EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated
effective May 31, 2003 (the "Effective Date"), is by and between ARROW-
MAGNOLIA INTERNATIONAL, INC. ("Borrower"), and JPMORGAN CHASE BANK (the
"Bank").
PRELIMINARY STATEMENT
Bank and Borrower are parties to a Credit Agreement (with Borrowing Base)
dated as of August 5, 1994 as amended by a First Amendment to Credit Agreement
dated September 1, 1995, a Second Amendment to Credit Agreement dated December
5, 1996, a Third Amendment to Credit Agreement dated October 20, 1997, a
Fourth Amendment to Credit Agreement dated August 1, 1998 wherein the
Borrowing Base was deleted, a Fifth Amendment to Credit Agreement dated August
17, 1999, a Sixth Amendment to Credit Agreement dated May 1, 2001 and a
Seventh Amendment dated as of May 1, 2002 (the "Credit Agreement"). All
capitalized terms defined in the Credit Agreement and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement. Bank
and Borrower have agreed to amend the Credit Agreement to the extent set forth
herein, in order to, among other things renew, modify and extend the
Commitment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Bank and the Borrower hereby agree as
follows:
Section 1. Section 1.1 of the Credit Agreement entitled, "Revolving
Credit Note" is amended by substituting the following for the Section 1.1 of
the Credit Agreement:
"Subject to the terms and conditions hereof, the Bank agrees to make loans
("Loan" or "Loans") to Borrower from time to time before the Termination Date,
not to exceed at any one time outstanding for Borrower $l,250,000.00 (the
"Commitment), Borrower having the right to borrow, repay and reborrow. The
Bank and the Borrower agree that Chapter 346 of the Texas Finance Code shall
not apply to this Agreement, the Note or any Loan. The Loans shall be
evidenced by and shall bear interest and be payable as provided in the
promissory note of Borrower dated May 31, 2003 (together with any and all
renewals, extensions, modifications. replacements, and rearrangements thereof
and substitutions therefor, the "Note") which is given in renewal,
modification and extension of that certain revolving promissory note dated May
1, 2002 with a maturity date of May 1, 2003 in the original principal amount
of $1,250,000.00 (including all prior notes of which said note represents a
renewal, extension, modification, increase, substitution, rearrangement or
replacement thereof, the Renewed Note"). The purpose of the Loans in to
provide short term financing for accounts receivable and inventory."
Section 2. Section 8. Definitions. Subsection (a) of the definition of
Termination Date in the Credit Agreement is hereby amended by replacing "(a)
May 1, 2003; or" with "(a) May 31, 2005; or."
Section 3. Section 1.5 of the Credit Agreement is restated below to read
as follows:
"COMMITMENT FEE 1.5 Borrower will pay a commitment fee of $2,500.00 on or
before the date that any amendment renewing the Commitment is executed and
delivered to Bank."
Section 4. Exhibit A of the Credit Agreement is replaced with Exhibit A
attached hereto and hereby incorporated into this Amendment and the Credit
Agreement for all purposes.
Section 5. Borrower confirms and ratifies that each of the liens,
security interests and other interests granted in the Security Agreements
executed in connection with, related to, or securing the Renewed Note extend
to and secure the Loans, evidenced by the Note. The term "Security
Agreements" means the Security Agreement - Accounts and General Intangibles
and the Security Agreement - Inventory, in each case executed by Borrower as
of August 18, 1994 and any other security agreements executed by Borrower and
delivered to Bank and not released by Bank.
Section 6. The Borrower hereby represents and warrants to the Bank that
after giving effect to the execution and delivery of this Amendment (a) the
representations and warranties set forth in the Credit Agreement are true and
correct on the date hereof as though made on and as of such date; and (b) no
Event of Default, or event which with passage of time, the giving of notice or
both would become an Event of Default, has occurred and is continuing as of
the date hereof.
Section 7. This Amendment shall become effective as of the Effective
Date upon its execution and delivery by each of the parties named in the
signature lines below and the payment of the $2,500.00 commitment fee. The
"Agreement" as used in the Credit Agreement shall also refer to the Credit
Agreement as amended by this Amendment.
