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EXHIBIT 10.14.3
THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(the "Amendment"), is made as of May 31, 1998, by and between VANS, INC.
("Borrower"), and BANK OF THE WEST ("Bank"), and is entered into with respect to
the Amended and Restated Loan and Security Agreement, dated as of October 31,
1997, by and between Borrower and Bank, as amended by the First Amendment to
Amended and Restated Loan and Security Agreement, dated as of February 3, 1998,
by and between Borrower and Bank and the Second Amendment to Amended and
Restated Loan and Security Agreement, dated as of May 31, 1998, by and between
Borrower and Bank (the "Agreement").
RECITALS
WHEREAS, Borrower has requested that Bank (i) amend certain of the
financial covenants in the Agreement with respect to the fiscal quarters ending
August 31, 1998, and November 30, 1998 and (ii) provide a seasonal increase in
the Revolving Facility, all as provided herein; and
WHEREAS, Bank is willing to agree to the requests, on the terms set
forth herein, provided that Borrower waives all causes of action that it may
have against Bank, as provided herein and pays an accommodation fee, as provided
herein, and Borrower is willing to waive such causes of action and to pay such
accommodation fee in return for the requested amendments;
NOW, THEREFORE, IT IS AGREED THAT:
1. Definitions. Unless otherwise indicated, words and terms which
are defined in the Agreement shall have the same meaning where used herein.
2. Amendments. The Agreement is amended as follows:
(a) The definitions of "Committed Line" and "Revolver Committed
Line" in Section 1.1 are amended to read as follows:
"Committed Line" means (i) Forty-Three Million Five Hundred
Thousand Dollars ($43,500,000) during the period commencing on
May 31, 1998, and terminating on December 31, 1998, and (ii)
Thirty Million Dollars ($30,000,000) after December 31, 1998.
"Revolver Committed Line" means (i) Thirty-Eight Million Five
Hundred Thousand Dollars ($38,500,000) during the period
commencing on May 31, 1998, and terminating on December 31,
1998, and (ii) Twenty-Five Million Dollars ($25,000,000) after
December 31, 1998.
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(b) Section 7.6 is amended to read as follows:
7.6 Current Ratio. Permit the ratio of Consolidated
Current Assets to Consolidated Current Liabilities to be less than (i) 2.15 to
1.00 as of the last day of the fiscal quarter of Borrower ending August 31,
1998, and (ii) 2.50 to 1.00 as of the last day of any fiscal quarter of Borrower
ending after August 31, 1998.
(c) Section 7.7 is amended to read as follows:
7.7 Quick Ratio. Permit the ratio of Consolidated Quick
Assets to Consolidated Current Liabilities to be less than (i) 1.25 to 1.00 on
the last day of the fiscal quarter of Borrower ending on August 31, 1998, and
(ii) 1.50 to 1.00 on the last day of any fiscal quarter of Borrower ending after
August 31, 1998.
(d) Section 7.11 is amended to read as follows:
7.11 Leverage Ratio. Permit the ratio of Total Liabilities
to Adjusted Consolidated Tangible Net Worth to be more than (i) .65 to 1.00 on
the last day of the fiscal quarter of Borrower ending August 31, 1998, (ii) .60
to 1.00 on the last day of the fiscal quarter of Borrower ending November 30,
1998, and (iii) .50 to 1.00 on the last day of any fiscal quarter of Borrower
ending after November 30, 1998.
2. Conditions Precedent. This Amendment shall not take effect
unless and until all of the following conditions precedent are satisfied:
(a) Execution and Delivery. It is executed by Borrower and
accepted and executed by Bank;
(b) No Event of Default. No Event of Default or Potential Default
shall exist and the execution, delivery and performance of this Amendment by the
parties hereto shall not cause an Event of Default or a Potential Default to
occur; and
(c) Accommodation Fee. Borrower shall have paid Bank an
accommodation fee of Thirteen Thousand Five Hundred Dollars ($13,500)(the
"Accommodation Fee"). The Accommodation Fee shall be fully earned by Bank upon
the execution and delivery of this Amendment and shall not be applied to any of
the Bank Expenses.
Upon the satisfaction of the preceding conditions precedent, the Agreement shall
be deemed amended in accordance with this Amendment as of the date hereof.
3. Continued Validity of Agreement. Except as amended by this
Amendment, the Agreement shall continue in full force and effect as originally
constituted and is ratified and affirmed by the parties hereto.
4. Authorization. Each party represents to the other that the
individual executing this Amendment on its behalf is the duly appointed
signatory of such party to this Amendment
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and that such individual is authorized to execute this Amendment by or on behalf
of such party and to take all action required by the terms of this Amendment.
5. Amendment Expenses. All expenses, including, but not limited to,
reasonable attorneys' fees, incurred by Bank in the preparation and
implementation of this Amendment constitute Bank Expenses and as such are
payable by Borrower.
6. Waiver of Claims.
(a) Borrower hereby releases and forever discharges Bank and
Bank's directors, officers, employees and agents, from all actions, and causes
of action, judgments, executions, suits, debts, claims, demands, liabilities,
counterclaims and offsets of every character, known or unknown, direct and/or
indirect, at law or in equity, of whatever kind or nature which have arisen or
accrued through the date of this Amendment and in any way directly or indirectly
arising out of or in any way connected with the Loan Documents and the Revolving
Facility through such date.
(b) Borrower hereby waives all rights which it may have under the
provisions of California Civil Code Section 1542, which reads as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
the debtor.
7. Captions. Section headings and numbers have been set forth
herein for convenience only. Unless the contrary is compelled by the context,
everything contained in each section applies equally to this entire Amendment.
8. No Novation. This Amendment is not intended to be, and shall not
be construed to create, a novation or accord and satisfaction, and, except as
otherwise provided herein, the Agreement shall remain in full force and effect.
9. Construction of Amendment. Neither this Amendment nor any
uncertainty or ambiguity herein shall be construed or resolved against Bank on
the basis that this Amendment was drafted by Bank. On the contrary, this
Amendment has been negotiated and reviewed by both parties and shall be
construed and interpreted according to the ordinary meaning of the words used so
as to fairly accomplish the purposes and intentions of the parties hereto.
10. Severability. Each provision of this Amendment shall be
severable from every other provision of this Amendment for the purpose of
determining the legal enforceability of any specific provision.
11. Entire Agreement. This Amendment constitutes the entire
agreement between Borrower and Bank with respect to the subject matter hereof
and supersedes all prior and contemporaneous negotiations, communications,
discussions and agreements concerning such
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subject matter. Borrower acknowledges and agrees that Bank has not made any
representation, warranty or covenant in connection with this Amendment.
12. Counterparts. This Amendment may be executed in any number of
counterparts, and by Bank and Borrower in separate counterparts, each of which
shall be an original, but all of which shall together constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first set forth above.
VANS, INC.
By: [SIG]
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Title: VP/CFO
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BANK OF THE WEST
By: /s/ XXX XXXXXXXXX
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Xxx XxXxxxxxx
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