Exhibit 10.25
EIGHTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS EIGHTH AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT
(the "Amendment") is made effective as of February 28, 2001 by and among TODAY'S
MAN, INC., a Pennsylvania corporation ("Borrower"); each of the Subsidiaries of
the Borrower identified under the caption "Guarantor" on the signature pages of
this Amendment (individually, a "Guarantor" and, collectively, the
"Guarantors"); each of the financial institutions identified under the caption
"Lenders" on the signature pages of this Amendment (including without limitation
Mellon in such capacity) (individually, a "Lender" and, collectively, the
"Lenders"); and MELLON BANK, N.A., a national banking association, as agent for
the Lenders (in such capacity, together with its successors in such capacity,
the "Agent").
BACKGROUND
A. Borrower, Guarantors, Lender and Agent previously entered into a
certain Loan and Security Agreement dated December 4, 1998, as amended by (i)
that certain First Amendment and Modification to Loan and Security Agreement
dated Xxxxx 00, 0000, (xx) that certain Second Amendment and Modification to
Loan and Security Agreement dated October 13, 1999, (iii) that certain Third
Amendment and Modification to Loan and Security Agreement dated March 15, 2000,
(iv) that certain Fourth Amendment and Modification to Loan and Security
Agreement dated May 1, 2000, (v) that certain Fifth Amendment and Modification
to Loan and Security Agreement dated May 11, 2000, (vi) that certain Sixth
Amendment and Modification to Loan and Security Agreement dated August 16, 2000,
and (vii) that certain Seventh Amendment and Modification to Loan and Security
Agreement dated November 15, 2000 (collectively, the "Loan Agreement"), pursuant
to which, inter alia, Lender agreed to extend to Borrower a revolving credit
facility up to a maximum outstanding principal amount of Thirty Million Dollars
($30,000,000.00).
B. Borrower, Guarantors, Lender and Agent are entering into this
Amendment to amend certain terms and conditions of the Loan Agreement.
C. Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth for such terms in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Tangible Net Worth. Section 13.1 of the Loan Agreement shall be and
is hereby amended to read in its entirety as follows:
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"13.1. Tangible Net Worth. Borrower will
maintain Tangible Net Worth of not less than the following
amounts for the following periods:
Amount Periods
------ -------
$29,900,000.00 as of December 30, 2000 and at all
times thereafter until February 2,
2001;
$25,077,000.00 as of February 3, 2001 and at all
times thereafter until March 2, 2001;
$23,576,000.00 as of March 3, 2001 and at all times
thereafter until April 6, 2001;
$23,611,000.00 as of April 7, 2001 and at all times
thereafter until May 4, 2001;
$22,761,000.00 as of May 5, 2001 and at all times
thereafter until June 1, 2001;
$23,505,000.00 as of June 2, 2001 and at all times
thereafter until July 6, 2001;
$23,074,000.00 as of July 7, 2001 and at all times
thereafter until August 3, 2001;
$21,882,000.00 as of August 4, 2001 and at all times
thereafter until August 31, 2001;
$20,959,000.00 as of September 1, 2001 and at all times
thereafter until October 5, 2001;
$20,863,000.00 as of October 6, 2001 and at all times
thereafter until November 2, 2001;
$21,135,000.00 as of November 3, 2001 and at all
times thereafter until November 30, 2001;
$21,801,000.00 as of December 1, 2001 and at all
times thereafter until January 4, 2002;
$23,295,000.00 as of January 5, 2002 and at all
times thereafter until February 1, 2002;
$23,911,000.00 as of February 2, 2002 and at all
times thereafter.
Borrower agrees that the Tangible Net Worth covenant
compliance amounts set forth in this Section 13.1 are based on
projections delivered to Agent by Borrower dated January 16,
2001. Borrower further agrees that in the event that
Borrower's audited financial statements for its fiscal year
ending February 2, 2001 indicate that Borrower's Tangible Net
Worth is greater than $26,077,000.00 for the period ending
February 3, 2001, Agent and Lender, in their sole discretion,
may amend and restate, in its entirety, the Tangible Net Worth
covenant compliance amounts set forth in this Section 13.1."
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2. Indebtedness to Tangible Net Worth. Section 13.2 of the Loan
Agreement shall be and is hereby amended to read in its entirety as follows:
"13.2. Indebtedness to Tangible Net Worth Ratio.