Section 8. The Borrower further acknowledges that each of the other Loan
Documents is in all other respects ratified and confirmed, and all of the
rights, powers and privileges created thereby or thereunder are ratified,
extended, carried forward and remain in full force and effect except as the
Credit Agreement is amended by this Amendment.
Section 9. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each or which when
so executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
Section 10. This Amendment shall be included within the definition of
"Loan Documents" as used in the Agreement.
Section 11. THIS AMENDMENTT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE THE LAWS OF
THE UNITED STATES OF AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE
CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWER:
ARROW MAGNOLIA INTERNATIONAL, INC
By
Title
Address
BANK
XX XXXXXX XXXXX BANK
By
Title
Address
EXHIBIT B
Compliance Certificate
ARROW-MAGNOLIA INTERNATIONAL, INC.
FOR THE PERIOD ENDING
The undersigned officer of Arrow-Magnolia International, Inc., (the
"Borrower") does hereby certify that the following covenants and financial
tests, as defined in that certain Credit Agreement dated June 29, l994, as
amended from time to time (the "Credit Agreement"), executed by Borrower and
JPMorgan Chase Bank (the "Bank") are as follows:
In Compliance
(Please indicate)
I. 1. Financial Statements and Reports
(i) Annual CPA audited FYE financial statements
within 90 days after the end of each fiscal year
of Borrower together with Compliance Certificate Yes No
(ii) Quarterly unaudited financial statements
within 45 days of each fiscal quarter end of
Borrower, excluding the final fiscal quarter end
of Borrower's fiscal year together, with this
Comp1iance Certificate Yes No
2- 2. Financial Covenants
(a) Maintain a Current Ratio of at least 4.00 to 1.00.
$_________ / $________ = $ ____________
Current Assets Current Liabilities Current Ratio
(b) Maintain a ratio of total Indebtedness as adjusted to Tangible Net Worth
as adjusted of not more than 1.0 to 1.0.
Liabilities (GAAP) $
Plus
Contingent Obligations $
Liens on Borrower's Property
not included in Borrower's
liabilities
Minus- Subordinated Debt $
Equals: Indebtedness as adjusted $
Stockholders' Equity $
Minus: Goodwill $
Otter Intangible Assets $
Loans/Advances to
Equity holders $
Loans to Affiliates $
Plus: Subordinated Debt $
Equals:
Tangible Net Worth
as adjusted $
$ / $ =
Indebtedness (adjusted) TNW (adjusted) Ratio
THE ABOVE SUMMARY REPRESENTS ONLY A SMALL PORTION OF THE COVENANTS AND
AGREEMENTS CONTAINED IN THE AGREEMENT
AND DOES NOT IN ANY WAY RESTRICT OR MODIFY THE TERMS AND CONDITIONS OF THE
AGREEMENT. IN CASE OP CONFLICT
BETWEEN THIS EXHIBIT B AND THE AGREEMENT, THE AGREEMENT SHALL CONTROL.
The undersigned hereby certifies that the above information and computations
are true and correct and not misleading as of the date hereof, and that no
Default or Event of Default has occurred and is continuing.
Executed this _____________ day of _______________ 200
COMPANY NAME: ARROW- MAGNOLIA INTERNATIONAL. INC.
SIGNATURE:
NAME:
TITLE:
ADDRESS:
REVOLVING PROMISSORY NOTE
(FLOATING RATE)
THIS NOTE IS SUBJECT TO A CREDIT AGREEMENT.
THIS NOTE IS SECURED BY ALL SECURITY AGREEMENTS COVERING PERSONAL PROPERTY
EXECUTED BY BORROWER(S) IN FAVOR OF BANK BEFORE OR AT SAME TIME AS THIS NOTE.
THIS IS A RENEWAL EXTENSION, MODIFICATION, OR DEFERRAL OF NOTE 4008-
0080047647-000002
NAME(S) AND ADRESSES OF BORROWER(S) ("Borrower")
ARROW-MAGNOLIA INTERNATIONAL, INC.
