Exhibit 10.14
FOURTH AMENDMENT
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TO
AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
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THIS FOURTH AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT (this "Agreement") is made as of the 25th day of January, 2001 by and
among XXXXX INTERNATIONAL ENTERPRISES CORP., a corporation organized and
existing under the laws of the State of New York, BLUE RIDGE TEXTILE
MANUFACTURING, INC., a corporation organized under the laws of the State of
Georgia, and OHIO GARMENT RENTAL, INC., a corporation organized under the laws
of the State of Ohio (each is referred to individually as a "Borrower and
collectively, the "Borrowers"), and BANK OF AMERICA, N.A., a national banking
association, successor by merger to NationsBank, N.A. ("Bank of America"),
LASALLE BUSINESS CREDIT, INC., a corporation organized under the laws of the
State of Delaware ("LaSalle"), and PNC BANK, NATIONAL ASSOCIATION, a national
banking association ("PNC") (Bank of America, LaSalle and PNC are referred to
individually as a "Lender" and collectively as the "Lenders"), and BANK OF
AMERICA, N.A., a national banking association, successor by merger to
NationsBank, N.A, as collateral and administrative agent for the Lenders (the
"Agent").
RECITALS
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A. The Borrowers and Bank of America entered into that certain Amended
and Restated Financing and Security Agreement dated as of June 26, 1998, as
amended by that certain First Amendment to Amended and Restated Financing and
Security Agreement dated June 9, 1999, as amended by that certain Second
Amendment to Amended and Restated Financing and Security Agreement dated January
27, 2000 and as amended by that certain Third Amendment to Amended and Restated
Financing and Security Agreement dated September 11, 2000 (as amended, restated,
modified, substituted, extended, and renewed from time to time, the "Financing
Agreement"). Unless otherwise expressly defined in this Agreement, terms defined
in the Financing Agreement shall have the same meaning under this Agreement.
B. Bank of America and LaSalle entered into that certain Assignment and
Assumption Agreement dated December 31, 1998 (and as amended, restated,
modified, substituted, extended, and renewed from time to time, the "LaSalle
Assumption Agreement"). Under the terms of the LaSalle Assumption Agreement,
Bank of America sold to LaSalle, among other things, interests in the
Commitment, in the Obligations, and the Collateral, without recourse, on the
condition, among others as set forth in the LaSalle Assumption Agreement, that
LaSalle assume Bank of America's obligations to the extent of LaSalle's
interest, as a Lender under the Financing Agreement.
C. Bank of America and PNC entered into that certain Assignment and
Assumption Agreement dated December 31, 1998 (and as amended, restated,
modified, substituted, extended, and renewed from time to time, the "PNC
Assumption Agreement"). Under the terms of the PNC Assumption Agreement, Bank of
America sold to PNC, among other things, interests in the Commitment, in the
Obligations, and the Collateral, without recourse, on the condition, among
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others as set forth in the PNC Assumption Agreement, that PNC assume Bank of
America's obligations to the extent of PNC's interest, as a Lender under the
Financing Agreement.
D. Bank of America, LaSalle and PNC entered into that certain Agency
Agreement dated December 31, 1998 (and as amended, restated, modified,
substituted, extended, and renewed from time to time, the "Agency Agreement").
Under the terms of the Agency Agreement, the Lenders designated and appointed
Bank of America as the agent under the Financing Agreement and the Financing
Documents, and authorized Bank of America, as Agent, to take such action or to
refrain from taking such action on the Lenders' behalf under the provisions of
the Financing Agreement and the Financing Documents.
E. The Financing Agreement provides for some of the agreements between
the Borrowers, the Lenders and the Agent with respect to the "Loans" (as defined
in the Financing Agreement), including a revolving credit facility in an amount
not to exceed $25,000,000, a letter of credit facility in the amount of
$3,000,000, an acquisition facility in an amount not to exceed $10,000,000 and a
capital expenditure facility in an amount not to exceed $20,000,000.
F. The Borrowers have requested that the Lenders and Agent increase the
revolving credit facility from $25,000,000 to $30,000,000, decrease the capital
expenditure facility from $20,000,000 to $15,000,000 and amend certain other
provisions of the Financing Agreement.
G. The Agent and Lenders are willing to agree to the Borrowers' request
on the condition, among others, that this Agreement be executed.
AGREEMENTS
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrowers,
the Lenders and the Agent agree as follows:
1. The Borrowers, the Lenders and the Agent agree that the Recitals above
are a part of this Agreement. Unless otherwise expressly defined in this
Agreement, terms defined in the Financing Agreement shall have the same meaning
under this Agreement.
2. The Borrowers represent and warrant to the Agent and Lenders as
follows:
(a) Each Borrower is a corporation duly organized, and validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign corporation in good
standing in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
(b) Each Borrower has the power and authority to execute and
deliver this Agreement and perform its obligations hereunder and has taken all
necessary and appropriate corporate action to authorize the execution, delivery
and performance of this Agreement.
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(c) The Financing Agreement, as amended by this Agreement, and
each of the other Financing Documents remains in full force and effect, and each
constitutes the valid and legally binding obligation of each Borrower,
enforceable in accordance with its terms.
(d) All of the Borrowers' representations and warranties contained
in the Financing Agreement and the other Financing Documents are true and
correct on and as of the date of the Borrowers' execution of this Agreement.
(e) No Event of Default and no event which, with notice, lapse of
time or both would constitute an Event of Default, has occurred and is
continuing under the Financing Agreement or the other Financing Documents which
has not been waived in writing by the Agent and the Lenders under this
Agreement.
3. Section 2.1.1 (Revolving Credit Facility) of the Financing Agreement is
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hereby deleted in its entirety, and the following is substituted in its place:
Subject to and upon the provisions of this Agreement, the
Lender establishes a revolving credit facility in favor of the
Borrowers. The aggregate of all advances under the Revolving Credit
Facility are sometimes referred to in this Agreement collectively
as the "Revolving Loan".
The principal amount of Thirty Million Dollars ($30,000,000)
is the "Revolving Credit Committed Amount".
During the Revolving Credit Commitment Period, the Lender
agrees to make advances under the Revolving Loan as requested by
the Borrowers from time to time provided that after giving effect
to the Borrowers' request, the outstanding principal balance of the
Revolving Loan would not exceed the lesser of (a) the Revolving
Credit Committed Amount minus the Outstanding Letter of Credit
Obligations, or (b) the most current Borrowing Base.
4. Section 2.1.3 (Borrowing Base) of the Financing Agreement is hereby
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deleted in its entirety, and the following is substituted in its place:
As used in this Agreement, the term "Borrowing Base" means at
any time, an amount equal to the aggregate of (a) eighty-five
percent (85%) of the amount of Eligible Receivables, plus (b) the
lesser of (i) the sum of fifty percent (50%) of the amount of
Eligible Inventory consisting of new merchandise plus twenty-five
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percent (25%) of the amount of Eligible Inventory consisting of in-
service inventory, or (ii) Fifteen Million Dollars ($15,000,000).
The Borrowing Base shall be computed based on the Borrowing
Base Report most recently delivered to and accepted by the Lender
in its good faith discretion. In the event the Borrowers fail to
furnish a Borrowing Base Report required by Section 2.1.4 below,
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or in the event the Lender in good faith determines that a
Borrowing Base Report is no longer accurate, the Lender may, in its
sole and absolute discretion exercised from time to time and
without limiting its other rights and remedies under this
Agreement, suspend the making of or limit advances under the
Revolving Loan. The Borrowing Base shall be subject to reduction by
amounts credited to the Collateral Account since the date of the
most recent Borrowing Base Report and by the amount of any
Receivable or any Inventory which was included in the Borrowing
Base but which the Lender determines fails to meet the respective
criteria applicable from time to time for Eligible Receivables or
Eligible Inventory.
If, at any time, the total of the aggregate principal amount of
the Revolving Loan and the Outstanding Letter of Credit Obligations
exceeds the Borrowing Base, a borrowing base deficiency ("Borrowing
Base Deficiency") shall exist. Each time a Borrowing Base
Deficiency exists, the Borrowers at the sole and absolute
discretion of the Lender exercised from time to time shall pay the
Borrowing Base Deficiency ON DEMAND to the Lender from time to
time.
5. Section 2.4.1 (Capital Expenditure Line Facility) of the Financing
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Agreement is hereby deleted in its entirety, and the following is substituted in
its place:
Subject to and upon the provisions of this Agreement, the
Lender establishes a capital expenditure line facility in the
maximum principal amount of Fifteen Million Dollars ($15,000,000)
("Capital Expenditure Line Committed Amount") in favor of the
Borrowers. The aggregate of all advances under the Capital
Expenditure Line Facility are sometimes referred to in this
Agreement collectively as the "Capital Expenditure Line". The
obligation of the Lender to make advances under the Capital
Expenditure Line is herein called its "Capital Expenditure Line
Commitment".
During the Capital Expenditure Line Advance Period, the
Borrowers may request advances under the Capital Expenditure Line
Facility in accordance with the provisions of this Agreement;
provided that after giving effect to the Borrowers' request (a) the
outstanding principal balance of the Capital Expenditure Line would
not exceed the Capital Expenditure Line Commitment; and (b) the
aggregate of all advances under the Capital Expenditure Line would
not exceed the Capital Expenditure Line Committed Amount.
Amounts repaid on the Capital Expenditure Line may not be
reborrowed.
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6. Section 2.4.2 ("Procedure for Making Advances Under the Capital
Expenditure Line") is hereby deleted in its entirety, and the following is
substituted in its place:
The Borrowers may borrow under the Capital Expenditure Line
Facility on any Business Day. The Borrowers shall give the Lender
written notice (a "Capital Expenditure Line Notice") at least five
(5) Business Days prior to the date on which the Borrowers desire
an advance under the Capital Expenditure Line. Each Capital
Expenditure Line Notice shall be accompanied by (a) a contract of
sale, purchase order or invoice, in form and substance reasonably
satisfactory to the Lender, which accurately and completely
describes the Equipment purchased after the Closing Date which is
the subject of the requested advance and the purchase price
therefor, expressly identifying and excluding the costs of
delivery, installation, taxes, and other "soft" costs, and (b)
evidence reasonably satisfactory to the Lender indicating that
such Equipment have been delivered to and accepted by the
applicable Borrower. Each Capital Expenditure Line Notice shall
also be accompanied by such other information, certificates,
confirmations, and other items as the Lender may reasonably
require to determine the value and the delivery of the subject
Equipment and compliance with the other terms of this Agreement.
