EX-10.16.25F
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made and entered into as of March 26, 1997, by
and among DANSKIN, INC., a Delaware corporation ("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, July 31,
1996, and December 31, 1996 pursuant to which Lenders have made revolving credit
loans, term loans and other financial accommodations to Borrower;
Whereas, Borrower has requested, among other things, that Agent and
Lenders temporarily increase the maximum amount of the Revolver Loans available
under the Loan Agreement;
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 1.1 of the Loan Agreement. Section 1.1 of the Loan
Agreement is hereby amended as follows:
(i) by deleting the definition of the term "Agent" as set
forth therein and by substituting in lieu thereof the following:
Agent - Bank in its capacity as collateral and
administrative agent for the Lenders hereunder and any successor agent
appointed pursuant to Section 12 hereof.
(ii) by deleting paragraph (a) of the definition of the term
"Borrowing Base" as set forth therein thereof and by substituting in
lieu thereof the following:
(a) $28,500,000 from March 26, 1997, through and including
March 31, 1998, and $25,000,000 at all times thereafter, minus the
Letter of Credit Outstandings at any date; or
(iii) by deleting clause (i) of paragraph (a) of the
definition of the term "Danskin Division Formula Amount" as set forth
therein and by substituting in lieu thereof the following:
(i) eighty percent (80%) of the net amount of Danskin
Division Eligible Accounts outstanding on such date; provided,
however, that for so long as no Default or Event of Default
shall then exist and be continuing, the foregoing percentage
shall be increased to eighty-five percent (85%) during the
period commencing June 1, 1997, and ending July 31, 1997; plus
(iv) by deleting the definition of the term "Eligible
Assignee" as set forth therein and by substituting in lieu thereof the
following:
Eligible Assignee - a commercial bank having total
assets in excess of $1,000,000,000; a finance company or other
financial institution acceptable to Agent which in the
ordinary course of business extends credit of the type
evidenced by the Notes and has total assets in excess of
$200,000,000; an insurance company; an investment bank or
fund; or a venture capital fund.
(v) by deleting clause (i) of paragraph (a) of the definition
of the term "Pennaco Division Formula Amount" as set forth therein and
by substituting in lieu thereof the following:
(i) seventy percent (70%) of the net amount of
Pennaco Division Eligible Accounts outstanding on such date;
provided, however, that for so long as no Default or Event of
Default shall then exist and be continuing, the foregoing
percentage shall be increased to eighty percent (80%) during
the period commencing June 1, 1997, and ending July 31, 1997;
plus
3. Amendment to Section 2.3 of the Loan Agreement. Clause (iii) of
Section 2.3(B) of the Loan Agreement is hereby amended by deleting the reference
to "$1,000,000" contained therein and by substituting in lieu thereof
"$2,000,000".
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4. Amendment to Section 9.3 of the Loan Agreement. The Loan Agreement is
hereby amended by deleting Section 9.3 thereof in its entirety and by
substituting in lieu thereof the following:
9.3. Specific Financial Covenants. During the term of this
Agreement, and thereafter for so long as there are any Obligations to
Agent or Lenders, Borrower covenants that, unless otherwise consented
to by Agent in writing, it shall:
(A) Profitability. Achieve Consolidated EBITDA as of
the last day of the fiscal quarter indicated for the four fiscal
quarters then ending of not less than the following amounts for the
fiscal periods corresponding thereto:
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
---- ------- ------- ------- -------
0000 X/X X/X X/X $ 4,400,000
1997 $ 4,800,000 $4,700,000 $ 5,500,000 $ 6,400,000
1998 $10,250,000 $11,750,000 $11,750,000 $12,500,000
1999 $13,000,000 $13,000,000 $12,850,000 $12,500,000
2000 $12,500,000 $13,000,000 $13,000,000 $13,000,000
2001 $13,000,000 $13,000,000 $13,000,000 $13,000,000
2002 $13,000,000 $13,000,000 $13,000,000 $13,000,000
(B) Minimum Interest Coverage Ratio. Maintain as of