Borrower will maintain a ratio of Indebtedness (excluding any
Subordinated Indebtedness) to Tangible Net Worth of not more
than (i) 1.45 to 1.0 as of December 30, 2000 and all times
thereafter through February 2, 2001, (ii) 1.75 to 1.0 as of
February 3, 2001 and all times thereafter until Xxxxx 0, 0000,
(xxx) 2.00 to 1.0 as of March 3, 2001 and at times thereafter
through May 4, 2001, (iv) 2.20 to 1.0 as of May 5, 2001 and at
times thereafter through June 1, 2001, (v) 2.00 to 1.0 as of
June 2, 2001 and at times thereafter through August 31, 2001,
(vi) 2.25 to 1.0 as of September 1, 2001 and at all times
through January 4, 2002, (vii) 1.80 to 1.0 as of January 5,
2002 and at all times thereafter through February 1, 2002, and
(viii) 1.60 to 1.0 as of February 2, 2002 and at all times
thereafter."
3. Capital Expenditures. Section 13.3 of the Loan Agreement shall be
and is hereby amended to read in its entirety as follows:
"13.1. Capital Expenditure. Borrower will not cause,
suffer or permit Borrower's aggregate annual Capital
Expenditures to exceed the following amounts for the following
periods:
Amount Periods
------ -------
$7,500,000.00 for the Fiscal Year ending February2,
2001
$1,000,000.00 for the Fiscal Year ending February 1,
2002 for each fiscal year-end thereafter"
4. Fixed Charge Coverage Ratio Waiver. Agent agrees to waive Borrower's
compliance with the Fixed Charge Coverage Ratio covenant set forth in Section
13.4 of the Loan Agreement for the period ending February 3, 2001. Such waiver
shall be limited to Borrower's compliance with the Fixed Charge Coverage Ratio
covenant solely for the period ending February 3, 2001 and for no other period
and such waiver shall not be construed to constitute a waiver of Borrower's or
any Guarantor's compliance with any other terms of the Loan Documents or an
agreement to enter into any future waivers with Borrower or any Guarantor.
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5. Net Income / Net Loss Waiver. Agent agrees to waive Borrower's
compliance with the Net Income/Net Loss covenant set forth in Section 13.5 of
the Loan Agreement for the period ending February 3, 2001. Such waiver shall be
limited to Borrower's compliance with the Net Income/Net Loss covenant solely
for the period ending February 3, 2001 and for no other period and such waiver
shall not be construed to constitute a waiver of Borrower's or any Guarantor's
compliance with any other terms of the Loan Documents or an agreement to enter
into any future waivers with Borrower or any Guarantor.
6. Net Income / Net Loss. Section 13.5 of the Loan Agreement shall be
and is hereby amended to read in its entirety as follows:
"13.5. Net Income / Net Loss. Borrower will maintain
a level of Net Income / Net Loss of not less than the
following amounts for the following periods (where a loss is
indicated, such loss shall not be greater than the indicated
amount):
Amount Period
------ ------
($2,150,000.00) For the fiscal month ending March 3, 2001
($250,000.00) For the fiscal month ending April 7, 2001
($1,350,000.00) For the fiscal month ending May 5, 2001
($1,000,000.00) For the fiscal month ending June 2, 2001
($1,000,000.00) For the fiscal month ending July 7, 2001
($1,700,000.00) For the fiscal month ending August 4, 2001
($1,425,000.00) For the fiscal month ending September 1, 2001
($1,000,000.00) For the fiscal month ending October 6, 2001
and for each fiscal month end thereafter
7. Amendment and Restatement of Financial Covenants. Borrower agrees
that Agent and Lender may amend and restate in its entirety the financial
covenants set forth in Article 13 of the Loan Agreement, in their sole
discretion, at such time as Borrower obtains any New Capital Funds. Borrower
agrees to execute and deliver to Agent an amendment to the Loan Agreement
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evidencing such amendment and restatement of the financial covenants in form and
content acceptable to Agent.
8. Maximum Revolving Credit Facility Amount. Effective as of the date
hereof, the Maximum Revolving Credit Facility Amount will be $28,000,000.
Accordingly, effective as of the date hereof, the definition of "Maximum
Revolving Credit Facility" in Section 1.1 of the Loan Agreement is amended to
read, in its entirety, as follows:
"Maximum Revolving Credit Facility Amount means $28,000,000."
Borrower agrees to execute and deliver to Agent on or before the date
hereof a replacement Note in the aggregate amount of the revised Maximum
Revolving Credit Facility Amount, which replacement Note is given in
substitution and replacement for the existing Note and not in payment or
satisfaction of such existing Note. Such replacement Note shall be in form and
content acceptable to Agent. All references to Notes in the Loan Documents shall
be deemed to be references to the replacement Note. Upon receipt of the original
signed replacement Note by the Lender, the Lender will return to Borrower the
prior Note marked "Replaced" or "Substituted".
