1
Exhibit 10.1.2
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND
SECURITY AGREEMENT (this "Agreement") is made as of the 24th day of March, 2000,
by and among
AAi.FOSTERGRANT, INC. (formerly known as Accessories Associates, Inc.),
a corporation organized and existing under the laws of the State of Rhode Island
(the "Borrower");
XXXXXX XXXXX GROUP, L.P., a limited partnership organized under the
laws of the State of Delaware ("Xxxxxx Xxxxx") and FANTASMA, LLC, a limited
liability company organized under the laws of the State of Delaware
("Fantasma");
F.G.G. INVESTMENTS, INC., a corporation organized and existing under
the laws of the State of Delaware, THE XXXXXXX COMPANY, a corporation organized
and existing under the laws of the State of Texas, XXXXXXX HOLDINGS, INC., a
corporation organized and existing under the laws of the State of Delaware,
XXXXXXX GENERAL, INC., a corporation organized and existing under the laws of
the State of Delaware, XXXXXX XXXXX HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Delaware, and O-RAY HOLDINGS, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporate Guarantors"; the Corporate Guarantors together with Xxxxxx Xxxxx and
Fantasma, the "Guarantors"; and the Guarantors together with the Borrower, the
"Obligors");
BANK OF AMERICA, N.A., a national banking association ("Bank of
America"), formerly NationsBank, N.A., and each other financial institution
which is party to the Financing Agreement (as that term is defined below) from
time to time (collectively, the "Lenders" and individually, a "Lender"); and
BANK OF AMERICA, N.A., a national banking association (the "Agent"),
formerly NationsBank, N.A., in its capacity as both collateral and
administrative agent for each of the Lenders.
RECITALS
A. The Borrower, the Guarantors, the Lenders and the Agent entered into
a Second Amended and Restated Financing and Security Agreement dated July 21,
1998 (as amended by that certain First Amendment to Second Amended and Restated
Financing and Security Agreement dated as of May 7, 1999 and as further amended,
restated, modified, substituted, extended, and renewed from time to time, the
"Financing Agreement.") The Financing Agreement provides for some of the
agreements between the Borrower, the Guarantors, the Lenders and the Agent with
respect to the "Loans" (as defined in the Financing Agreement), including the
Revolving Credit Facility (as that term is defined in the Financing Agreement)
in an amount not to exceed $60,000,000 and the Letter of Credit Facility which
is part of the Revolving Credit Facility.
1
2
B. The Borrower has requested that the Agent and Lenders waive certain
financial covenant violations and amend certain financial covenants.
C. The Agent and Lenders are willing to agree to the Borrower's request
on the condition, among others, that this Agreement be executed.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrower,
Lenders and Agent agree as follows:
1. The Obligors, the Lenders and the Agent agree that the Recitals
above are a part of this Agreement. Unless otherwise expressly defined in this
Agreement, terms defined in the Financing Agreement shall have the same meaning
under this Agreement.
2. The Obligors, the Lenders and Agent agree that on the date hereof
the aggregate outstanding principal balance under the Revolving Credit Note
(subject to change for returned items and other adjustments made in the ordinary
course of business) as of the close of the business day of March 23, 2000 is
$__________.
3. Each of The Borrower, Xxxxxx Xxxxx and Fantasma represents and
warrants to the Lenders and Agent as follows:
(a) The Borrower is a corporation duly organized, and validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign corporation in good
standing in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
(b) Xxxxxx Xxxxx is a limited partnership duly organized, validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign limited partnership
in every other state wherein the conduct of its business or the ownership of its
property requires such qualification.
(c) Fantasma is a limited liability company duly organized,
validly existing and in good standing under the laws of the state in which it
was organized and is duly qualified to do business as a foreign limited
partnership in every other state wherein the conduct of its business or the
ownership of its property requires such qualification.
(d) Each of the Borrower, Xxxxxx Xxxxx and Fantasma has the power
and authority to execute and deliver this Agreement and perform its obligations
hereunder and has taken all necessary and appropriate corporate, partnership or
limited liability company action, as applicable, to authorize the execution,
delivery and performance of this Agreement.
(e) The Financing Agreement, as amended by this Agreement, and
each of the other Financing Documents remains in full force and effect, and each
constitutes the valid and
2
3
legally binding obligation of the Borrower, Xxxxxx Xxxxx and Fantasma,
enforceable in accordance with its terms.
