) All references in the Loan Documents to the Loan Agreement shall henceforth include references to the Loan Agreement, as modified and amended hereby, and as may, from time to time, be further amended, modified, extended, renewed, and/or increased. All references in the Loan Documents to the Notes shall henceforth include references the Notes as amended hereby, and as may, from time to time, be further amended, modified, renewed, extended, and/or restated.
(b) Any and all of the terms and provisions of the Loan Documents are hereby amended and modified wherever necessary, even though not specifically addressed herein, so as to conform to the amendments and modifications set forth herein.
7. Conditions Precedent. This Amendment shall not be effective until (a) Lender receives an executed copy of this Amendment, including the ratifications attached hereto, (b) Lender receives an amendment fee in the amount of Thirty-Five Thousand Dollars ($35,000), together with payment of the estimated reasonable fees and expenses of Lender’s counsel incurred in connection with this Amendment in immediately available funds, (c) all representations and warranties set forth in this Amendment are true and correct, (d) after giving effect to this Amendment, no Default or Event of Default, other than the Subject Defaults which are waived by Lender pursuant to this Amendment, exists, (e) Lender receives a certificate of incumbency for Borrower certified by its Secretary or an Assistant Secretary of Borrower certifying (i) the name of each of its officers who is authorized to sign this Amendment, (ii) a true and correct copy of the resolutions of the directors of Borrower which authorize its execution and delivery of this Amendment, and the performance of the Loan Documents as amended hereby, and (iii) that the charter and bylaws of Borrower have not been amended since December 22, 2005, and that the same are still in effect, and (f) Lender receives a certificate evidencing the existence and good standing of Borrower from the Secretary of State of the State of Nevada.
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8. Ratifications. Borrower (a) ratifies and confirms all provisions of the Loan Documents as amended by this Amendment, (b) ratifies and confirms that all Liens granted, conveyed, or assigned to Lender under the Loan Documents are not released, reduced, or otherwise adversely affected by this Amendment and continue to guarantee, assure, and secure full payment and performance of the present and future Obligations, and (c) agrees to perform such acts and duly authorize, execute, acknowledge, deliver, file, and record such additional documents, and certificates as Lender may request in order to create, perfect, preserve, and protect those guaranties, assurances, and Liens.
9. Representations. Borrower represents and warrants to Lender that as of the date of this Amendment: (a) this Amendment has been duly authorized, executed, and delivered by Borrower; (b) other than the filing of the Loan Agreement and this Amendment with the Securities and Exchange Commission, no action of, or filing with, any governmental authority is required to authorize, or is otherwise required in connection with, the execution, delivery, and performance by Borrower of this Amendment; (c) the Loan Documents, as amended by this Amendment, are valid and binding upon Borrower and are enforceable against Borrower in accordance with their respective terms, except as may be limited by Debtor Relief Laws; (d) the execution, delivery, and performance by Borrower of this Amendment do not require the consent of any other Person and do not and will not constitute a violation of any laws, agreements, or understandings to which Borrower is a party or by which Borrower is bound; (e) all representations and warranties in the Loan Documents are true and correct in all material respects; and (f) after giving effect to this Amendment, no Default or Event of Default, other than the Subject Defaults which are waived by Lender pursuant to this Amendment, exists.
10. Miscellaneous. Unless stated otherwise (a) the singular number includes the plural and vice versa and words of any gender include each other gender, in each case, as appropriate, (b) headings and captions may not be construed in interpreting provisions, (c) this Amendment must be construed -- and its performance enforced -- under Texas law, (d) if any part of this Amendment is for any reason found to be unenforceable, all other portions of it nevertheless remain enforceable, and (e) this Amendment may be executed in any number of counterparts with the same effect as if all signatories had signed the same document, and all of those counterparts must be construed together to constitute the same document.
11. Maximum Interest Rate. Regardless of any provision contained in any of the Loan Documents, Lender shall never be entitled to receive, collect, or apply as interest (whether termed interest herein or deemed to be interest by operation of law or judicial determination) on the Notes any amount in excess of interest calculated at the Maximum Lawful Rate, and, in the event that Lender ever receives, collects, or applies as interest any such excess, then the amount which would be excessive interest shall be deemed to be a partial prepayment of principal and treated hereunder as such; and, if the principal amount of the Obligation is paid in full, then any remaining excess shall forthwith be paid to Borrower. In determining whether or not the interest paid or payable under any specific contingency exceeds interest calculated at the Maximum Lawful Rate, Borrower and Lender shall, to the maximum extent permitted under applicable law: (a) characterize any non-principal payment as an expense, fee, or premium rather than as interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate, and spread, in equal parts, the total amount of interest throughout the entire contemplated term of the Notes; provided that, if the Notes are paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds interest calculated at the Maximum Lawful Rate, then Lender shall refund to Borrower the amount of such excess or credit the amount of such excess against the principal amount of the Notes and, in such event, Lender shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving, or receiving interest in excess of interest calculated at the Maximum Lawful Rate.
