EXHIBIT 10.30
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FIRST AMENDMENT 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
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Dated as of December 28, 2000
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THIS FIRST AMENDMENT AGREEMENT dated as of December 28, 2000 (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 (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, prepay a portion of the Loans and to amend certain
covenants;
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 Stock Pledge 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 June 30, 2001, of not less than 1.05 to
1.00, and (iii) during the period commencing on the July 1, 2001
through the Stated Maturity Date, of not less than 1.15 to 1.00."
(b) Section 1.1 (Defined Terms) of the Agreements is hereby amended by
adding the following definitions in the proper alphabetical order:
"`FIRST AMENDMENT' means the First Amendment Agreement dated as of
December 28, 2000 between the Borrower and the Lender."
"`FIRST AMENDMENT EFFECTIVE DATE' means the date the conditions set
forth in Section 3 of the First Amendment are satisfied or waived by
the Lender."
(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 June 30,
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 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; or
(iii) if, during the period commencing on the July 1, 2001 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."
SECTION 2. PREPAYMENT. (A) The Lender hereby consents to the Borrower
prepaying $729,094.77 of the Loans (the "PREPAYMENT"), which will be applied to
pay in full (after applying the scheduled payment by ACH in January 2001) the
outstanding Notes relating to the following pledged stores (i) unit #332 in
Walnut Creek, California, (ii) unit #349 in Los Altos, California, (iii) unit
#391 in Eugene, Oregon, (iv) unit #490 in Corvallis, Oregon, (v) unit #393 in
Portland (1), Oregon, (vi) ▇▇▇▇ #▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ (▇), ▇▇▇▇▇▇, and (vii) unit
#495 in
Beaverton, Oregon (collectively, the "RELEASED STORES").
(B) 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 First Amendment Effective Date; PROVIDED, HOWEVER,
that if either the Borrower and/or the Guarantor enters into a contract to sell
all of the assets or capital stock of the Borrower, as the case may be, on or
before June 30, 2001 and such agreement is satisfactory to the Lender, then
$30,000 of the Premium shall be applied by the Lender to prepay, without penalty
or premium, the Loans on a PRO RATA basis.
(C) As soon as practicable after the First Amendment Effective Date, the
Lender shall execute and deliver to the Borrower, at the Borrower's expense,
such instruments 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 "FIRST 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 Premium referred to in Section 2(B)
hereof and 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 his respective obligations under this Amendment and the other Loan
Documents to which it 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 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 hereby, the Agreements and all other
Loan Documents, and all other documents, agreements, instruments or writings
entered into in 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(B) 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.
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: Manager
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
