SEVENTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
SEVENTEENTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This
SEVENTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as
of this 30th day
of November, 2009 by and among BANK OF AMERICA, N.A., as successor by merger to
LaSalle Business Credit, LLC, as administrative agent and collateral agent (in
such agent capacities, “Agent”) for itself and all
other lenders from time to time a party hereto (“Lenders”), located at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, PROTECTIVE APPAREL
CORPORATION OF AMERICA, a New York corporation (“PACA”), POINT BLANK BODY ARMOR
INC., a Delaware corporation (“Point Blank”) and LIFE WEAR
TECHNOLOGIES, INC., a Florida corporation (“Life Wear”, and together with
PACA and Point Blank, collectively, the “Borrowers” and each,
individually, a “Borrower”) and POINT BLANK
SOLUTIONS, INC., a Delaware corporation (the “Parent” and a “Guarantor”). Unless
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Loan Agreement (as hereinafter
defined).
RECITALS
WHEREAS,
Borrowers, Parent, Agent and Lenders have entered into that certain Amended and
Restated Loan and Security Agreement dated as of April 3, 2007 (as amended,
supplemented, restated or otherwise modified from time to time, the “Loan Agreement”);
WHEREAS,
Borrowers, Parent, Agent and Lenders have agreed to the amendments set forth
herein;
NOW
THEREFORE, in consideration of the foregoing recitals, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers, Parent, Agent and
Lenders hereby agree as follows:
SECTION
1. Amendments.
(a) The
definition of “Sixteenth Amendment Reserve” set forth in Section 1 of the Loan
Agreement is hereby amended and restated to read as follows:
“Sixteenth Amendment
Reserve” means, for the relevant period, (x) the dollar amount of the
“Availability Block” set forth below for such period minus
(y) settlement costs in respect of the Department of Justice matters
regarding Zylon and the investigation commenced by the Securities and Exchange
Commission involving Parent and Borrowers (the “Specific Settlement
Costs”) paid in cash after the Sixteenth Amendment Effective Date in an
aggregate amount not to exceed $1,000,000:
|
START
DATE
|
END
DATE
|
AVAILABILITY
BLOCK
|
|
Sixteenth
Amendment Effective Date
|
November 6,
2009
|
$7,500,000
|
|
November
7, 2009
|
November
13, 2009
|
$9,000,000
|
|
November
14, 2009
|
November
20, 2009
|
$10,500,000
|
|
November
21, 2009
|
November
27, 2009
|
$11,500,000
|
|
November
28, 2009
|
December
4, 2009
|
$11,500,000
|
|
December
5, 2009
|
December
18, 2009
|
$17,500,000
|
|
December
19, 2009
|
December
25, 2009
|
$16,500,000
|
|
December
26, 2009
|
January
1, 2010
|
$13,500,000
|
|
January
2, 2010
|
January
8, 2010
|
$11,000,000
|
|
January
9, 2010
|
January
22, 2010
|
$9,000,000
|
|
January
23, 2010
|
January
29, 2010
|
$8,500,000
|
|
January
30, 2010
|
April
3, 2010
|
$7,500,000
|
(b) Section
14.1(e) of the Loan Agreement is hereby amended and restated to read as
follows:
“(e) Minimum
Availability. Parent and the Borrowers shall not permit
Availability plus unrestricted
cash on hand to be less than (i) $1,000,000 through any period ending on or
before December 4, 2009 and (ii) $2,000,000 at any other time; provided, that in
each case the amount of unrestricted cash on hand shall be excluded from the
foregoing calculation of $1,000,000 or $2,000,000, as applicable, at any time
when the outstanding principal amount of Revolving Loans exceeds
$2,500,000.”
SECTION
2. Effectiveness. The
effectiveness of this Amendment is subject to the satisfaction of each of the
following conditions precedent:
(a) This
Amendment shall have been duly executed and delivered by Borrowers and Parent
(collectively, “Amendment
Parties”), Agent and each Lender;
(b) No
Default or Event of Default shall have occurred and be continuing after giving
effect to this Amendment and;
(c) The
representations and warranties contained herein shall be true and correct in all
material respects.
SECTION
3. Representations
and Warranties. In order to induce Agent and each Lender to
enter into this Amendment, each Amendment Party hereby represents and warrants
to Agent and each Lender, which representations and warranties shall survive the
execution and delivery of this Amendment, that:
(a) all
of the representations and warranties contained in the Loan Agreement and in
each of the Other Agreements are true and correct in all material respects as of
the date hereof after giving effect to this Amendment, except to the extent that
any such representations and warranties expressly relate to an earlier
date;
(b) the
execution, delivery and performance by Amendment Parties of this Amendment has
been duly authorized by all necessary corporate action required on their part
and this Amendment, the Loan Agreement and the Other Agreements are the legal,
valid and binding obligation of Amendment Parties enforceable against Amendment
Parties in accordance with their terms, except as their enforceability may be
affected by the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors generally, and by
general limitations on the availability of equitable remedies;
(c) neither
the execution, delivery and performance of this Amendment by Amendment Parties,
the performance by Amendment Parties of the Loan Agreement nor the consummation
of the transactions contemplated hereby does or shall contravene, result in a
breach of, or violate (i) any provision of any Amendment Party’s certificate or
articles of incorporation or bylaws or other similar documents, or agreements,
(iii) any law or regulation, or any order or decree of any court or government
instrumentality, or (iii) any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which any Amendment Party or any of its
Subsidiaries is a party or by which any Amendment Party or any of its
Subsidiaries or any of their property is bound, except in any such case to the
extent such conflict or breach has been waived or consented to herein or by a
written waiver document, a copy of which has been delivered to Agent on or
before the date hereof; and
(d) no
Default or Event of Default has occurred and is continuing after giving effect
to this Amendment.
SECTION
4. Reference to and Effect Upon
the Loan Agreement.
(a) Except
as specifically set forth above, the Loan Agreement and each of the Other
Agreements shall remain in full force and effect and are hereby ratified and
confirmed; and
(b) the
amendments set forth herein are effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be deemed to (i)
be a consent to any amendment, waiver or modification of any other term or
condition of the Loan Agreement or any of the Other Agreements except as
specifically set forth herein, (ii) operate as a waiver or otherwise prejudice
any right, power or remedy that Agent or Lenders may now have or may have in the
future under or in connection with the Loan Agreement or any of the Other
Agreements except as specifically set forth herein, (iii) constitute a waiver of
any provision of the Loan Agreement or any of the Other Agreements, except as
specifically set forth herein, or (iv) constitute a waiver of any Event of
Default existing on the date hereof or arising after the date hereof except as
specifically set forth herein and Agent and Lenders hereby reserve all rights
and remedies under the Loan Agreement and the Other Agreements as a result of
such Events of Default. Upon the effectiveness of this Amendment,
each reference in the Loan Agreement to “this Agreement”, “herein”, “hereof” and
words of like import and each reference in the Loan Agreement and the Other
Agreements to the Loan Agreement shall mean the Loan Agreement as amended
hereby. This Amendment shall be construed in connection with and as
part of the Loan Agreement. Each Amendment Party hereby acknowledges
and agrees that there is no defense, setoff or counterclaim of any kind, nature
or description to the Liabilities or the payment thereof when due.
SECTION
5. Costs And
Expenses. To the extent provided in Section 4(c)(iv) of
the Loan Agreement, Borrowers agree to reimburse Agent for all fees, costs, and
expenses, including the reasonable fees, costs, and expenses of counsel or other
advisors for advice, assistance, or other representation in connection with this
Amendment.
SECTION
6. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION
7. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute part of this Amendment for any other
purposes.
SECTION
8. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when so
executed shall be deemed an original, but all such counterparts shall constitute
one and the same instrument.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment
as of the date first written above.
BORROWERS:
| PROTECTIVE APPAREL CORPORATION OF AMERICA | |||
|
By:
|
/s/ Xxxxxxxx Xxxxx | ||
|
Name:
|
Xxxxxxxx Xxxxx | ||
|
Title:
|
Chief Financial Officer |
| POINT BLANK BODY ARMOR INC. | |||
|
By:
|
/s/ Xxxxxxxx Xxxxx | ||
|
Name:
|
Xxxxxxxx Xxxxx | ||
|
Title:
|
Chief Financial Officer |
| LIFE WEAR TECHNOLOGIES, INC. | |||
|
By:
|
/s/ Xxxxxxxx Xxxxx | ||
|
Name:
|
Xxxxxxxx Xxxxx | ||
|
Title:
|
Chief Financial Officer |
PARENT:
| POINT BLANK SOLUTIONS, INC. | |||
|
By:
|
/s/ Xxxxxxxx Xxxxx | ||
|
Name:
|
Xxxxxxxx Xxxxx | ||
|
Title:
|
Chief Financial Officer |
[Signature
Page to Seventeenth Amendment to Loan and Security Agreement]
AGENT
AND LENDER:
|
BANK
OF AMERICA, N.A., as successor by merger to
LaSalle
Business Credit, LLC
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | ||
|
Name:
|
Xxxxxxx X. Xxxxxxx | ||
|
Title:
|
Senior Vice President |
[Signature
Page to Seventeenth Amendment to Loan and Security
Agreement]
