Exhibit 10.26
NINTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS NINTH AMENDMENT AND MODIFICATION TO LOAN AND SECURITY AGREEMENT
(the "Amendment") is made effective as of June 14, 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,
(vii) that certain Seventh Amendment and Modification to Loan and Security
Agreement dated November 15, 2000, and (viii) that certain Eighth Amendment and
Modification to Loan and Security Agreement dated February 28, 2001
(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-Eight Million Dollars ($28,000,000.00).
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:
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1. Contract Period. The defined term "Contract Period" as set forth in
Section 1.1 of the Loan Agreement shall be and is hereby amended to read in its
entirety as follows:
"Contract Period" means the period of time commencing on the date of
this Agreement and expiring on August 31, 2002."
2. Termination of Revolving Credit Facility and Termination Fee. In
conjunction with the resetting of the Contract Period, Section 7.10(ii) of the
Loan Agreement shall be and is hereby amended to read in its entirety as
follows:
"(ii) If the termination occurs after March 15, 2001, but on or
before August 31, 2002, the termination fee will be equal to
$1,050,000.00."
3. 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
------ -------
$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;
$22,977,000.00 as of April 7, 2001 and at all times
thereafter until May 4, 2001;
$22,174,000.00 as of May 5, 2001 and at all times
thereafter until June 1, 2001;
$21,995,000.00 as of June 2, 2001 and at all times
thereafter until July 6, 2001;
$21,721,000.00 as of July 7, 2001 and at all times
thereafter until August 3, 2001;
$20,238,000.00 as of August 4, 2001 and at all times
thereafter until August 31, 2001;
$18,894,000.00 as of September 1, 2001 and at all times
thereafter until October 5, 2001;
$19,140,000.00 as of October 6, 2001 and at all times
thereafter until November 2, 2001;
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$18,913,000.00 as of November 3, 2001 and at all
times thereafter until November 30, 2001;
$19,756,000.00 as of December 1, 2001 and at all
times thereafter until January 4, 2002;
$22,976,000.00 as of January 5, 2002 and at all
times thereafter until February 1, 2002;
$22,153,000.00 as of February 2, 2002 and at all
times thereafter."
4. 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 July 6, 2001, (vi)
2.15 to 1.0 as of July 7, 2001 and at all times thereafter through
August 31, 2001, (vii) 2.25 to 1.0 as of September 1, 2001 and at all
times through October 5, 2001, (viii) 2.50 to 1.0 as of October 6,
2001 and at all times thereafter through November 30, 2001, (ix) 2.40
to 1.0 as of December 1, 2001 and at all times thereafter through
January 4, 2002, (x) 1.80 to 1.0 as of January 5, 2002 and at all
times thereafter through February 1, 2002, and (xi) 1.70 to 1.0 as of
February 2, 2002 and at all times thereafter."
5. Fixed Charge Coverage Ratio. Section 13.4 of the Loan Agreement
shall be and is hereby amended to read in its entirety as follows:
"13.4. Fixed Charge Coverage Ratio. Borrower will maintain a
Fixed Charge Coverage Ratio tested quarterly on a rolling four (4)
quarter basis of not less than 1.1 to 1.0 for the fiscal quarter
ending February 3, 2002 and as of the end of each fiscal quarter
thereafter."
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:
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"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
($600,000.00) 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
($2,000,000.00) For the fiscal month ending August 4, 2001
($1,850,000.00) 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
evidencing such amendment and restatement of the financial covenants in form and
content acceptable to Agent.
8. 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) $1,250,000.00 for the period commencing
on the date hereof and ending on June 15, 2001, (ii) $0 for the period
commencing on June 16, 2001 and ending on July 15, 2001, (iii) $2,000,000.00 for
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the period commencing on July 16, 2001 and ending on November 30, 2001, (iv)
$1,500,000.00 for the period commencing on December 1, 2001 and ending on
December 14, 2001, (v) $1,000,000 for the period commencing on December 15, 2001
and ending on December 20, 2001, and (vi) $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 July 15, 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.
9. Fees. Borrower agrees to pay to Agent (for the benefit of Lender)
certain fees in connection with Agent and Lender entering into this Amendment.
10. 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.
11. 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.
12. 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).
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(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 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.
13. 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):
13.1 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.
13.2 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
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.
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13.3 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.
14. 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.
15. 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.
16. 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.
17. Time of Essence. Time is of the essence of this Amendment.
18. 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.
19. 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
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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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. Joint and Several. The obligations of Borrower and Guarantors under
this Amendment shall be joint and several obligations.
29. 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
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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
[CORPORATE SEAL] By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
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
[CORPORATE SEAL] By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, President
XXXX & XXXX, INC., a Delaware corporation
[CORPORATE SEAL] By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, President
XXXXXXXXX.XXX, INC., a Delaware
corporation
[CORPORATE SEAL] By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, 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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