Current Report Filing (8-k)
October 05 2017 - 4:07PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The
Securities Exchange Act of 1934
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September 27, 2017
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Date of Report (Date of earliest event reported)
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Excel Corporation
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(Exact name of registrant as specified in its charter)
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Delaware
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333-173702
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27-3955524
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(State or other
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(Commission File Number)
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(IRS Employer
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jurisdiction of incorporation)
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Identification No.)
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6363 North State Highway 161, Suite 310
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Irving, Texas 75038
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(Address of principal executive offices) (Zip Code)
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(972) 476-1000
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(Registrant’s telephone number, including area code)
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Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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Item
2.04.
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Triggering
Events That Accelerate or Increase a Direct Financial Obligation under an Off-Balance
Sheet Arrangement.
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As
previously disclosed, on May 5, 2017, Excel Corporation (the “Company”) received a written notice (the “Notice”)
from GACP Finance Co, LLC (“GACP”) that the Company was in default under the terms of that certain Loan and Security
Agreement dated November 2, 2016, among GACP, as agent, the lenders party thereto, the Company, as borrower, and certain subsidiaries
of the Company as guarantors (the “Original Loan Agreement”) and the First Amendment and Waiver to Loan and Security
Agreement, entered into as of January 26, 2017 (the “Amendment” and, together with the Original Loan Agreement, the
“Loan Agreement”). GACP stated in the Notice that the Company was in default under the Loan Agreement for failure
to perform certain covenants and conditions under the Loan Agreement, including, without limitation, (i) the Company’s obligations
to file a proxy statement providing for the appointment of an independent member to the Company’s Board of Directors (the
“Board”), (ii) the Company’s failure to meet the minimum liquidity requirements set forth in the Loan Agreement
as of March 31, 2017 and (iii) the Company’s failure to maintain certain EBITDA levels required under the Loan Agreement.
Pursuant to the Notice, GACP terminated its commitment to lend or extend credit under the Loan Agreement and, as a result of the
default, GACP may declare all amounts under the Loan Agreement due and payable.
On
September 27, 2017, the Company received a supplemental notice from GACP, pursuant to
which GACP demanded immediate payment from the Company of all obligations owing to the lenders under the Loan Agreement and served
notification on the Company of GACP’s intended disposition of collateral pursuant to the terms of the Loan Agreement, such
collateral consisting of equity interests in each of the Company’s wholly-owned subsidiaries.
As
of the date of this Current Report on Form 8-K, the principal due under the Loan Agreement is $13,534,713.51.
The
foregoing description of the Original Loan Agreement is not complete and is qualified in its entirety by reference to the full
text of the Original Loan Agreement, a copy of which is filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K
dated November 2, 2016 and incorporated by reference herein. The foregoing description of the Amendment is not complete and is
qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 10.2 hereto and
incorporated by reference herein.
The
Company is currently in discussions with GACP regarding a forbearance agreement. There can be no assurances that the Company will
be able to enter into a forbearance agreement with GACP.
On
September 27, 2017, the Board approved the formation of a Governance Committee of the Board, consisting initially of Ruben Azrak
and David Shweky (the “Governance Committee”).
As
previously disclosed, on August 10, 2017, the Board set September 28, 2017 as the date of the Company’s 2017 Annual Meeting
of Stockholders (the “Annual Meeting”). On September 27, 2017, the Board acted to postpone the Annual Meeting until
the date and time to be determined by the Governance Committee.
Item
9.01.
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Financial
Statements and Exhibits.
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(d)
Exhibits
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Exhibit Number
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Description
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10.1
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Loan and Security Agreement dated November 2, 2016 among GACP Finance Co., LLC, as Agent, the Lenders as time to time party thereto, as lenders, Excel Corporation, as Borrower, and certain subsidiaries of Borrower, as Guarantors (filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K dated November 2, 2016 and incorporated by reference herein).
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10.2
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First Amendment and Waiver to Loan and Security Agreement, dated as of January 26, 2017, among GACP Finance Co., LLC, as Agent, the lender signatories thereto, as lenders, Excel Corporation, as Borrower, and certain other persons party thereto.
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SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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EXCEL CORPORATION
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Date: October 5, 2017
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By:
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/s/ Joni R. Floyd
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Name:
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Joni R. Floyd
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Title:
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President and Chief Executive Officer
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EXHIBIT
INDEX
Exhibit Number
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Description
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10.1
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Loan and Security Agreement dated November 2, 2016 among GACP Finance Co., LLC, as Agent, the Lenders as time to time party thereto, as lenders, Excel Corporation, as Borrower, and certain subsidiaries of Borrower, as Guarantors (filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K dated November 2, 2016 and incorporated by reference herein).
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10.2
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First Amendment and Waiver to Loan and Security Agreement, dated as of January 26, 2017, among GACP Finance Co., LLC, as Agent, the lender signatories thereto, as lenders, Excel Corporation, as Borrower, and certain other persons party thereto.
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5
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