the last day of each quarter for the four (4) fiscal quarters then
ending a Consolidated Interest Coverage Ratio of not less than the
ratio shown below for the fiscal period corresponding thereto:
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
---- ------- ------- ------- -------
1996 N/A N/A N/A 1.00 to 1.0
1997 1.07 to 1.0 1.03 to 1.0 1.20 to 1.0 1.39 to 1.0
1998 2.75 to 1.0 3.00 to 1.0 3.25 to 1.0 3.75 to 1.0
1999 4.00 to 1.0 4.00 to 1.0 4.00 to 1.0 4.00 to 1.0
2000 4.25 to 1.0 4.00 to 1.0 4.25 to 1.0 4.50 to 1.0
2001 5.00 to 1.0 5.00 to 1.0 5.00 to 1.0 5.00 to 1.0
2002 5.00 to 1.0 5.00 to 1.0 5.00 to 1.0 5.00 to 1.0
5. Revolver Commitments. The references to "$12,500,000" under the Revolver
Loan Commitments as set forth opposite the name of each Lender on the signature
page to the Loan Agreement are each hereby deleted and the following substituted
in lieu thereof:
$14,250,000 from March 26, 1997, through March 31, 1998, and
$12,500,000 at all times thereafter
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6. Letter of Credit Commitments. The references to "$500,000" under the
Letter of Credit Commitments as set forth opposite the name of each Lender on
the signature page to the Loan Agreement are each hereby deleted and
"$1,000,000" substituted in lieu thereof.
7. Total Commitments. The references to "$23,500,000" under the Total
Commitments and Shares as set forth opposite the name of each Lender on the
signature page to the Loan Agreement are each hereby deleted and the following
substituted in lieu thereof:
$25,250,000 from March 26, 1997, through March 31, 1998, and
$23,500,000 at all times thereafter
8. Substitute of Schedule 1. Schedule 1 attached to the Loan Agreement is
hereby deleted and the Schedule 1 attached to this Amendment shall be deemed to
be substituted in lieu thereof.
9. Pennaco Analysis. On or before May 31, 1997, Borrower shall deliver to
Agent (i) a reasonably detailed written analysis of the business and financial
prospects of the Pennaco Division, (ii) Borrower's plans with respect to the
improvement of the Pennaco Division's operating results or its sale or other
disposition, and (iii) reasonably detailed schedules and strategies for the
implementation of such plans.
10. Additional Equity. Unless Borrower shall have obtained Net Equity
Proceeds of at least $6,000,000 on or before August 31, 1997, on terms and
conditions reasonably acceptable to Agent, Borrower, at its option, shall either
(i) pay the Obligations in full or (ii) pay to Agent for the Pro Rata benefit of
Lenders an additional equity fee of $3,000,000 ("Additional Equity Fee"). In the
event Borrower elects to pay the Additional Equity Fee, Borrower shall deliver
to Agent no later than September 5, 1997, a non-interest bearing note, in form
reasonably acceptable to Agent, in the original principal amount of the
Additional Equity Fee. Such note shall be payable in full upon the earliest of
(i) the occurrence of an Event of Default described in Section 11.1(J) of the
Loan Agreement or upon the acceleration of the Obligations as a consequence of
the occurrence of any other Event of Default; (ii) the effective date of the
termination of the Commitments; or (iii) the date on which all Term Loans have
been paid in full. Solely for purposes of calculating Borrower's compliance with
the financial covenants set forth in Section 9.3 of the Loan Agreement, the
unpaid amount of the Additional Equity Fee shall not be deemed a liability of
Borrower.
11. Collateral Valuation. Agent may engage, at Borrower's expense, an
appraiser or valuation firm as shall be reasonably acceptable to Borrower for
the purpose of providing to Agent on or before May 31, 1997, a detailed, written
valuation of the Collateral, with such appraisal to be based on methodologies
and valuation standards as shall be acceptable to Agent. The expenses of such
appraiser or valuation firm shall be chargeable to Borrower and shall be based
on such appraiser's customary and usual rates. Agent shall have no obligation to
make the foregoing valuation available to Borrower. Any appraiser so engaged
shall enter into an agreement in favor of Borrower containing confidentiality
provisions customarily utilized in engagements of such type.