(f) All of the Borrower's, Xxxxxx Xxxxx'x and Fantasma's
representations and warranties contained in the Financing Agreement and the
other Financing Documents are true and correct on and as of the date of the
Borrower's, Xxxxxx Xxxxx'x and Fantasma's execution of this Agreement.
(g) No Event of Default and no event which, with notice, lapse of
time or both would constitute an Event of Default, has occurred and is
continuing under the Financing Agreement or the other Financing Documents which
has not been waived in writing by the Lenders and Agent.
4. As a condition to the Agent's and Lenders' agreement to enter into
this Agreement and to grant the waivers granted herein, the Borrower hereby
agrees to pay to the Lender a fee in the amount of $150,000, which fee shall be
due at the time this Agreement is executed and is fully earned and
non-refundable upon payment.
5. As a condition to the Agent's and Lenders' agreement to enter into
this Agreement and to grant the waivers granted herein, the Borrower hereby
acknowledges that it has warranted to the Agent and the Lenders that on or
before March 31, 2000 the Borrower shall be in compliance with all reporting
requirements under Sections 6.1.1(a) through and including (h) of the Financing
Agreement. Without implying any limitation on the rights and remedies that the
Agent and the Lenders may have, if that warranty is breached on March 31, 2000
or any future reporting period, the Agent requires that the Borrowing Base
Reports reflect accounts receivable balances updated on a weekly basis from that
point forward.
6. The Financing Agreement is hereby amended as follows:
(a) The definition of "EBITDA" is hereby deleted in its entirety
and the following is substituted in its place:
"EBITDA" means for any period, the Consolidated Net
Income of the Borrower and its Subsidiaries for such period
after all expenses except depreciation, interest, amortization,
taxes and, for the fiscal year 2000 only, executive severance
expenses not to exceed the aggregate amount of $2,500,000.
(b) The definition of "Fixed Charges" is hereby deleted in its
entirety and the following is substituted in its place:
"Fixed Charges" means for any period of determination
thereof, the sum of (a) scheduled or required payments
(including, without limitation, principal and interest) on all
Indebtedness for Borrowed Money of the Borrower and its
Subsidiaries, plus (b) Capital Expenditures made in cash (and
Permitted Acquisitions to the extent not included in Capital
Expenditures) of the Borrower and its Subsidiaries, (c) plus
cash payments of taxes, plus (d) without duplication, dividends,
distributions, and repurchases, redemptions and other
transactions regarding equity paid to
3
4
shareholders including, without limitation, Permitted Affiliate
Distributions, other than Permitted Affiliate Distributions made
by one Borrower to another Borrower.
(c) Section 2.3.1(d) is hereby deleted in its entirety and the
following is substituted in its place:
(d) Changes in the Applicable Margin shall
be made not more frequently than quarterly based on the
Borrower's Pricing Ratio, determined by the Agent in the
exercise of its sole and absolute discretion from the monthly
reports for months that are also the end of a fiscal quarter
required by Section 6.1.1(c) (Monthly Statements and
Certificates) (the first such determination shall be made
based on the Borrower's financial statements for the last
Business Day of the Borrower's fiscal quarter ending closest
to March 31, 2000) and shall be effective as of the first day
of the first month after the month in which the Agent receives
such statements. The Applicable Margin (expressed as basis
points) shall vary depending upon the Borrower's Pricing
Ratio, as follows:
Applicable Margin for Applicable Margin for
Pricing Ratio LIBOR Revolving Loans Base Rate Revolving Loans
------------- --------------------- -------------------------
Greater than 1.00 to 1.00 275 100
but less than or equal to
1.05 to 1.00
----------------------------------------------------------------------------------------
Greater than 1.05 to 1.00 250 75
but less than or equal to
1.10 to 1.00
----------------------------------------------------------------------------------------
Greater than 1.10 to 1.00 225 50
but less than or equal to
1.15 to 1.00
----------------------------------------------------------------------------------------
Greater than 1.15 to 1.00 200 25
but less than or equal to
1.60 to 1.00
----------------------------------------------------------------------------------------
Greater than 1.60 to 1.00 175 0
----------------------------------------------------------------------------------------
(d) Section 2.4.3(a) is hereby deleted in its entirety and the
following is substituted in its place:
(a) Eighteen Thousand Dollars ($18,000), plus
4
5
(e) Section 6.1.13(a) is hereby deleted in its entirety and the
following is substituted in its place:
(a) Fixed Charge Coverage Ratio. The Borrower and