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12. Entireties. The Loan Agreement and other Loan Documents as amended by this Amendment represent the final agreement between the parties about the subject matter of the Loan Agreement and other Loan Documents as amended by this Amendment 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.
13. RELEASE. BORROWER AND THE OTHER OBLIGATED PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF THEIR LIABILITY TO REPAY ANY LOANS OR EXTENSIONS OF CREDIT FROM LENDER TO BORROWER OR ANY OBLIGATED PARTY UNDER THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER. BORROWER AND THE OBLIGATED PARTIES HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE LENDER AND ITS PREDECESSORS, ATTORNEYS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, CLAIMS OF FRAUD, DURESS, MISTAKE, TORTIOUS INTERFERENCE, USURY, BREACH OF FIDUCIARY DUTY, BREACH OF DUTY OF FAIR DEALING, BREACH OF CONFIDENCE, BREACH OF FUNDING COMMITMENT, UNDUE INFLUENCE, NEGLIGENCE OR FRAUD IN RATES AND METHODS USED TO COMPUTE INTEREST, DECEPTIVE TRADE PRACTICE OR THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT), ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH BORROWER OR THE OTHER OBLIGATED PARTIES MAY NOW OR HEREAFTER HAVE AGAINST LENDER, ITS PREDECESSORS, ATTORNEYS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY CREDIT ACCOMMODATIONS FROM LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
14. Parties. This Amendment binds and inures to Borrower, Lender, and their respective successors and assigns.
[Remainder of Page Intentionally Left Blank;
Signature Pages to Follow]
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EXECUTED as of the date first stated above.
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BORROWER:
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DGSE COMPANIES, INC., a Nevada corporation
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By:
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▇▇▇▇▇▇▇ ▇. Oyster, President
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LENDER:
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TEXAS CAPITAL BANK, NATIONAL ASSOCIATION,
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a national banking association
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▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President
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Signature Page to DGSE Waiver and Ninth Amendment
To induce Lender to enter into this Amendment, the undersigned jointly and severally (a) consent and agree to the execution and delivery of the Amendment, (b) ratify and confirm that all guaranties, assurances, and Liens granted, conveyed, or assigned to Lender under the Loan Documents are not released, diminished, impaired, reduced, or otherwise adversely affected by this Amendment and continue to guarantee, assure, and secure the full payment and performance of all present and future Obligations including the Revolving Credit Note and the Term Note, as amended hereby, (c) waive notice of acceptance of this consent and agreement, which consent and agreement binds the undersigned and their successors and permitted assigns and inures to Lender and its respective successors and permitted assigns, and (d) acknowledge and agree to the provisions of Section 13 of this Amendment.
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GUARANTORS:
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DGSE CORPORATION
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By:
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▇▇▇▇▇▇▇ ▇. Oyster, President
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NATIONAL JEWELRY EXCHANGE, INC.
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By:
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▇▇▇▇▇▇▇ ▇. Oyster, President
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CHARLESTON GOLD & DIAMOND
EXCHANGE, INC.
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By:
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▇▇▇▇▇▇▇ ▇. Oyster, President
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AMERICAN PAY DAY CENTERS, INC.
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By:
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▇▇▇▇ ▇▇▇▇▇▇, Secretary
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SUPERIOR GALLERIES, INC.
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By:
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Signature Page to DGSE Waiver and Ninth Amendment
To induce Lender to enter into this Amendment, the undersigned (a) consents and agrees to the execution and delivery of the Amendment, (b) ratifies and confirms that its obligations under the Limited Guaranty dated as of December 22, 2005 (the “Limited Guaranty”) are not released, diminished, impaired, reduced, or otherwise adversely affected by this Amendment and continue to guarantee, assure, and secure the full payment and performance of all present and future Obligations including the Revolving Credit Note and the Term Note, as amended hereby, to the extent set forth in the Limited Guaranty, (c) waives notice of its acceptance of this consent and agreement, which consent and agreement binds the undersigned and its successors and permitted assigns and inures to Lender and its respective successors and permitted assigns, and (d) acknowledge and agree to the provisions of Section 13 of this Amendment.
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LIMITED GUARANTOR:
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By:
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▇.▇. ▇▇▇▇▇, as an individual
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Signature Page to DGSE Waiver and Ninth Amendment
EXHIBIT B
COMPLIANCE CERTIFICATE
FOR QUARTER/PERIOD ENDED ________________________ (THE "SUBJECT PERIOD")
LENDER: TEXAS CAPITAL BANK, National Association
BORROWER: DGSE COMPANIES, INC., a Nevada corporation
This certificate is delivered under the Loan Agreement (as amended and modified from time to time, the “Agreement”) dated as of December 22, 2005, between Parent, Borrower and Lender. Capitalized terms when used in this certificate shall, unless otherwise indicated, have the meanings set forth in the Agreement. On behalf of Parent and Borrower, the undersigned certifies to Lender that, on the date of this certificate, (a) the financial Statements of Parent and Borrower attached to this certificate were prepared in accordance with GAAP, and present fairly the financial condition and results of operations of Parent and Borrower, with Superior and its consolidated Subsidiaries and without Superior and its consolidated Subsidiaries, as applicable, as of the end of and for the Subject Period, (b) no Default or Event of Default currently exists or has occurred which has not been cured or waived by Lender, and (c) the status of compliance by Parent and Borrower with certain covenants of the Agreement at the end of the Subject Period is as set forth below:
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In Compliance as of
End of Subject Period
(Please Indicate)
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1.
