EXHIBIT 10.17
FIFTH AMENDMENT OF LOAN AGREEMENT
THIS FIFTH AMENDMENT OF LOAN AGREEMENT ("Agreement"), executed this 18
day of August, 1999, is made and entered into effective as of June 30, 1999, by
and between SURREY, INC., ("Borrower"), a Texas corporation, and CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION ("Lender"), a national banking association.
RECITALS:
On or about April 8, 1998, Borrower and Lender entered into a Loan
Agreement providing for loans to be made to the Borrower for the purposes
provided for therein. Such Loan Agreement has previously been amended pursuant
to a First Amendment of Loan Agreement dated effective May 14, 1998, by a Second
Amendment of Loan Agreement dated effective January 25, 1999 by a Third
Amendment of Loan Agreement dated effective March 31, 1999 and by a Fourth
Amendment of Loan Agreement dated effective June 17, 1999. Such Loan Agreement,
as amended, is herein called the "Original Agreement."
The Borrower and the Lender now desire to further amend the Original
Agreement in certain respects as hereinafter provided, all as more particularly
set forth herein.
AGREEMENTS:
For and in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
1. Paragraph 10(c) of the Original Agreement is hereby amended and
restated in its entirety to hereafter be and read as follows:
"(c) Borrower and its Subsidiaries on a consolidated basis
shall have and maintain:
(1) a Current Ratio of not less than 1.25 to 1.00 as
of the end of each calendar quarter after June 30, 1999.
(2) a Debt to Tangible Net Worth Ratio not greater
than 2.25 to 1.00 as of the end of each calendar quarter after
June 30, 1999.
(3) a Debt Service Coverage Ratio of (i) not less
than 1.20 to 1.00 as of June 30, 1999, with the numerator of
the Debt Service Coverage Ratio being calculated by
multiplying EBITDA for the second calendar quarter of the 1999
calendar year by four (4) as opposed to calculating it on a
Rolling Four Quarters basis; (ii) not less than 1.20 to 1.00
as of September 30, 1999, with the numerator of the Debt
Service Coverage Ratio being calculated by multiplying EBITDA
for the second and third calendar quarters of the 1999
calendar year by two (2) as opposed to calculating it on a
Rolling Four Quarters basis; (iii) not less than 1.20
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to 1.00 as of December 31, 1999, with the numerator of the
Debt Service Coverage Ratio being calculated by multiplying
EBITDA for the second, third and fourth calendar quarters of
the 1999 calendar year by four-thirds (4/3) as opposed to
calculating it on a Rolling Four Quarters basis; and (iv) not
less than 1.20 to 1.00 thereafter, with the numerator of the
Debt Service Coverage Ratio being calculated on a Rolling Four
Quarters basis, tested for compliance on March 31, 2000 and as
of the end of each calendar quarter after March 31, 2000."
2. Exhibit C to the Original Agreement is hereby amended and restated
in its entirety to hereafter be in the form of Exhibit A attached hereto and
incorporated herein for all purposes.
3. Borrower represents and warrants that the representations and
warranties contained in Paragraph 9 of the Original Agreement and in the other
Loan Documents are true and correct in all material respects on and as of the
date thereof as though made on and as of such date. The Borrower hereby
certifies that no event has occurred and is continuing which constitutes an
Event of Default under the Original Agreement or any of the other Loan Documents
or which upon the giving of notice of the lapse of time or both would constitute
such an Event of Default, except for such Events of Default which have been
waived in writing by the Lender in connection with the execution of this
Amendment.
4. The Borrower hereby ratifies and confirms that the Security
Agreement and the Deed of Trust executed by the Borrower are in full force and
effect, and since the Security Agreement and the Deed of Trust secure any and
all indebtedness of the Borrower to the Lender now or hereafter outstanding, it
secures all amounts outstanding under the Original Agreement, as amended hereby,
including without limitation, all amounts outstanding under the Revolving Loans
and under the Advance/Term Loans.
5. Except as expressly amended hereby, the Original Agreement and the
other Loan Documents shall remain in full force and effect. The Original
Agreement, as hereby amended, and all rights and powers created thereby or
thereunder and under the other Loan Documents are in all respects ratified and
confirmed and remain in full force and effect.
6. Terms used herein which are defined in the Original Agreement or in
the other Loan Documents shall have the meanings therein ascribed to them. The
term "Loan Agreement" or "Credit Agreement" as used in the Original Agreement,
the other Loan Documents or any other instrument, document or writing furnished
to the Lender by the Borrower, when referring to the Original Agreement, shall
mean the Original Agreement as hereby amended.
7. This Agreement (a) shall be binding upon the Borrower and the Lender
and their respective successors and assigns (provided, however, that the
Borrower shall not assign his rights hereunder without the prior written consent
of the Lender); (b) may be modified or amended only by a writing signed by each
party; (c) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OR THE
STATE OF TEXAS AND THE UNITED STATES OF AMERICA; (d) may be executed in several
counterparts, and by the parties hereto on separate counterparts, constitute an
original agreement, and all such separate counterparts shall constitute but one
and the same agreement; and (e) embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, consents and
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understandings relating to such subject matter.