its Subsidiaries on a consolidated basis will maintain a Fixed
Charge Coverage Ratio, tested on the last Business Day of each of
the Borrower's fiscal quarters beginning on the last Business Day
of the fiscal quarter ending closest to March 31, 2000, (i) for
the fiscal year-to-date for the periods ending closest to March
31, 2000, June 30, 2000, and September 30, 2000, and (ii)
thereafter, for the four (4) quarter period ending on such date,
of not less than the following:
Fiscal Quarter Ending Closest To: Ratio
--------------------------------- -----
March 31, 2000 through and including December 31, 1.00 to 1.00
2000
------------------------------------------------------------------------------
March 31, 2001 through and including December 31, 1.10 to 1.00
2001
------------------------------------------------------------------------------
March 31, 2002 through and including December 31, 1.20 to 1.00
2002
------------------------------------------------------------------------------
March 31, 2003 and thereafter 1.35 to 1.00
------------------------------------------------------------------------------
(f) Section 6.1.13(b) is hereby deleted in its entirety and the
following is substituted in its place:
(b) Leverage Ratio. The Borrower and its
Subsidiaries on a consolidated basis will maintain a ratio of
Funded Debt to EBITDA, tested on the last Business Day of each of
the Borrower's fiscal quarters beginning on the last Business Day
of the fiscal quarter ending closest to March 31, 2000, (i) for
the fiscal year-to-date (based upon annualized year-to-date
EBITDA) for the periods ending closest to March 31, 2000, June
30, 2000 and September 30, 2000 and (ii) thereafter, for the four
(4) quarter period ending on such date, so that it is not more
than the following:
5
6
Fiscal Quarter Ending Closest To: Ratio
--------------------------------- -----
March 31, 2000 7.20 to 1.00
----------------------------------------------------------------------------
June 30, 2000 4.60 to 1.00
----------------------------------------------------------------------------
September 30, 2000 4.50 to 1.00
----------------------------------------------------------------------------
December 31, 2000 4.20 to 1.00
----------------------------------------------------------------------------
March 31, 2001 through and including December 31, 3.70 to 1.00
2001
----------------------------------------------------------------------------
March 31, 2002 through and including December 31, 3.30 to 1.00
2002
----------------------------------------------------------------------------
March 31, 2003 and thereafter 2.90 to 1.00
----------------------------------------------------------------------------
(g) Section 6.1.13(c), is hereby deleted in its entirety and the
following is substituted in its place:
(c) EBITDA. The Borrower and its Subsidiaries on a
consolidated basis will maintain EBITDA, tested on the last
Business Day of each of the Borrower's fiscal quarters beginning
on the last Business Day of the fiscal quarter ending closest to
March 31, 2000, (i) for the fiscal year-to-date for the periods
ending closest to March 31, 2000, June 30, 2000 and September 30,
2000 and (ii) thereafter, for the four (4) quarter period ending
on such date, of not less than the following:
6
7
Fiscal Quarter Ending Closest To: Amount
--------------------------------- ------
March 31, 2000 $ 3,500,000
---------------------------------------------------------------------------------
June 30, 2000 $10,600,000
---------------------------------------------------------------------------------
September 30, 2000 $15,400,000
---------------------------------------------------------------------------------
December 31, 2000 $20,300,000
---------------------------------------------------------------------------------
March 31, 2001 through and including December 31, 2001 $22,400,000
---------------------------------------------------------------------------------
March 31, 2002 through and including December 31, 2002 $24,600,000
---------------------------------------------------------------------------------
March 31, 2003 and thereafter $27,100,000
---------------------------------------------------------------------------------
(h) Section 6.2.7 is hereby deleted in its entirety and the
following is substituted in its place:
6.2.7 Capital Expenditures.
The Borrower, Xxxxxx Xxxxx and Fantasma will not, directly or
indirectly (by way of the acquisition of the securities of a Person or
otherwise), make any Capital Expenditures (excluding, however, any Buybacks
otherwise included as a Capital Expenditure) in the aggregate for the Borrower,
Xxxxxx Xxxxx and Fantasma (taken as a whole) in any fiscal year exceeding
$10,000,000, except the purchase and sale/leaseback of the Headquarters
Property, provided that the prior written consent of the Agent and Lenders is
obtained pursuant to Section 6.2.17 (Sale and Leaseback), which consent may be
conditioned upon the specific application of proceeds.
