EXHIBIT 10(e)(vi)
November 21, 2002
UNIVERSAL SUPPLY GROUP, INC.
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
RE: WAIVER AND TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Ladies and Gentlemen:
Reference is hereby made to (a) that certain Loan and Security
Agreement dated as of June 24, 1999 (the "SECURITY Agreement") between Universal
Supply Group, Inc., a New York corporation ("BORROWER"), and LaSalle Bank
National Association, a national banking association ("BANK"); (b) that certain
Continuing Unconditional Guaranty dated June 24, 1999 (the "BORROWER Guaranty"),
executed by Borrower in favor of Bank, guaranteeing certain obligations of
Atlantic Hardware & Supply Corporation ("ATLANTIC") to Bank; and (c) that
certain Continuing Unconditional Guaranty dated June 24, 1999 (the "COLONIAL
GUARANTY"), executed by Colonial Commercial Corp., a New York corporation
("COLONIAL") in favor of Bank, guaranteeing certain obligations of Atlantic to
Bank. From time to time, Borrower and Bank may have executed various amendments
(each an "AMENDMENT" and collectively the "AMENDMENTS") to the Security
Agreement (the Security Agreement and the Amendments hereinafter are referred
to, collectively, as the "AGREEMENT"). Borrower and Bank now desire, among other
things, to further amend the Agreement as provided herein, subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Bank hereby waives, in each case, to the extent occurring prior to
the Effective Date (as such term is hereinafter defined): (A) any Event of
Default occurring under Section 7 of the Agreement solely as a result of
Borrower's failure to deposit into the Lock Box Account aggregate payments
received by Borrower for inventory or services (the "LASALLE CASH COLLATERAL");
(B) any Event of Default occurring under subsection 11(o) of the Agreement
solely as a result of Borrower's failure to maintain the Minimum Tangible Net
Worth; (C) any Event of Default occurring under Section 8 of the Agreement
solely as a result of Borrower's failure to deliver to Bank Schedules of
Accounts, inventory reports and any other schedules, certificates or reports
required by Bank under Section 8 of the Agreement (the "REQUIRED DELIVERIES"),
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(D) any Event of Default occurring under Section 10 of the Agreement as a result
of Borrower's failure to give Bank ten (10) days prior notice of new locations,
to the extent such locations are set forth on revised Exhibit B to the Agreement
delivered herewith, (E) any Event of Default occurring under Section 11 of the
Agreement as a result of Borrower's failure to deliver to Bank the following
financial information: (I) monthly financial statements and (II) audited annual
financial statements for fiscal year ending December 31, 2001, (F) any Event of
Default occurring under the Agreement as a result of Atlantic's default of its
obligations to Bank pursuant to that certain Loan and Security Agreement dated
June 24, 1999 by and between the Bank and Atlantic and all documents related
thereto, (G) any Event of Default occurring under the Agreement as a result of
Borrower's making distributions to Colonial pursuant to Paragraph 8 of Exhibit A
to the Agreement, to the extent that the aggregate amount of such payments did
not exceed aggregate Federal, state and local income tax obligations, Borrower
would have paid if it were filing on a stand alone basis, (H) any Event of
Default occurring under the Agreement as a result of Borrower's payment of
management fees pursuant to Paragraph 8 of Exhibit A to the Agreement, provided
that the aggregate amount of such distributions did not exceed $250,000 in any
calendar year, (I) any Event of Default occurring under Section 10(m) of the
Agreement, provided that all disclosures required pursuant to Section 10(m) have
been made to Bank as of the date hereof, and (J) any Event of Default under
Section 10(q) of the Agreement.
2. The Agreement is hereby amended as follows:
2.1 SECTION 8 of the Agreement is hereby amended by inserting the
following language therein at the end thereof:
(d) Each delivery of monthly financial statements required
pursuant to the terms hereof shall be accompanied by a schedule in form
and substance satisfactory to Bank setting forth the calculations used
in determining compliance with each of the financial covenants set
forth in subsection 11(o) of this Agreement.
2.2 SECTION 9 of the Agreement is hereby amended by (I) deleting the
reference to the date of "June 24, 2002" set forth in the first line thereof and
substituting the date of "November 21, 2005" in its place, and (II) deleting the
final sentence thereof in its entirety and substituting the following in its
place:
Borrower may prepay the Liabilities in whole or in part at any time and
from time to time without penalty, premium, fees or interest, except
for any and all accrued and unpaid fees and interest payable pursuant
to the other terms and provisions of this Agreement.
2.3 SECTION 11(B)(III) of the Agreement is hereby deleted and the
following language is substituted in its place:
(iii) as soon as available and in no event later than one
hundred twenty (120) days after the end of each of Borrower's fiscal
years, audited annual financial statements with an opinion by
independent certified public accountants selected by Borrower and
reasonably satisfactory to Bank, which financial statements shall be
accompanied by (A) a letter from such accountants acknowledging that
they are aware that a primary intent of Borrower in obtaining such
financial statements is to influence Bank and that Bank is relying upon
such financial statements in connection with the exercise of its rights
hereunder, and (B) copies of any management letters sent to the
Borrower by such accountants.
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2.4 SUBSECTION 11(O) of the Agreement is hereby deleted in its entirety
and the 3following is substituted in its place:
(o) (i) Borrower's Tangible Net Worth shall not at any time be
less than the "Minimum Tangible Net Worth."
(ii) Borrower shall not permit the ratio of EBITDA to Fixed
Charges as determined as of December 31,2002, and the last day of each
calendar month ending thereafter, in each case for the twelve-month
period ending on such date, to be less than 1.0 to 1.0.
For purposes of the foregoing:
(A) "EBITDA" shall mean, with respect to any period, the
Borrower's net income after taxes for such period (excluding any
after-tax gains or losses on the sale of assets and excluding other
after-tax extraordinary gains or losses) PLUS interest expense, income
tax expense, depreciation and amortization for such period, LESS gains
and losses attributable to any fixed asset sales made during such
period, PLUS, without duplication, all extraordinary expenses reflected
in Borrower's financial statements for the fiscal year of Borrower
ending December 31, 2002, MINUS any other non-cash charges or gains
which have been subtracted or added in calculating net income after
taxes for such period.
(B) "Fixed Charges" shall mean for any period, without
duplication, scheduled payments of principal during the applicable
period with respect to all indebtedness of the Borrower for borrowed
money, including, without limitation, scheduled reductions in the
availability described in SUBPARAGRAPH 2(1)(C) and (D) of Exhibit A to
the Agreement, PLUS scheduled payments of principal during the
applicable period with respect to all capitalized lease obligations of
the Borrower, PLUS scheduled payments of interest during the applicable
period with respect to all indebtedness of the Borrower for borrowed
money including capital lease obligations, PLUS unfinanced capital
expenditures of the Borrower during the applicable period, PLUS
payments during the applicable period in respect of income or franchise
taxes of the Borrower.
(C) "Minimum Tangible Net Worth" shall mean an amount equal to
the greater of (a) negative $2,850,000 or (b) Tangible Net Worth as of
November 30, 2002, (adjusted for an additional $300,000 loss), as
determined based on Borrower's financial statements prepared as of such
date and delivered to Bank pursuant to the terms of the Agreement and
in any event after giving effect to any financial adjustments resulting
from the execution and delivery of the Settlement Agreement and
consummation of the respective transactions contemplated hereunder and
thereunder; PROVIDED that, notwithstanding the foregoing, "Minimum
Tangible Net Worth" shall automatically and permanently increase by an
amount equal to $75,000 on December 31, 2004 and the last day of each
fiscal year of the Borrower ending thereafter.
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(E) "Tangible Net Worth" shall mean, at any time of
determination thereof with respect to any Person, the following, in
each case of such Person: shareholders' equity (including retained
earnings), MINUS all amounts reflected in the following categories set
forth on the Borrower's internally generated balance sheet, as prepared
as of such time on a consistent basis: Prepaids/Other Current, Other
Assets, Other Intangibles, Goodwill Universal and Nor-Amortized
Goodwill, PLUS the amount of any LIFO reserve, plus the amount of any
debt subordinated to Bank, all as determined without duplication in
accordance with generally accepted accounting principles applied on a
consistent basis.
2.5 Paragraph (1) of Exhibit A to the Agreement is deleted in its
entirety and the following is substituted in its place:
(1) LOANS: Bank may, in its sole discretion, advance an amount up to the
sum of the following sublimits (the "Loan Limit"):
(A) Up to eighty-five percent (85%) of the face
amount (less maximum discounts, credits and
allowances which may be taken by or granted
to Account Debtors in connection therewith in
the ordinary course of Borrower's business)
of Borrower's Eligible Accounts; PLUS
(B) Up to sixty percent (60%) of the lower of the
cost or market value of Borrower's Eligible
Inventory; PLUS
(C) Subject to Paragraph (2)(a) of this Exhibit
A, up to Three Hundred Seventy-Three Thousand
and No/100 Dollars ($373,000.00) against the
assets of Borrower; PLUS
(D) Subject to Paragraph (2)(b) of this Exhibit
A, up to Two Million Five Hundred Thousand
and No/100 Dollars ($2,500,000.00) as a
Special Accommodation; MINUS
(E) Such reserves as Bank elects, in its sole
discretion, to establish from time to time;
provided, that the Loan Limit shall in no
event exceed Twelve Million and No/100
Dollars ($12,000,000.00), except as such
amount may be increased or decreased by Bank,
in its sole discretion, from time to time.
2.6 Paragraph (2) of Exhibit A to the Agreement is hereby amended by
inserting the following language therein at the end thereof:
(B) The availability described in subparagraph (1)(d) of this
Exhibit A shall be automatically and permanently reduced on each date
described below by that amount set forth below opposite such date until
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the earliest to occur of (i) the date on which said availability is
reduced in full; (ii) the date upon which demand for repayment of the
Loans is made by Bank, on which date said availability shall be reduced
in full; and (iii) the date upon which this Agreement terminates
pursuant to the provisions of paragraph 9 of the Agreement, on which
date said availability shall be reduced in full:
AMOUNT OF SCHEDULED REDUCTION
DATE IN SPECIAL ACCOMMODATION
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December 15, 2002, January 15, 2003 and $ 10,000
February 15, 2003
March 15, 2003, April 15, 2003 and May 15, $ 20,000
2003
June 15, 2003, July 15, 2003 and August 15, $ 30,000
2003
September 15, 2003 and the 15th day of each $ 40,000
consecutive calendar month ending thereafter
through and including January 15, 2006
February 15, 2006 and the 15th day of each $ 50,000
consecutive calendar month ending thereafter
through and including October 15, 2007
November 15, 2007 $110,000
2.7 Paragraph (3) of Exhibit A to the Agreement is deleted in its
entirety and the following is substituted in its place:
(i) All Loans made pursuant to subparagraph (1)(d) of this
Exhibit A shall bear interest at the rate of two and one-half percent
(2.5%) per annum in excess of Bank's publicly announced prime rate
(which is not intended to be Bank's lowest or most favorable rate in
effect at any time) (the "Prime Rate") in effect from time to time; and
(ii) all Loans made pursuant to subparagraphs (1)(a), (1)(b) and (1)(c)
of this Exhibit A shall bear interest at the rate of one-half of one
percent (.5%) per annum in excess of the Prime Rate in effect from time
to time. Interest shall be payable on the last business day of each
month, in arrears. Each rate of interest set forth herein shall
increase or decrease with each increase or decrease in the Prime Rate,
effective on the effective date of each such change in the Prime Rate.
For purposes of determining whether Borrower has received any advances
against the availability set forth in subparagraph (1)(d) of this
Exhibit A, advances to Borrower shall first be deemed to be advanced
against the availability set forth in subparagraphs (1)(a), 1(b) and
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(1)(c) of this Exhibit A (subject to any sublimits contained in
paragraph (1) of this Exhibit A) until the amount so advanced equals
the availability under those subparagraphs, and then to the
availability under subparagraph (1)(d) of this Exhibit A (subject to
any sublimits contained in paragraph (1) of this Exhibit A). Upon the
occurrence of an Event of Default, each Loan shall bear interest at the
rate of two percent (2%) per annum in excess of the interest rate
otherwise payable thereon, which interest shall be payable on demand.
All interest shall be calculated upon the basis of a 360-day year.
2.8 Paragraph (8) of Exhibit A to the Agreement is deleted in its
entirety and the following is substituted in its place:
(8) PERMITTED DISTRIBUTIONS: Notwithstanding the provisions of
subsection 11(l) of the Agreement, and provided that (i) each such
distribution is permitted under all applicable laws; and (ii) no Event
of Default shall have occurred prior to, or would occur as a result of,
any such distribution, Borrower may make distributions to Colonial
Commercial Corp., a New York corporation ("Parent"), in an amount not
exceeding aggregate Federal, state and local income tax obligations
Borrower would have paid if it were filing on a stand alone basis,.
2.9 Paragraph (9) of Exhibit A to the Agreement is hereby deleted in
its entirety and the following language is substituted in its place:
(9) RESTRICTION ON MANAGEMENT FEES: In addition to the
restrictions contained in subparagraph 10(e) to the Agreement, Borrower
shall not pay any management fees to any Persons, provided that
Borrower may pay a management fee to Parent in an amount not exceeding
Two Hundred Fifty Thousand and NO/100 Dollars ($250,000) per calendar
year.
2.10 Paragraph (10) of Exhibit A to the Agreement is amended by
inserting the following language therein at the end thereof:
(iii) In addition to the Events of Default specified in
Paragraph 12 of the Agreement, it shall be an Event of Default
hereunder if Borrower shall fail to perform, keep or observe any of the
covenants, conditions, promises, agreements or other obligations of
Borrower to Bank under that certain letter agreement dated as of
November 12, 2002, among Bank, Borrower and Parent regarding settlement
of certain disputes among Bank, Borrower and Parent, as such letter
agreement may be amended, restated, supplemented or otherwise modified
and in effect from time to time (the "Settlement Agreement").
2.11 Exhibit B to the Agreement is hereby deleted in its entirety and
Exhibit B attached hereto is substituted in its place.
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3. This Waiver and Amendment shall not become effective until the date
(the "EFFECTIVE DATE") on which Bank shall have received (a) a copy of this
Waiver and Amendment, fully executed by Borrower and Colonial and (b) each of
the following (in each case in form and substance satisfactory to Bank): (i) a
Third Amendment and Allonge to That Certain Demand Note dated June 24, 1999,
duly executed by Borrower, (ii) a copy of the Settlement Agreement (as such term
is defined in the Agreement, as amended hereby) duly executed by Borrower and
Colonial, (iii) a Stock Pledge Agreement duly executed by Colonial, evidencing
the pledge by Colonial to Bank of one hundred percent (100%) of the issued and
outstanding shares of capital stock of Borrower (the "PLEDGED SHARES"), together
with (x) all stock certificates representing the Pledged Shares, (y) an
irrevocable proxy covering the Pledged Shares, executed by Colonial in favor of
Bank and (z) an assignment separate from certificate covering the Pledged Shares
undated and executed by Colonial in blank; (iv) the Required Deliveries; and (v)
an accounting of the LaSalle Cash Collateral, including, without limitation,
dates of collection and usage.
4. Effective as of the Effective Date, Bank hereby terminates the
Borrower Guaranty and the Colonial Guaranty, respectively.
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- SIGNATURE PAGES FOLLOW -
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5. Except as expressly or modified or amended hereby and by any other
supplemental documents or instruments executed by either party hereto in order
to effectuate the transactions contemplated hereby, the Agreement hereby is
ratified and confirmed by the parties hereto and remains in full force and
effect in accordance with the terms hereof.
LASALLE BANK NATIONAL ASSOCIATION, a
national banking association
By:
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Title:
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ACCEPTED AND AGREED to this 21st day of November, 2002:
UNIVERSAL SUPPLY GROUP, INC.,
a New York corporation
By:
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Title:
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FOREGOING WAIVER AND TENTH
AMENDMENT CONSENTED AND
AGREED to as of November 21, 2002, by
the following guarantor(s) of the obligations
of Universal Supply Group, Inc. to LaSalle
Bank National Association
COLONIAL COMMERCIAL CORP.,
a New York corporation
By:
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Title:
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