8. BORROWER HEREBY RELEASES, DISCHARGES AND ACQUITS FOREVER LENDER AND
ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND COUNSEL FROM ANY AND ALL CLAIMS
EXISTING AS OF THE DATE HEREOF. AS USED HEREIN, THE DEFICIENCIES, INTEREST,
LIENS, COSTS OR EXPENSES (INCLUDING BUT NOT LIMITED TO COURT COSTS, PENALTIES,
ATTORNEYS' FEES AND DISBURSEMENTS, AND AMOUNTS PAID IN SETTLEMENT) OF ANY KIND
AND CHARACTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR USURY, BREACH
OF CONTRACT, AND NEGLIGENT MISREPRESENTATION, IN EACH CASE WHETHER NOW KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, ASSERTED OR UNASSERTED OR PRIMARY OR
CONTINGENT, AND WHETHER ARISING OUT OF WRITTEN DOCUMENTS, UNWRITTEN UNDERTAKINGS
OR COURSE OF CONDUCT.
9. NOTICE PURSUANT TO TEX. BUS. & COMM. CODE SS.26.02
THIS AGREEMENT, THE ORIGINAL AGREEMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED BY ANY OF THE PARTIES TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT
WHICH 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 executed this Agreement
effective as of the day and year first above written.
SURREY, INC.
a Texas corporation
By: /s/ Xxxx van der Xxxxx
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Name: Xxxx van der Xxxxx
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Title: Vice President / CFO
---------------------------------
"Borrower"
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XXXXX XXXX XX XXXXX,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Senior Vice President
---------------------------------
"Lender"
Attach:
Exhibit A - Exhibit C to the Original Agreement
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EXHIBIT A TO FIFTH AMENDMENT
EXHIBIT C TO ORIGINAL AGREEMENT
COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is the _______________________
of Surrey, Inc. ("Borrower"), and that as such is authorized to execute this
certificate on behalf of Borrower pursuant to the Loan Agreement (as amended,
the "Loan Agreement") dated as of April 8, 1998 by and between Borrower and
Chase Bank of Texas, National Association; and that a review of Borrower has
been made under his supervision with a view to determining whether Borrower has
fulfilled all of its obligations under the Loan Agreement and the other Credit
Documents; and on behalf of Borrower further certifies, represents and warrants
as follows (each capitalized term used herein having the same meaning given to
it in the Loan Agreement unless otherwise specified):
(a) Each Obligor has fulfilled its respective obligations under the
Credit Documents.
(b) Except as described on the continuation pages attached hereto (if
any), the representations and warranties made in each Credit Document are true
and correct in all respects on and as of the time of delivery hereof, with the
same force and effect as if made on and as of the time of delivery hereof.
(c) The financial statements delivered to Lender concurrently with this
Compliance Certificate have been prepared in accordance with GAAP consistently
followed throughout the period indicated and fairly present the financial
condition and results of operations of the applicable Persons as at the end of,
and for, the period indicated.
(d) No Default has occurred and is continuing. In this regard, the
compliance with the provisions of Paragraph 10(c) of the Loan Agreement is as
follows:
SECTION 10(c)(1) - CURRENT RATIO
actual Current Ratio for Borrower as of the date hereof:
_____ :1.00
required Current Ratio for Borrower as of the date hereof:
greater than or equal to 1.25:1.00
SECTION 10(c)(2) - DEBT TO TANGIBLE NET WORTH RATIO
actual Debt to Tangible Net Worth Ratio for Borrower as of the
date hereof:
__.____ :1.00
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required Debt to Tangible Net Worth Ratio for Borrower as of
the date hereof:
less than or equal to 2.25:1.00
SECTION 10(c)(3) - DEBT SERVICE COVERAGE RATIO
actual Debt Service Coverage Ratio for Borrower as of the date
hereof:
__.____ :1.00
required Debt Service Coverage Ratio for Borrower as of the
date hereof, calculated in accordance with the provisions of
Section 10(c)(3):
greater than or equal to 1.20:1.00
[(e) Based on the actual Debt to Tangible Net Worth Ratio shown above,
the Applicable Margin to be effective after Lender's review of the Monthly
Financial Statements delivered with this Compliance Certificate is _________%.]
(e) There is no Default under Paragraph 11(j) of the Loan Agreement and
for purposes thereof the undersigned certifies as follows:
actual Capital Expenditures during the prior 12-month period:
$
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permitted Capital Expenditures during the prior 12-month
period:
less than or equal to $2,000,000.00
(f) There has occurred no material adverse change in the assets,
liabilities, financial condition, business or affairs of any Obligor since the
date of the Loan Agreement.
DATED as of _______________.
Very truly yours,
_________________________________
Print Name:______________________
_________________ of Surrey, Inc.
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