(i) Section 6.2.17 is hereby deleted in its entirety and the
following is substituted in its place:
6.2.17 Sale and Leaseback.
In the event the Borrower, Xxxxxx Xxxxx or Fantasma seek to directly
or indirectly enter into any arrangement to sell or transfer all or any
substantial part of its fixed assets and thereupon or thereafter rent or lease
the assets so sold or transferred, the prior written consent of the Agent and
Lenders shall be obtained, which consent may be conditioned upon the specific
application of proceeds.
7. On the condition that the Borrower agrees by signing below that no
Permitted Senior Subordinated Note Purchases shall be made unless and until the
Lenders and Agent
7
8
consent, the Lenders and the Agent hereby waive defaults under the following
provisions of the Financing Agreement which through the period stated, existed
under the Obligations; provided, however that this Paragraph shall not be deemed
to waive any defaults under the following provisions after the period stated, or
any other defaults arising out of non-compliance by the Borrower with the
Financing Agreement, whether or not the events, facts or circumstances giving
rise to such non-compliance existed on or prior to the date hereof:
Section Default
------- -------
6.1.13(a) As of February 28, 2000
6.1.13(b) As of February 28, 2000
6.1.13(c) As of February 28, 2000
8. The Obligors, as applicable, hereby issue, ratify and confirm the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. The Obligors agree that this Agreement is not intended to and
shall not cause a novation with respect to any or all of the Obligations.
9. The Obligors acknowledge and warrant that the Agent and Lenders have
acted in good faith and have conducted in a commercially reasonable manner their
relationships with the Obligors in connection with this Agreement and generally
in connection with the Financing Agreement and the Obligations, the Obligors
hereby waiving and releasing any claims to the contrary.
10. The Obligors shall pay at the time this Agreement is executed and
delivered all fees, commissions, costs, charges, taxes and other expenses
incurred by the Agent and Lenders and their counsel in connection with this
Agreement, including, but not limited to, reasonable fees and expenses of the
Agent's counsel and all recording fees, taxes and charges.
11. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be
deemed to be an original and taken together shall constitute but one and the
same instrument. The parties agree that their respective signatures may be
delivered by facsimile. Any party who chooses to deliver its signature by
facsimile agrees to provide a counterpart of this Agreement with its inked
signature promptly to each other party.
SIGNATURES BEGIN ON FOLLOWING PAGE
8
9
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and Agent
have executed this Agreement under seal as of the date and year first written
above.
WITNESS AAi.FOSTERGRANT, INC. (formerly known as
Accessories, Associates, Inc.)
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: XXXXXX XXXXX GROUP, L.P.
By: Xxxxxxx General, Inc.
General Partner
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: FANTASMA, LLC
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: F.G.G. INVESTMENTS, INC.
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: THE XXXXXXX COMPANY
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
9
10
WITNESS: XXXXXXX GENERAL, INC.
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: XXXXXXX HOLDINGS, INC.
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: XXXXXX XXXXX HOLDINGS, INC.
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: O-RAY HOLDINGS, INC.
By:
---------------------------- ---------------------------(SEAL)
Xxxx Xxxx
Chief Financial Officer
WITNESS: BANK OF AMERICA, N.A.
By:
---------------------------- ---------------------------(SEAL)
Xxxx X. Xxxxxxxx
Vice President
10
11
WITNESS: BANK OF AMERICA, N.A.
in its capacity as a Lender
By:
---------------------------- ---------------------------(SEAL)
Xxxx X. Xxxxxxxx
Vice President
WITNESS: LASALLE BUSINESS CREDIT, INC.
By:
---------------------------- ---------------------------(SEAL)
Name:
Title:
WITNESS: PNC BUSINESS CREDIT
By:
---------------------------- ---------------------------(SEAL)
Name:
Title:
11
