Exhibit 10.32
THIRTEENTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS THIRTEENTH AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT
(the "Amendment") is made effective as of April 25, 2002 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
Standard Federal Bank National Association in such capacity) (individually, a
"Lender" and, collectively, the "Lenders"); and STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, formerly known as Michigan National Bank, as successor in interest
to Mellon Bank, N.A., 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, (vii) that
certain Seventh Amendment and Modification to Loan and Security Agreement dated
November 15, 2000, (viii) that certain Eighth Amendment and Modification to Loan
and Security Agreement dated February 28, 2001, (ix) that certain Ninth
Amendment and Modification to Loan and Security Agreement dated June 14, 2001,
(x) that certain Tenth Amendment and Modification to Loan and Security Agreement
dated September 21, 2001, (xi) that certain Eleventh Amendment and Modification
to Loan and Security Agreement dated December 14, 2001, and (xii) that certain
Twelfth Amendment and Modification to Loan and Security Agreement dated February
27, 2002 (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 Twenty-Three Million Dollars
($23,000,000.00).
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:
"13.1. Tangible Net Worth. Borrower will maintain Tangible Net Worth of not
less than the following amounts for the following periods:
Amount Periods
------ -------
$19,119,000.00 as of January 5, 2002, and at all
times thereafter until January 31, 2002;
$14,912,000.00 as of February 1, 2002 and at all
times thereafter until March 1, 2002;
$13,205,000.00 as of March 2, 2002 and at all times
thereafter until April 5, 2002;
$12,730,000.00 as of April 6, 2002 and at all times
thereafter until May 3, 2002;
$12,857,000.00 as of May 4, 2002 and at all times
thereafter until May 31, 2002;
$13,420,000.00 as of June 1, 2002 and at all times
thereafter until July 5, 2002;
$13,706,000.00 as of July 6, 2002 and at all times
thereafter until August 2, 2002;
$12,209,000.00 as of August 3, 2002 and at all times
thereafter until August 30, 2002;
$11,144,000.00 as of August 31, 2002 and at all times
thereafter until October 4, 2002;
$11,233,000.00 as of October 5, 2002 and at all times
thereafter until November 1, 2002;
$11,576,000.00 as of November 2, 2002 and at all
times thereafter until November 29, 2002;
$12,308,000.00 as of November 30, 2002 and at all
times thereafter until January 3, 2003;
$15,395,000.00 as of January 4, 2003 and at all
times thereafter until January 31, 2003; and
$14,272,000.00 as of February 1, 2003 and at all
times thereafter."
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2. 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
------ ------
($1,623,000.00) For the fiscal month ending March 2, 2002
($850,000.00) For the fiscal month ending April 6, 2002
($173,000.00) For the fiscal month ending May 4, 2002
$263,000.00 For the fiscal month ending June 1, 2002
($14,000.00) For the fiscal month ending July 6, 2002
($1,797,000.00) For the fiscal month ending August 3, 2002
($1,364,000.00) For the fiscal month ending August 31, 2002
($207,000.00) For the fiscal month ending October 5, 2002
$44,000.00 For the fiscal month ending November 2, 2002
$433,000.00 For the fiscal month ending November 30, 2002
$2,787,000.00 For the fiscal month ending January 4, 2003
($1,424,000.00) For the fiscal month ending February 1, 2003
and for each fiscal month end thereafter."
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3. 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 2, 2002 and for each
fiscal quarter thereafter through January 31, 2003. Such waiver shall be limited
to Borrower's compliance with the Fixed Charge Coverage Ratio covenant solely
for the period from February 2, 2002 and ending on January 31, 2003 and for no
other periods 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. Borrower will comply with the Fixed Charge Coverage Ratio covenant
set forth in Section 13.4 of the Loan Agreement for the period ending February
1, 2003 and as of each fiscal quarter end thereafter.
4. 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 (as amended above), 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
evidencing such amendment and restatement of the financial covenants in form and
content acceptable to Agent.
5. Fees. Intentionally Omitted.
6. 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.
7. 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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8. 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.
(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 in 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.
9. 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):
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9.1 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.
9.2 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 the 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.
9.3 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.
10. 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. 11. 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,
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.
12. 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.
13. Time of Essence. Time is of the essence of this Amendment.
14. No Waiver. Except as otherwise provided herein, nothing contained
and no actions taken by Agent in connection herewith shall constitute nor shall
they be
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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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
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23. 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.
24. Joint and Several. The obligations of Borrower and Guarantors under
this Amendment shall be joint and several obligations.
25. 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
intending to be legally bound hereby.
BORROWER:
TODAY'S MAN, INC., a Pennsylvania corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxxxxx, Executive Vice President
& Chief Financial Officer
GUARANTORS:
BENMOL, INC., a Delaware corporation
[CORPORATE SEAL]
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, President
D&L, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxxxxx, President
XXXX & XXXX, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxxxxx, President
XXXXXXXXX.XXX, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Xxxxx X. Xxxxxxx, President
(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
LENDERS:
-------
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION,
formerly knows as
Michigan National Bank,
as successor in interest
to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx, Vice President
AGENT:
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION,
formerly knows as
Michigan National Bank,
as successor in interest
to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxx, Vice President
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