EX-10.16.25E
FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made and entered into as of December 31, 1996,
by and among DANSKIN, INC., a Delaware corporation (hereinafter referred to as
"Borrower"); FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("Agent"), a national
banking association, as agent for itself and the other financial institutions
("Lenders") from time to time party to the Loan Agreement (as hereinafter
defined); and such Lenders.
W I T N E S S E T H:
WHEREAS, Agent, Lenders and Borrower are parties to a certain Amended
and Restated Loan and Security Agreement (the "Loan Agreement"), dated June 22,
1995, as amended August 17, 1995, February 29, 1996, March 18, 1996, and July
31, 1996, pursuant to which Lenders have made certain revolving credit loans,
term loans and other financial accommodations to Borrower; and
WHEREAS, the parties desire to amend the Loan Agreement as hereinafter
set forth;
NOW, THEREFORE, for and in consideration of TEN DOLLARS($10.00) in hand
paid and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meanings ascribed to such terms in the
Loan Agreement.
2. Amendment to Section 9.3(A) of the Loan Agreement. Section 9.3(A) of
the Loan Agreement is hereby amended by deleting the amount of Consolidated
EBITDA Borrower is required to achieve as of the last day of the fourth quarter
of its 1996 fiscal year and by substituting in lieu thereof the amount of
$4,400,000.
3. Amendment to Section 9.3(B) of the Loan Agreement. Section 9.3(B) of
the Loan Agreement is hereby amended by deleting the Consolidated Interest
Coverage Ratio Borrower is required to maintain as of the last day of the fourth
quarter of its 1996 fiscal year and by substituting in lieu thereof the ratio of
1.0 to 1.0.
4. Amendment Fee. Borrower shall pay to Agent, for the ratable benefit
of Lenders, an amendment fee of $117,500, which fee shall be deemed fully earned
at the closing of the transactions contemplated by this Amendment, shall be paid
concurrently with the execution and delivery of this Amendment and shall not be
subject to rebate except as may be required by Applicable Law. Such fee shall
compensate Agent and Lenders for the costs associated with the origination,
structuring, processing, approving and closing of the transactions contemplated
by this Amendment including, but not limited to, administrative, out-of-pocket,
general overhead and lost opportunity costs, but not including any expenses for
which Borrower has agreed to reimburse Agent and Lenders pursuant to any other
provisions of this Amendment, the Loan Agreement or any other Loan Documents,
such as, by way of example, legal fees and expenses.
5. Ratification and Reaffirmation. Borrower hereby ratifies and
reaffirms each of the Loan Documents and all of Borrower's covenants, duties and
liabilities thereunder.
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6. Acknowledgements and Stipulations. Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); the security interests and liens
granted by Borrower in favor of Agent for the Pro Rata benefit of Lenders are
duly perfected, first priority security interests and liens, subject to the
exceptions set forth in the Loan Agreement or otherwise consented to by Agent in
writing.
7. Representations and Warranties. Borrower represents and warrants to
Agent, to induce Agent and Lenders to enter into this Amendment, that, after
giving effect to the provisions of this Amendment, no Default or Event of
Default exists on the date hereof; the execution, delivery and performance of
this Amendment have been duly authorized by all requisite corporate action on
the part of Borrower and this Amendment has been duly executed and delivered by
Borrower; and except as may have been disclosed in writing by Borrower to Agent
prior to the date hereof, all of the representations and warranties made by
Borrower in the Loan Agreement are true and correct on and as of the date
hereof.
8. Expenses of Agent and Lenders. Borrower agrees to pay, on demand,
all costs and expenses incurred by Agent and Lenders, whether currently due or
in connection with the preparation, negotiation and execution of this Amendment
and any other Loan Documents executed pursuant hereto and any and all
amendments, modifications and supplements thereto, including, without
limitation, the costs and fees of Agent and Lenders' legal counsel.
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9. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of North Carolina.
10. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. No Novation, etc. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
Notwithstanding any prior mutual temporary disregard of any of the terms of any
of the Loan documents, the parties agree that the terms of each of the Loan
Documents shall be strictly adhered to on and after the date hereof.
12. Counterparts: Telecopied Signatures. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument. Any signature delivered by a party by facsimile
shall be deemed to be an original signature hereto.
13. Waiver of Notice. Borrower hereby waives notice of acceptance of
this Amendment by Agent and Lenders.
14. Waiver of Jury Trial. THE PARTIES HERETO EACH HEREBY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING
OUT OF OR RELATED TO THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal, and delivered by their respective duly authorized
officers as of the date first written above.
BORROWER:
ATTEST: DANSKIN, INC.
/S/ Xxxxx X. Xxxx By: /S/ Xxxxxxx Xxxxxx
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Title: Secretary Title: Chief Financial Officer
[CORPORATE SEAL]
LENDERS:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /S/ Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
FIRST UNION COMMERCIAL
CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
[Signatures Continued on Following Page]
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AGENT:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Agent
By: /S/ Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
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CONSENT AND REAFFIRMATION
The undersigned guarantor of the Obligations of Borrower at any time
owing to Agent and Lenders hereby (i) acknowledges receipt of a copy of the
foregoing Fifth Amendment to Amended and Restated Loan and Security Agreement;
(ii) consents to Borrower's execution and delivery thereof; and (iii) affirms
that nothing contained therein shall modify in any respect whatsoever its
guaranty of the Obligations and reaffirms that such guaranty is and shall remain
in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation, on and as of the date of such Fifth Amendment to Amended and
Restated Loan and Security Agreement.
ATTEST: DANPEN, INC.
/S/ Xxxxx X. Xxxx By: /S/ Xxxxxxx Xxxxxx
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Secretary
Title: Chief Financial Officer
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