The amount to be advanced with respect to a Capital Expenditure
Line Notice shall not exceed the lesser of (a) the amount
requested by the Borrowers or (b) the purchase price (excluding
the costs of delivery, installation, taxes, and other "soft"
costs) of the Equipment times (i) 100% for advances aggregating up
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to and including $4,000,000 in any year, and (ii) 80% for advances
in excess of $4,000,000 in any year. Each advance under the
Capital Expenditure Line shall not be less than $100,000 .
7. Subsection (i) of Section 6.2.7 ("Investments, Loans and Other
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Transactions") is hereby deleted in its entirety, and the following is
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substituted in its place:
(i) any advance to an officer or any employee of the
Borrowers or of any Subsidiary, provided that the aggregate amount
of all such advances by the Borrowers and their Subsidiaries
(taken as a whole) outstanding at any time shall not exceed Three
Hundred Fifty Thousand Dollars ($350,000);
8. It is a condition of the agreements of the Agent and the Lenders under
this Agreement that at the time this Agreement is executed and delivered:
(a) The Borrowers shall have executed and delivered (a) to the Agent
on behalf of Bank of America a First Amended and Restated Revolving Credit Note
and a First Amended and Restated Capital Expenditure Line Note made payable to
the order of Bank of America in the amount of its Revolving Credit Committed
Amount and Capital Expenditure Line Committed
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Amount, respectively, and in form and substance satisfactory to the Agent in the
exercise of its sole and absolute discretion.
(b) The Borrowers shall have executed and delivered to the Agent on
behalf of LaSalle a First Amended and Restated Revolving Credit Note and a First
Amended and Restated Capital Expenditure Line Note made payable to the order of
LaSalle in the amount of its Revolving Credit Committed Amount and Capital
Expenditure Line Committed Amount, respectively, and in form and substance
satisfactory to the Agent in the exercise of its sole and absolute discretion.
(c) The Borrowers shall have executed and delivered to the Agent on
behalf of PNC a First Amended and Restated Revolving Credit Note and a First
Amended and Restated Capital Expenditure Line Note made payable to the order of
PNC in the amount of its Revolving Credit Committed Amount and Capital
Expenditure Line Committed Amount, respectively, and in form and substance
satisfactory to the Agent in the exercise of its sole and absolute discretion.
9. As a condition to the Agent's and the Lenders' agreement to enter into
this Agreement and the waivers granted herein, the Borrowers hereby agree to pay
to the Agent, for the ratable benefit of the Lenders, an amendment fee in the
amount of $15,000, which fee shall be due at the time this Agreement is executed
and is fully earned and non-refundable upon payment.
10. Each Borrower hereby issues, ratifies and confirms the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. Each Borrower agrees that this Agreement is not intended to
and shall not cause a novation with respect to any or all of the Obligations.
11. Each Borrower acknowledges and warrants that the Lenders and Agent
have acted in good faith and have conducted in a commercially reasonable manner
their relationships with the Borrowers in connection with this Agreement and
generally in connection with the Financing Agreement and the Obligations, each
Borrower hereby waiving and releasing any claims to the contrary.
12. The Borrowers shall pay at the time this Agreement is executed and
delivered, all fees, commissions, costs, charges, taxes and other expenses
incurred by the Agent and its counsel in connection with this Agreement,
including, but not limited to, reasonable fees and expenses of the Agent's
counsel not to exceed $5,000.00 (such limitation excludes reasonable fees and
expenses of the Agent's counsel incurred prior to the preparation of this
Agreement) and all recording fees, taxes and charges.
13. This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and taken together shall constitute but one and the same
instrument. The parties agree that their respective signatures may be delivered
by facsimile. Any party which chooses to deliver its signature by facsimile
agrees to provide a counterpart of this Agreement with its inked signature
promptly to each other party.
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have
executed this Agreement under seal as of the date and year first written above.
ATTEST: XXXXX INTERNATIONAL ENTERPRISES
CORP.
_____________________________ By:__________________________(SEAL)
Name:
Title:
BLUE RIDGE TEXTILE MANUFACTURING,
INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
OHIO GARMENT RENTAL, INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
WITNESS: BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as a Lender
_____________________________ By:__________________________(SEAL)
Xxxx Xxxxxxxx
Vice President
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WITNESS: LASALLE BUSINESS CREDIT, INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
WITNESS: PNC BANK, NATIONAL ASSOCIATION
_____________________________ By:__________________________(SEAL)
Name:
Title:
WITNESS: BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as Agent
_____________________________ By:__________________________(SEAL)
Xxxx Xxxxxxxx
Vice President
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