EIGHTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.1
EIGHTEENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
EIGHTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as
of this 14th day
of December, 2009 by and among BANK OF AMERICA, N.A., as successor by merger to
LaSalle Business Credit, LLC, as administrative agent and collateral agent (in
such agent capacities, “Agent”) for itself and all
other lenders from time to time a party hereto (“Lenders”), located at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, PROTECTIVE APPAREL
CORPORATION OF AMERICA, a New York corporation (“PACA”), POINT BLANK BODY ARMOR
INC., a Delaware corporation (“Point Blank”) and LIFE WEAR
TECHNOLOGIES, INC., a Florida corporation (“Life Wear”, and together with
PACA and Point Blank, collectively, the “Borrowers” and each,
individually, a “Borrower”) and POINT BLANK
SOLUTIONS, INC., a Delaware corporation (the “Parent” and a “Guarantor”). Unless
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Loan Agreement (as hereinafter
defined).
RECITALS
WHEREAS,
Borrowers, Parent, Agent and Lenders have entered into that certain Amended and
Restated Loan and Security Agreement dated as of April 3, 2007 (as amended,
supplemented, restated or otherwise modified from time to time, the “Loan Agreement”);
WHEREAS,
Borrowers, Parent, Agent and Lenders have agreed to the amendments set forth
herein;
NOW
THEREFORE, in consideration of the foregoing recitals, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers, Parent, Agent and
Lenders hereby agree as follows:
SECTION
1. Amendments.
(a) The
definition of “Applicable Margin” set forth in Section 1 of the Loan Agreement
is hereby amended and restated in its entirety to read as follows:
“Applicable Margin” means (a)
4.00% for all Term Loans that are Base Rate Loans and (b) 6.00% for all
Revolving Loans that are Base Rate Loans.
(b) The
definition of “Sixteenth Amendment Reserve” set forth in Section 1 of the Loan
Agreement is hereby amended and restated to read as follows:
“Sixteenth Amendment
Reserve” means, for the relevant period, (x) the dollar amount of the
“Availability Block” set forth below for such period minus (y) settlement
costs in respect of the Department of Justice matters regarding Zylon and the
investigation commenced by the Securities and Exchange Commission involving
Parent and Borrowers (the “Specific Settlement
Costs”) paid in cash after the Sixteenth Amendment Effective Date in an
aggregate amount not to exceed $1,000,000:
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START
DATE
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END
DATE
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AVAILABILITY
BLOCK
|
|
Sixteenth
Amendment Effective Date
|
November 6,
2009
|
$7,500,000
|
|
November
7, 2009
|
November
13, 2009
|
$9,000,000
|
|
November
14, 2009
|
November
20, 2009
|
$10,500,000
|
|
November
21, 2009
|
December
4, 2009
|
$11,500,000
|
|
December
5, 2009
|
December
18, 2009
|
$7,750,000
|
|
December
19, 2009
|
January
8, 2010
|
$12,750,000
|
|
January
9, 2010
|
April
4, 2010
|
$10,750,000
|
(c) The
definition of “Maximum Revolving Loan Limit” set forth in Section 2(a) of the
Loan Agreement is hereby amended by deleting the language reading “(A) during
the period from the Sixteenth Amendment Effective Date through January 29, 2010,
Fifteen Million and No/100 Dollars ($15,000,000), (B) during the period from
January 30, 2010 through February 11, 2010, Ten Million and No/100 Dollars
($10,000,000) and (C) from and after February 12, 2010, Five Million and No/100
Dollars ($5,000,000)” and replacing it with language reading “(A) during the
period from the Sixteenth Amendment Effective Date through December 18, 2009,
Fifteen Million and No/100 Dollars ($15,000,000), (B) during the period from
December 19, 2009 through January 22, 2010, Twenty Million and No/100 Dollars
($20,000,000), (C) during the period from January 23, 2010 through February 12,
2010, Fifteen Million and No/100 Dollars ($15,000,000), (D) during the period
from February 13, 2010 through February 26, 2010, Ten Million and No/100 Dollars
($10,000,000) and (E) from and after February 27, 2010, Five Million and No/100
Dollars ($5,000,000)”.
(d) Section
14(b) of the Loan Agreement is hereby amended and restated in its entirety to
read as follows:
“(b) Minimum
EBITDA. Parent and Borrowers on a consolidated basis shall
have, at the end of each period set forth below, EBITDA for such period of not
less than the following:
|
Period
|
Amount
|
|
One
month ending October 31, 2009
|
($1,750,000)
|
|
Two
months ending November 30, 2009
|
($2,050,000)
|
|
Three
months ending December 31, 2009
|
($1,300,000)
|
|
Four
months ending January 31, 2010
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($550,000)
|
|
Five
months ending February 28, 2010
|
$200,000”
|
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(e) Section
14(e) of the Loan Agreement is hereby amended and restated to read as
follows:
“(e) [Intentionally
Deleted].”
SECTION
2. Limited
Consent. Agent and Lenders hereby consent to the sale by
Parent of all the capital stock of Life Wear Technologies, Inc. so long as (i)
such sale is consummated in accordance with the terms of a stock purchase
agreement that is on terms and conditions satisfactory to Agent, (ii) the net
proceeds from such sale shall be at least $400,000 in cash and shall be
immediately applied to repay the Revolving Loans then outstanding and (iii) no
Event of Default has occurred and is continuing at the time, and after giving
effect to, such sale. In accordance with such consent, Agent
and Lenders hereby waive any Event of Default arising under Section 15(e) of the
Loan Agreement solely to permit the sale described in this Section
2.