0000 XXXXXX XX
XXXXXX XX 00000
U.S. $1,250,000.00
May 31, 2003 (the "Date")
ACCOUNT NUMBER/NOTE NUMBER 4008-0080047647-000002
TRANSACTION CODE
PREPARED BY XXXXX X. XXXXX
OFFICER 226199
FOR VALUE RECEIVED, Borrower (jointly and severally of more than one),
promises to pay it the order of
XX XXXXXX XXXXX ("Bank")
on or before May 31, 2005, at its offices at
000 XXXX XXXXXXX XXXXX 00000-0000
or at such other location as Bank may designate, inmmediately available funds,
XXX XXXXXXX XXX XXXXXXX XXXXX XXXXXXXX XXX XX/000
XXXXXX XXXXXX DOLLARS (U.S. $1,250,000) (the 'Maximum Amount of Note") or the
aggregate unpaid amount of all advances hereunder, whichever is less. Borrower
will also pay interest on the unpaid principal balance outstanding from time
to time at a rate per annum equal to the lesser of (i) the sum of the Prime
Rate (as hereinafter defined) from time to time in effect plus ZERO AND 0/100
percent (0.000%) (the "Stated Rate") or (ii) the maximum nonusurious rate of
interest from time to time permitted by applicable law, (the "Highest Lawful
Rate"). If the Stated Rate at any time exceeds the Highest Lawful Xxxx, the
actual rate of Interest to accrue on the unpaid principal amount of this Note
will be limited to the Highest Lawful Rate, but any subsequent reductions in
the Stated Rate due to reductions in the Prime Rate will not reduce the
interest rate payable upon the unpaid principal amount of this Note below the
Highest Lawful Rate until the total amount of interest accrued or this Note
equals the amount of interest which would have accrued if the Stated Rate had
at all times been in effect.
"Prime Rate" means the rate determined from time to time by Bank as its prime
rate. The Prime Rate will change automatically from time to time without
notice to Borrower or any other person. THE PRIME RATE IS A REFERENCE RATE AND
MAY NOT BE BANK'S LOWEST RATE.
To the extent that Texas lew determines the Highest Lawful Rate, the Highest
Lawful Rate is the "weekly" rate ceiling as defined in the Texas Finance Code
Chapter 302. Bank may from time to time, as to current and future balances,
elect end implement any other ceiling under such Code and/or revise the index,
formula or provisions of law used to compute the rate on this open-end account
by notice to Borrower, if and to the extent permitted by, and in the manner
provided in such Code.
Each advance must be at least
n/a
UNITED STArES DOllARS (U.S. $ n/a) unless the amount available for borrowing
under this Note it less.
Accrued and unpaid interest is due end payable Quarterly, beginning on August
31, 2003, and continuing on the Last day of each Quarter thereafter and at
maturity when all unpaid principal and accrued and unpaid interest is finally
due and payable.
Interest will be computed on the basic of the actual number of days elapsed
and a year comprised of / / 365 (or 366 as the case may be) days /X/ 360 days,
unless such calculation would result in a usurious interest rate, in which
case such interest will be calculated on the basis of a 365 or 366 day year,
at the case may be.
All past-due principal and interest on this Note will, at Bank's option, bear
interest at the Highest Lawful Rate, or if applicable law does not provide for
a maximum nonusurious rate of interest, at a rate per annum equal to 18%.
In addition to all principal and accrued interest on this Note, Borrower
agrees to pay: (a) all reasonable costs and expenses incurred by Bank and all
owners and holders or this Note in collecting this Nets through probate,
reorganization, bankruptcy or any other proceeding; and all reasonable
attorneys' fees if and when this Note is placed in the hands of attorneys for
collection.
Borrower and Bank intend to conform strictly to applicable usury laws.
Therefore, the total amount of interest (as defined under applicable law)
contracted for, charged or collected under this Note will never exceed the
Highest Lawful Rate. If Bank contracts for, charges or receives any extra
interest, it will be deemed a mistake. Bank will automatically reform the
contract or charge to conform to applicable law, and if excess interest has
been received, Bank will either refund the excess to Borrower or credit the
excess on the unpaid principal amount of this Note. All amounts constituting
interest will be spread throughout the full term of this Note in determining
whether interest exceeds lawful amounts.
The unpaid principal balance of this Note at any time will be the total
amounts advanced by Bank, less the amount of all payments or prepayments of
principal. Absent manifest error, the records of Bank will be conclusive as to
amounts owed. Subject to the terms and conditions of this Note and the Loan
Documents, Borrower may use all or any part of the credit provided for herein
at any time before the maturity of this Note and may borrow, repay and
reborrow. There is no limitation on the number of advances made so long as the
total unpaid principal amount at any time outstanding does not exceed the
Maximum Amount of Note.