9. Interest Rate. (a) General. Notwithstanding anything to the contrary
contained in the Loan Agreement or the Notes, effective as of the date hereof
and at all times hereafter, the "Base Rate plus Applicable Margin" as such term
is used in the Loan Agreement shall equal at all times one and one-eighth
percent (1 1/8%) in excess of the Base Rate in effect from time to time, each
change to take effect simultaneously with a corresponding change in the Base
Rate without notice to Borrower. Agent and Lender agree that upon receipt of New
Capital Funds by Borrower in an amount at least equal to $17,000,000 (net of
customary transaction costs) and absent a Default or an Event of Default, the
"Base Rate plus Applicable Margin" as such term is used in the Loan Agreement
shall equal at all times one-half percent (1/2%) in excess of the Base Rate in
effect from time to time, each change to take effect simultaneously with a
corresponding change in the Base Rate without notice to Borrower. Interest will
be charged monthly in arrears and calculated on the basis of a 360 day year.
(b) LIBOR Rate Option. Notwithstanding anything to the contrary
contained in the Loan Agreement, Borrower agrees that Borrower shall have no
right to elect that any sums outstanding under the Notes may accrue interest at
the LIBOR Rate plus Applicable Margin. Notwithstanding the foregoing, Agent and
Lender agree that upon receipt of New Capital Funds by Borrower in an amount at
least equal to $17,000,000 (net of customary transaction costs) and absent a
Default or an Event of Default, Borrower shall have the right to elect that sums
outstanding under the Notes accrue interest at the LIBOR Rate plus Applicable
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Margin, provided that the Applicable Margin for such LIBOR Rate Loans shall
equal three percent (3%) per annum in excess of the LIBOR Rate. All other
limitations and requirements set forth in the Loan Agreement for LIBOR Rate
Loans shall continue for any new permitted LIBOR Rate Loans under this Section.
10. Permitted Out-Of-Formula Advances and Usage. Notwithstanding
anything to the contrary contained in the Loan Agreement, Borrower may exceed
the formula availability calculated pursuant to Sections 2.1 and 2.3 of the Loan
Agreement by an amount not to exceed (i) $2,000,000.00 for the period commencing
on the date hereof and ending on May 15, 2001, (ii) $1,250,000.00 for the period
commencing on May 16, 2001 and ending on June 15, 2001, (iii) $0 for the period
commencing on June 16, 2001 and ending on August 4, 2001, (iv) $2,000,000.00 for
the period commencing on August 5, 2001 and ending on November 3, 2001, (v)
$1,500,000.00 for the period commencing on November 4, 2001 and ending on
November 30, 2001, (vi) $1,000,000.00 for the period commencing on December 1,
2001 and ending on December 20, 2001, and (vii) $500,000.00 for the period
commencing on December 21, 2001 and ending on December 30, 2001. During the
period commencing on June 16, 2001 through and including August 4, 2001 and on
December 31, 2001, all Out-Of-Formula Advances must be repaid in full. In no
event shall the outstanding Revolving Credit Facility Usage (including the
permitted Out-Of-Formula Advances described above) exceed $28,000,000 at any
time after the date hereof. For purposes of this Amendment and the Loan
Agreement "Out-Of-Formula Advances" shall be redefined to mean the amount by
which the then existing Revolving Credit Facility Usage exceeds the then
applicable Borrowing Base. Upon the occurrence of a Default or an Event of
Default under the Loan Documents, at the Agent's option, Borrower will repay in
full all Out-Of-Formula Advances.
11. Fees. Borrower agrees to pay to Agent (for the benefit of Lender)
certain fees in connection with Agent and Lender entering into this Amendment.
12. Confirmation of Collateral. Nothing contained herein shall be
deemed to be a compromise, satisfaction, accord and satisfaction, novation or
release of any of the Loan Documents, or any rights or obligations thereunder,
or a waiver by Agent or any Lender of any of its rights under the Loan Documents
or at law or in equity. All liens, security interest, rights and remedies
granted to Agent or Lenders in Loan Documents are hereby ratified, confirmed and
continued. Borrower and Guarantors acknowledge and agree that the term "Loan
Documents" as used in the Loan Agreement and any other documents executed in
connection therewith shall include, without limitation, this Amendment and any
and all other documents executed in connection herewith.
13. Challenge to Enforcement. Borrower and Guarantors acknowledge and
agree that they do not have any defense, set-off, counterclaim or challenge
against the payment of any sums owing under the Loan Documents, or the
enforcement of any of the terms or conditions thereof.
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14. Representation and Warranties. Borrower and Guarantors hereby
represent and warrant, which representations and warranties shall survive until
all Obligations are paid and satisfied in full, as follows:
(a) All representations and warranties of Borrower and Guarantors
set forth in the Loan Documents are true and complete in all material respects
as of the date hereof.
(b) Upon the effectiveness of this Amendment, no condition or event
exists or has occurred which would constitute an event of default under the Loan
Documents or under any other material agreement between Borrower, any Guarantor
and any other third party (or would, upon the giving of notice or the passage of
time, or both constitute an event of default).
(c) Except as otherwise previously disclosed to Agent in writing,
Borrower has not received any notice of default or event of default from any
other lender, trustee or lessor with respect to any other loan, financing or
lease agreement, which would be required to be disclosed to Agent or Lenders
under the terms of the Loan Agreement.
(d) The execution and delivery of this Amendment by Borrower and
Guarantors and all documents and agreements to be executed and delivered
pursuant to the terms hereof:
(i) have been duly authorized by all requisite corporate action by
Borrower and by each Guarantor;
(ii) will not conflict with or result on the breach of or
constitute a default (upon the passage of time, delivery of notice or both)
under Borrower's or any Guarantor's Articles of Incorporation, By-Laws or any
applicable statute, law, rule, regulation or ordinance or any indenture,
mortgage, loan or other document or agreement to which Borrower or any Guarantor
is a party or by which any of them is bound or affected; and
(iii) will not result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of Borrower or any Guarantor, except liens in favor of the Agent or as
permitted hereunder or under the Loan Documents.
15. Conditions. The obligation of Agent and Lender to enter into this
Amendment is subject to the following conditions (any of which may be waived by
Agent):
15.1 Loan Documents. Borrower and Guarantors and all other required
persons and entities will have executed and delivered to Agent this Amendment
and such other documents as Agent may require.
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15.2 Amended and Restated Note. Borrower will have executed and
delivered to Agent an Amended and Restated Note in form and content satisfactory
to Lender in the original principal amount of Twenty-Eight Million Dollars
($28,000,000.00).
15.3 Secretary Certificate. Borrower will have delivered to Agent a
certificate from the Secretary of Borrower and each Guarantor attesting to the
resolutions of Borrower's and each Guarantor's board of directors authorizing
its execution, delivery and performance of Loan Agreement, this Amendment, the
other Loan Documents to which Borrower and each Guarantor, respectively, is a
party and authorizing certain specific officers of Borrower and each Guarantor
to execute the same. Such certificate shall include a list of each member of the
Borrower's and each Guarantor's board of directors and officers by name and
title.
15.4 Paydown of Revolving Credit Facility. Borrower will have paid
to Agent an amount not less than $3,000,000.00 to be applied by Agent to reduce
the outstanding principal amount of the Revolving Credit Facility.
15.5 Other Documents. Such other documents as may be required to be
submitted to Agent by the terms hereof or any of the Loan Documents shall have
been delivered by or on behalf of Borrower and Guarantors to Agent.
16. Additional Documents; Further Assurances. Borrower covenants and
agrees to execute and deliver to Agent, or to cause to be executed and delivered
to Agent contemporaneously herewith, at the sole cost and expense of Borrower,
any and all other documents, agreements, statements, resolutions, certificates,
consents and information as Agent may require in connection with the matters or
actions described herein. Borrower further covenants and agrees to execute and
deliver to Agent or to cause to be executed and delivered at the sole cost and
expense of Borrower, from time to time, any and all other documents, agreements,
statements, certificates and information as Agent shall reasonably request to
evidence or effect the terms hereof, the Loan Agreement, as amended, or any of
the other Loan Documents, or to enforce or to protect Agent's interest in the
Collateral. All such documents, agreements, statements, certificates and
information shall be in form and content acceptable to Agent in its sole
discretion.
17. Certain Fees, Costs, Expenses and Expenditures. Borrower will pay
all of the Agent's expenses in connection with the review, preparation,
negotiation, documentation and closing of this Amendment and the consummation of
the transactions contemplated hereunder, including without limitation, costs and
fees and expenses of counsel retained by Agent and all fees related to filings,
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recording of documents and searches, whether or not the transactions
contemplated hereunder are consummated. Nothing contained herein shall limit in
any manner whatsoever any Lender's or Agent's right to reimbursement under any
of the Loan Documents.
18. Communications and Notices. All notices, requests and other
communications made or given in connection with this Amendment shall be made in
accordance with the provisions of the Loan Agreement.
19. Time of Essence. Time is of the essence of this Amendment.
20. No Waiver. Except as otherwise provided herein, nothing contained
and no actions taken by Agent in connection herewith shall constitute nor shall
they be deemed to be a waiver, release or amendment of or to any rights,
remedies, or privileges afforded to Agent under the Loan Documents or under the
UCC. Nothing herein shall constitute a waiver by Agent of Borrower's or any
Guarantor's compliance with the terms of the Loan Documents, nor shall anything
contained herein constitute an agreement by Agent to enter into any further
amendments with Borrower and Guarantors.
21. Inconsistencies. To the extent of any inconsistencies between the
terms and conditions of this Amendment and the terms and conditions of the Loan
Documents, the terms and conditions of this Amendment shall prevail. All terms
and conditions of the Loan Documents not inconsistent herewith shall remain in
full force and effect and are hereby ratified and confirmed by Borrower and
Guarantors.
22. Binding Effect. This Amendment and all rights and powers granted
hereby will bind and inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
23. Severability. The provisions of this Amendment and all other Loan
Documents are deemed to be severable, and the invalidity or unenforceability of
any provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
24. No Third Party Beneficiaries. The rights and benefits of this
Amendment and the Loan Documents shall not inure to the benefit of any third
party.
25. Modifications. No modifications of this Amendment or any of the
Loan Documents shall be binding or enforceable unless in writing and signed by
or on behalf of the party against whom enforcement is sought.
26. Holidays. If the day provided herein for the payment of any amount
or the taking of any action falls on a Saturday, Sunday or public holiday at the
place for payment or action, then the due date for such payment or action will
be the next succeeding Business Day.
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27. Law Governing. This Amendment has been made, executed and delivered
in the Commonwealth of Pennsylvania and will be construed in accordance with and
governed by the laws of such Commonwealth, without regard to any rules or
principles regarding conflicts of law or any rule or canon of construction which
interprets agreements against the draftsman.
28. Headings. The headings of the Articles, Sections, paragraphs and
clauses of this Amendment are inserted for convenience only and shall not be
deemed to constitute a part of this Amendment.
29. Counterparts; Facsimile Signatures. This Amendment may be executed
in any number of counterparts, all of which taken together constitute one and
the same instrument, and any of the parties hereto may execute this Amendment by
signing any such counterpart. Any signature delivered via facsimile shall be
deemed an original signature hereto.
30. Joint and Several. The obligations of Borrower and Guarantors under
this Amendment shall be joint and several obligations.
31. Waiver of Right to Trial by Jury. BORROWER, GUARANTORS AND THE
LENDER GROUP WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (a) ARISING UNDER THIS AMENDMENT, (b) ARISING UNDER ANY OF THE
OTHER LOAN DOCUMENTS OR (c) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF BORROWER, GUARANTORS OR ANY MEMBER OF THE LENDER GROUP WITH
RESPECT TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE. BORROWER, GUARANTORS AND THE LENDER GROUP AGREE AND CONSENT THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF BORROWER, GUARANTORS AND THE LENDER GROUP TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY. BORROWER AND GUARANTORS ACKNOWLEDGE THAT THEY HAVE HAD
THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION, THAT THEY FULLY
UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT THEY VOLUNTARILY AND
KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BORROWER:
TODAY'S MAN, INC., a Pennsylvania corporation
By: /s/Xxxxx X. Xxxx
---------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxx, Vice President & Controller
GUARANTORS:
----------
BENMOL, INC., a Delaware corporation
[CORPORATE SEAL]
By: /s/Xxxxx X. Xxxx
---------------------------------------------
Xxxxx X. Xxxx, Asst. Secretary & Controller
D&L, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxx
---------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxx, Asst. Secretary & Controller
XXXX & XXXX, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxx
---------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxx, Asst. Secretary & Controller
XXXXXXXXX.XXX, INC., a Delaware corporation
By: /s/Xxxxxx X. Xxxxxx, Xx.
---------------------------------------------
[CORPORATE SEAL] Xxxxxx X. Xxxxxx, Xx. Vice President
(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
LENDERS:
-------
MELLON BANK, N.A.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx, Vice President
AGENT:
MELLON BANK, N.A.
By: /s/Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx, Vice President
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