SECTION
3. Effectiveness. The
effectiveness of this Amendment is subject to the satisfaction of each of the
following conditions precedent:
(a) This
Amendment shall have been duly executed and delivered by Borrowers and Parent
(collectively, “Amendment
Parties”), Agent and each Lender;
(b) No
Default or Event of Default shall have occurred and be continuing after giving
effect to this Amendment;
(c) The
representations and warranties contained herein shall be true and correct in all
material respects; and
(d) Agent
shall have received, for the ratable benefit of the Lenders, an amendment fee in
the amount of $250,000 which shall be fully earned and payable on the date
hereof.
SECTION
4. Representations
and Warranties. In order to induce Agent and each Lender to
enter into this Amendment, each Amendment Party hereby represents and warrants
to Agent and each Lender, which representations and warranties shall survive the
execution and delivery of this Amendment, that:
(a) all
of the representations and warranties contained in the Loan Agreement and in
each of the Other Agreements are true and correct in all material respects as of
the date hereof after giving effect to this Amendment, except to the extent that
any such representations and warranties expressly relate to an earlier
date;
(b) the
execution, delivery and performance by Amendment Parties of this Amendment has
been duly authorized by all necessary corporate action required on their part
and this Amendment, the Loan Agreement and the Other Agreements are the legal,
valid and binding obligation of Amendment Parties enforceable against Amendment
Parties in accordance with their terms, except as their enforceability may be
affected by the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors generally, and by
general limitations on the availability of equitable remedies;
3
(c) neither
the execution, delivery and performance of this Amendment by Amendment Parties,
the performance by Amendment Parties of the Loan Agreement nor the consummation
of the transactions contemplated hereby does or shall contravene, result in a
breach of, or violate (i) any provision of any Amendment Party’s certificate or
articles of incorporation or bylaws or other similar documents, or agreements,
(iii) any law or regulation, or any order or decree of any court or government
instrumentality, or (iii) any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which any Amendment Party or any of its
Subsidiaries is a party or by which any Amendment Party or any of its
Subsidiaries or any of their property is bound, except in any such case to the
extent such conflict or breach has been waived or consented to herein or by a
written waiver document, a copy of which has been delivered to Agent on or
before the date hereof; and
(d) no
Default or Event of Default has occurred and is continuing after giving effect
to this Amendment.
SECTION
5. Reference to and Effect Upon
the Loan Agreement.
(a) Except
as specifically set forth above, the Loan Agreement and each of the Other
Agreements shall remain in full force and effect and are hereby ratified and
confirmed; and
(b) the
amendments set forth herein are effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be deemed to (i)
be a consent to any amendment, waiver or modification of any other term or
condition of the Loan Agreement or any of the Other Agreements except as
specifically set forth herein, (ii) operate as a waiver or otherwise prejudice
any right, power or remedy that Agent or Lenders may now have or may have in the
future under or in connection with the Loan Agreement or any of the Other
Agreements except as specifically set forth herein, (iii) constitute a waiver of
any provision of the Loan Agreement or any of the Other Agreements, except as
specifically set forth herein, or (iv) constitute a waiver of any Event of
Default existing on the date hereof or arising after the date hereof except as
specifically set forth herein and Agent and Lenders hereby reserve all rights
and remedies under the Loan Agreement and the Other Agreements as a result of
such Events of Default. Upon the effectiveness of this Amendment,
each reference in the Loan Agreement to “this Agreement”, “herein”, “hereof” and
words of like import and each reference in the Loan Agreement and the Other
Agreements to the Loan Agreement shall mean the Loan Agreement as amended
hereby. This Amendment shall be construed in connection with and as
part of the Loan Agreement. Each Amendment Party hereby acknowledges
and agrees that there is no defense, setoff or counterclaim of any kind, nature
or description to the Liabilities or the payment thereof when due.
SECTION
6. Costs And
Expenses. To the extent provided in Section 4(c)(iv) of
the Loan Agreement, Borrowers agree to reimburse Agent for all fees, costs, and
expenses, including the reasonable fees, costs, and expenses of counsel or other
advisors for advice, assistance, or other representation in connection with this
Amendment.
4
SECTION
7. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION
8. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute part of this Amendment for any other
purposes.
SECTION
9. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when so
executed shall be deemed an original, but all such counterparts shall constitute
one and the same instrument.
[Signature
Pages Follow]
5
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment
as of the date first written above.
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BORROWERS:
|
|
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PROTECTIVE
APPAREL CORPORATION OF AMERICA
|
|
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By:
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/s/
Xxxxxxxx Xxxxx
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Name:
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Xxxxxxxx
Xxxxx
|
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Title:
|
Chief
Financial Officer
|
|
POINT
BLANK BODY ARMOR INC.
|
|
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By:
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/s/
Xxxxxxxx Xxxxx
|
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Name:
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Xxxxxxxx
Xxxxx
|
|
Title:
|
Chief
Financial Officer
|
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LIFE
WEAR TECHNOLOGIES, INC.
|
|
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By:
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/s/
Xxxxxxxx Xxxxx
|
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Name:
|
Xxxxxxxx
Xxxxx
|
|
Title:
|
Chief
Financial Officer
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|
PARENT:
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|
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By:
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/s/
Xxxxxxxx Xxxxx
|
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Name:
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Xxxxxxxx
Xxxxx
|
|
Title:
|
Chief
Financial Officer
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[Signature
Page to Eighteenth Amendment to Loan and Security Agreement]
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AGENT
AND LENDER:
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BANK
OF AMERICA, N.A., as successor by merger to
|
|
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LaSalle
Business Credit, LLC
|
|
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By:
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/s/
Xxxxxxx X. Xxxxxxx
|
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Name:
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Xxxxxxx
X. Xxxxxxx
|
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Title:
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Senior
Vice President
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[Signature
Page to Eighteenth Amendment to Loan and Security
Agreement]