Borrower may at any time pay the full amount or any part of this Note without
the payment of any premium or fee. Any partial prepayment will be in the
amount of U.S. n/a (U.S. n/a), or an integral multiple thereof. All payments
may, at Bank's sole option, be applied to accrued interest, to principal, or
to both.
"Loan Document" meant this Note and any document or instrument evidencing,
securing, guaranteeing or given in connection with this Note. "Obligations"
means all principal, interest and other amounts which are or become owing
under this Note or any other Loan Document. "Obligor" means Borrower and any
guarantor, surety, co-signer, general partner or other person who may now or
hereafter be obligated to pay all or any part of the Obligations. Where
appropriate the neuter gender includes the feminine and the masculine and the
singular number includes the plutal number.
Each of the following events or conditions is an "Event of Default:" (1) any
Obligor fails to pay any of the Obligations when due; (2) any warranty,
representation or statement now or hereafter contained in or made in
connection with any Loan Document was false or misleading in any respect when
made; (3) any Obligor violates any covenant, condition or agreement contained
in any Loan Document; (4) any Obligor fails or refuses to submit financial
information requested by Bank or to permit Bank to inspect its books and
records on request; (5) any event of default occurs under any other Loan
Document; (6) any individual Obligor dies, or any Obligor that is an entity
dissolves; (7) a receiver, conservator or similar official is appointed for
any Obligor or any Obligor's assets; (8) any petition is filed by or against
any Obligor under any bankruptcy, insolvency or similar law; (9) any Obligor
makes an assignment for the benefit of creditors; (10) a final judgment is
entered against an Obligor and remains unsatisfied for 20 days after entry,
or any property of any Obligor is attached, garnished or otherwise made
subject to legal process; (11) any material adverse change occurs in the
business, assets, affairs or financial condition of any Obligor; or (12)
Borrower is in default of any other obligation to or any other agreement with
Bank.
If any Event of Default occurs, then Bank may do any or all of the following:
(i) cease making advances hereunder; (ii) declare the Obligations to be
immediately due and payable, without notice or acceleration or of intention to
accelerate, presentment and demand or protest or notice of any kind, all of
which are hereby expressly waived; (iii) set off, in any order, against the
Obligations any debt owing by Bank to any Obligor, including, but not limited
to, any deposit account, which right is hereby granted by each Obligor to
Bank; and (iv) exercise any and all other rights under any Loan Document, at
law, in equity or otherwise.
No waiver at any default is a waiver of any other default. Bank's delay in
exercising any right or power under any Loan Document is not a waiver of such
right or power.
Each Obligor severally waives notice demand, presentment for payment, notice
of nonpayment, notice of intent to accelerate, notice or acceleration,
protest, notice of protest, and the filing of suit and diligence in collecting
this Note and all other demands and notices, and consents and agrees that its
liabilities and obligations will not be released or discharged by any or all
of the following, whether with or without notice to it or any other Obligor,
and whether before or after the stated maturity hereof: (i0 extension of the
time of payment; (ii) renewals; (iii) acceptances of partial payments; (vi)
releases or substitutions of any collateral or any Obligor; or (v) failure, if
any, to perfect or maintain perfection of any security interest or lien in any
collateral. Each Obligor agrees that acceptance of any partial payment will
net constitute a waiver and that waiver of any default will not constitute
waiver of any prior or subsequent default. Nothing in this Note is intended to
waive or vary the duties of Bank or the rights of any Obligor in violation or
Section 9.602 of the Texas Business and Commerce Code.
Borrower represents and agrees that all advances evidenced by this Note are
and will be for business, commercial, investment, agricultural or other
similar purpose and not primarily for personal, family, or household use.
Borrower represents and warrants that the following statement is true unless
the box preceding that statement is checked and initialed by Borrower and Bank
/ / No advances will be used for the purpose of purchasing or carrying any
margin stock as that term is defined in Regulation U of the Board of Governors
of the Federal Reserve System (the "Board").