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12. Consultant. Agent may engage, at Borrower's expense, a business
consultant as shall be reasonably acceptable to Borrower for the purpose of
assessing Borrower's business prospects. Borrower shall permit such consultant
and its representatives to visit Borrower's business premises during normal
business hours. In addition, Borrower shall cooperate with all reasonable
requests for the review of Borrower's books and records and for interviews with
Borrower's executive management. The expenses of such consultant shall be
chargeable to Borrower and shall be based on such appraiser's customary and
usual rates. Agent shall have no obligation to make the results of such
consultation available to Borrower. Any consultant so engaged shall enter into
an agreement in favor of Borrower containing confidentiality provisions
customarily utilized in engagements of such type.
13. Ratification and Reaffirmation. Borrower hereby ratifies and reaffirms
each of the Loan Documents and all of Borrower's covenants, duties and
liabilities thereunder.
14. Acknowledgments 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.
15. 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.
16. 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.
17. Amendment Fee. Borrower shall pay to Agent for the Pro Rata benefit of
Lenders an amendment fee of $250,000 which shall be deemed fully earned at the
closing of the transactions contemplated by this Amendment. Such fee shall be
fully earned and due and payable as of the date 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 processing,
approving
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and closing of the transactions contemplated by this Amendment, including
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 of the other Loan Documents, such as, by way of example, legal fees and
expenses.
18. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of North Carolina.
19. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
20. 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.
21. Counterparts; Telecopied Signatures. This Amendment may be executed in
one or more counterparts, each of which shall constitute an original, but all of
which taken together shall be one and the same instrument. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
22. Waiver of Notice. Borrower hereby waives notice of acceptance of this
Amendment by Agent and Lenders.
23. Release of Claims. To induce Agent and Lenders to enter into this
Amendment, Borrower hereby releases, acquits and forever discharges Agent and
Lenders, and their respective officers, directors, agents, employees, successors
and assigns, from all liabilities, claims, demands, actions or causes of action
of any kind (if any there be), whether absolute or contingent, due or to become
due, disputed or undisputed, liquidated or unliquidated, at law or in equity, or
known or unknown, that Borrower may now have or ever have had against Agent or
any Lender, whether arising under or in connection with any of the Loan
Documents or otherwise.
24. 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.
------------------------------ By:
Secretary --------------------------
Title:-----------------------
[CORPORATE SEAL]
LENDERS:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:
-----------------------------
Title:
-------------------------
FIRST UNION COMMERCIAL
CORPORATION
By:
----------------------------
Title:
-------------------------
AGENT:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Agent
By:
----------------------------
Title:
-------------------------
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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 Sixth 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 Sixth Amendment to Amended and
Restated Loan and Security Agreement.
ATTEST: DANPEN, INC.
By:
------------------------------
Title:
---------------------------
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SCHEDULE 1
Payment Dates Quarterly Principal Danskin Tranche Pennaco Tranche
------------- Installments --------------- ---------------
------------
9/30/96 $ 333,333.33 $166,666.67 $166,666.66
12/31/96 $ 333,333.33 $166,666.67 $166,666.66
3/31/97 $ --0-- $ --0-- $ --0--
6/30/97 $ --0-- $ --0-- $ --0--
9/30/97 $ --0-- $ --0-- $ --0--
12/31/97 $ --0-- $ --0-- $ --0--
3/31/98 $ 750,000.00 $625,000.00 $125,000.00
6/30/98 $ 1,396,000.00 $1,163,333.33 $232,666,67
9/30/98 $ 1,396,000.00 $1,163,333.33 $232,666,67
12/31/98 $ 1,396,000.00 $1,163,333.33 $232,666,67
3/31/99 $ 1,396,000.00 $1,163,333.33 $232,666,67
6/30/99 $ 1,000,000.00 $875,000.00 $125,000.00
9/30/99 $ 1,000,000.00 $875,000.00 $125,000.00
12/31/99 $ 1,000,000.00 $875,000.00 $125,000.00
3/31/00 $ 1,000,000.00 $875,000.00 $125,000.00
6/30/00 $ 1,250,000.00 $1,000,000.00 $250,000.00
9/30/00 $ 1,250,000.00 $1,000,000.00 $250,000.00
12/31/00 $ 1,250,000.00 $1,000,000.00 $250,000.00
3/31/01 $ 1,250,000.00 $1,000,000.00 $250,000.00