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Financial Statements and Reports
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(a)
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Provide annual audited FYE financial statements within 90 days after the last day of each year.
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Yes
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No
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(b)
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Provide quarterly financial statements within 30 days after the last day of each quarter.
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Yes
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No
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(c)
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Provide monthly financial statements within 30 days after the last day of each month.
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Yes
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No
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(d)
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Provide a monthly Compliance Certificate, Borrowing Base Report, inventory report, Pawn Loan report, and summary accounts receivable aging, within 30 days after the last day of each month.
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Yes
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No
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(e)
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Provide Long Term Inventory Report within 30 days after June 30 and December 31.
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Yes
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No
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(f)
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Provide other required reporting timely.
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Yes
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No
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2.
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Subsidiaries
None except as listed on Schedule 2
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Yes
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No
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3.
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Additional Indebtedness
None, except Indebtedness permitted by Section 8.1 of the Agreement.
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Yes
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No
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D-DGSE Ninth Amendment and Waiver(1975792_1) (3).DOC
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Exhibit B
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1
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4.
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Liens and Encumbrances; Negative Pledge Agreements
None at any time, except Liens permitted by Section 8.2 of the agreement
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Yes
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No
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5.
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Limitation of Acquisitions and Mergers.
None except those permitted by Section 8.3 of the Agreement.
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Yes
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No
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6.
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Dividends and Stock Repurchase.
None, except as permitted by Section 8.4 of the Agreement.
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Yes
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No
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7.
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Loans and Investments
None, except those permitted by Section 8.5 of the Agreement.
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Yes
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No
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8.
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Issuance of Equity
None, except issuances permitted by Section 8.6 of the Agreement.
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Yes
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No
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9.
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Affiliate Transactions
None, except issuances permitted by Section 8.7 of the Agreement.
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Yes
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No
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10.
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Disposal of Assets other than in the Ordinary Course of Business
(Section 8.8 of the Agreement). None at any time without prior written consent of Lender.
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Yes
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No
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11.
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Sale and Leaseback Transactions (Section 8.9 of the Agreement).
None at any time without prior written consent of Lender.
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Yes
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No
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12.
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Prepayment of Debt (Section 8.10 of the Agreement).
None at any time without prior written consent of Lender.
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Yes
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No
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13.
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Changes in Nature of Business (Section 8.11 of the Agreement).
None at any time without prior written consent of Lender.
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Yes
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No
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14.
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Environmental Laws (Section 8.12 of the Agreement).
No activity likely to cause violations.
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Yes
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No
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15.
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Changes in Fiscal Year; Accounting Practices (Section 8.13 of the Agreement).
None at any time without prior written consent of Lender.
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Yes
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No
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16.
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No Negative Pledge (Section 8.14 of the Agreement).
None.
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Yes
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No
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D-DGSE Ninth Amendment and Waiver(1975792_1) (3).DOC
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Exhibit B
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2
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17.
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Fixed Charge Coverage Ratio
Minimum of 1:40 to 1.00. (Defined as current assets divided
by current liabilities).
FCCR =($__________ - $__________ - $ __________) ÷ Debt Service ($ )
EBITDA Cash Taxes Capital Expenditures
not financed with Indebtedness permitted
under the Credit Agreement (excluding Capital Expenditures approved in writing by Lender, in its sole discretion)
** The calculation shall be based on the rolling four (4) quarter cash flow and debt service obligations of Borrower and its Subsidiaries; except that the ratio shall be computed on an annualized basis for the fiscal quarters ending June 30, 2011 and September 30, 2011.
(INCLUDE SCHEDULE A HERETO FOR ITEM 17)
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Yes
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No
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19.
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Tangible Net Worth (TNW)
Minimum of at least $15,000,000 at all times. (TNW is defined as
consolidated total stockholders’ equity plus Subordinated Debt less intangible assets).
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Yes
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No
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20.
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Leverage Ratio. Maximum of 1.00 to 1.00
________________ - _________________ ÷
Liabilities Subordinated Debt
________________ = ____________
Tangible
Net Worth
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Yes
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No
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DGSE COMPANIES, INC., a Nevada corporation
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By:
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D-DGSE Ninth Amendment and Waiver(1975792_1) (3).DOC
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Exhibit B
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3