Notwithstanding anything contained herein or in any other Loan Document, if
this is a consumer credit obligation as defined or described ii 12 C.F.R. 227,
Regulation AA, promulgated by the Board, the security for this credit
obligation will not extend to any nonpossessory security interest in household
goods (as defined in Regulation AA) other then a purchase money security
interest, and no waiver of any notice contained herein or therein will extend
to any waiver of notice prohibited by regulation AA.
Texas Finance Code Chapter 346 shall not apply to this Note or to any advance
evidenced by this Note.
This Note is governed by Texas law. If any provision of this Note is illegal
on unenforceable, that illegality or unenforceability shall not affect the
remaining provisions of this Note. BORROWER(S) AND BANK AGREE THAT THIS NOTE
WILL BE PEFORMED IN THE COUNTY IN WHICH BANK'S PRINCIPAL OFFICE IN TEXAS IS
LOCATED, AND THAT SUCH COUNTY IS PROPFR VENUE FOR ANY ACTION OR PROCEEDING
BROUGHT BY BORROWER(S) OR BANK, WHETHER IN CONTRACT, TORT, OR OTHERWISE. ANY
ACTION OR PROCEEDING AGAINST BORROWER(S) MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT IN SUCH COUNTY TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BOBROWER(S) HEREBY IRREVOCABLY (A)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT
FORUM. BORROWER(S) AGREES THAT SERVICE OF PROCEBS UPON IT MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS
SPECIFIED ABOVE. BANK MAY SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
AND MAY BRING ANY ACTION OR PROCEEDING AGAINST BORROWER(S) OR WITH RESPECT TO
ANY OF ITS PROPERTY IN COURTS IN OTHER PROPER JURISDICTIONS OR VENUES.
For purposes of this Note, any assignee or subsequent holder of this Note
will be considered "Bank," and each successor to Borrower shall be considered
"Borrower."
Each Borrower and cosigner represents that if it is not a natural person,
it is duly organized and validly existing and in good standing under the laws
of the state of its incorporation or organization; has full power to own its
properties and to carry on its business as now conducted; is duly qualified to
do business and is in good standing in each jurisdiction in which the nature
of the business conducted by it makes such qualification desirable: end it has
not commenced any dissolution proceedings. Each Borrower end cosigner that is
subject to the Texas Revised Partnership Act ("TRPA") agrees that Bank is not
required to comply with Section 3.05(d) of the TRPA and agrees that Bank may
proceed directly against one or more partners or their property without first
seeking satisfaction from partnership property. Each Borrower and cosigner
represents that if it conducts business under an assumed business or
professional name it has properly filed Assumed Name Certificate(s) in the
office(s) required by Chapter 36 of the Texas Business and Commerce Code. Each
of the persons signing below as Borrower or cosigner represents that he/she
has full requisite power and authority to execute and deliver this Note to
Bank on behalf of the party for whom he/she signs and to bind such party to
the terms end conditions of this Note and that this Note is enforceable
against such party.
JURY TRiAL WAIVER. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, BORROWER
AND BANK HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO
TRIAL BY JURY THAT BORROWER OR BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN
LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR THE OBLIGATIONS. BORROWER
REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WILL NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER. BORROWER
ACKNOWLEDGES THAT BANK HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE PROVISIONS OF THIS WAIVER.
NO COURSE OF DEALING BETWEEN BORROWER AND BANK, NO COURSE OF PERFORMANCE, NO
TRADE PRACTICES, AND NO EXTRINSIC EVIDENCE OF ANY NATURE MAY BE USED TO
CONTRADICT OR MODIFY ANY TERM OF THIS NOTE OR ANY OTHER LOAN DOCUMENT.
THIS NOTE AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES 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.
IN WITNESS WHEREOF, Borrower has executed this Note effective as of May 31,
2003.
Signatures of BORROWER(S):
ARROW-MAGNOLIA INTERNATIONAL, INC.
BY: TITLE:
(Bank's signature is provided as its acknowledgment of the above as the final
written agreement between the parties and as its agreement with each Borrower
subject to TRPA that Bank is not required to comply with Section 3.05(d) of
TRPA and its agreement with the Jury Trial Waiver.)
BANK: JPMORGAN CHASE BANK
By:
Title:
