Exhibit 10.28
ELEVENTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS ELEVENTH AMENDMENT AND MODIFICATION TO LOAN AND SECURITY
AGREEMENT (the "Amendment") is made effective as of December 14, 2001 by and
among TODAY'S MAN, INC., a Pennsylvania corporation ("Borrower"); each of the
Subsidiaries of the Borrower identified under the caption "Guarantor" on the
signature pages of this Amendment (individually, a "Guarantor" and,
collectively, the "Guarantors"); each of the financial institutions identified
under the caption "Lenders" on the signature pages of this Amendment (including
without limitation Standard Federal Bank National Association in such capacity)
(individually, a "Lender" and, collectively, the "Lenders"); and STANDARD
FEDERAL BANK NATIONAL ASSOCIATION, formerly known as Michigan National Bank, as
successor in interest to Mellon Bank, N.A., as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
BACKGROUND
A. Borrower, Guarantors, Lender and Agent previously entered into a
certain Loan and Security Agreement dated December 4, 1998, as amended by (i)
that certain First Amendment and Modification to Loan and Security Agreement
dated Xxxxx 00, 0000, (xx) that certain Second Amendment and Modification to
Loan and Security Agreement dated October 13, 1999, (iii) that certain Third
Amendment and Modification to Loan and Security Agreement dated March 15, 2000,
(iv) that certain Fourth Amendment and Modification to Loan and Security
Agreement dated May 1, 2000, (v) that certain Fifth Amendment and Modification
to Loan and Security Agreement dated May 11, 2000, (vi) that certain Sixth
Amendment and Modification to Loan and Security Agreement dated August 16, 2000,
(vii) that certain Seventh Amendment and Modification to Loan and Security
Agreement dated November 15, 2000, (viii) that certain Eighth Amendment and
Modification to Loan and Security Agreement dated February 28, 2001, (ix) that
certain Ninth Amendment and Modification to Loan and Security Agreement dated
June 14, 2001, and (x) that certain Tenth Amendment and Modification to Loan and
Security Agreement dated September 21, 2001 (the "Tenth
Amendment")(collectively, the "Loan Agreement"), pursuant to which, inter alia,
Lender agreed to extend to Borrower a revolving credit facility up to a maximum
outstanding principal amount of Twenty-Eight Million Dollars ($28,000,000.00),
which maximum outstanding principal amount shall be reduced to Twenty-Five
Million Dollars ($25,000,000.00) as of December 31, 2001 in accordance with the
terms and conditions of the Tenth Amendment.
B. Borrower, Guarantors, Lender and Agent are entering into this
Amendment to amend certain terms and conditions of the Loan Agreement.
C. Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth for such terms in the Loan Agreement.
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NOW, THEREFORE, in consideration of the foregoing premises and
intending to be legally bound hereby, the parties hereto agree as follows:
1. References. Notwithstanding anything to the contrary
contained in the Loan Agreement or the other Loan Documents, all references to
"Agent", "Lender" (when used to refer to Mellon Bank, N.A. or Michigan National
Bank), "Mellon", "Mellon Bank, N.A.", "Michigan" or "Michigan National Bank" in
the Loan Agreement or the other Loan Documents shall be deemed to be a reference
to Standard Federal Bank National Association, formerly known as Michigan
National Bank, as successor in interest to Mellon Bank, N.A., in such
capacities.
2. Contract Period. The defined term "Contract Period" as set
forth in Section 1.1 of the Loan Agreement shall be and is hereby amended to
read in its entirety as follows:
"Contract Period" means the period of time commencing on the
date of this Agreement and expiring on February 3, 2003."
3. Termination of Revolving Credit Facility and Termination
Fee. In conjunction with the resetting of the Contract Period, Section 7.10(ii)
of the Loan Agreement shall be and is hereby amended to read in its entirety as
follows:
"(ii) If the termination occurs after March 15, 2001,
but on or before February 3, 2003, the termination fee will be
equal to $1,050,000.00."
4. Eligible In-Transit Inventory Sublimit. Section 2.4 of the
Loan Agreement shall be and is hereby amended to read in its entirety as
follows:
"2.4 Eligible In-Transit Inventory Sublimit.
Notwithstanding anything herein or elsewhere to the contrary,
the maximum amount of Revolving Credit Facility Usage based
upon the Value of the Borrower's Eligible In-Transit Inventory
shall not exceed $1,250,000.00."
5. Letters of Credit. Section 4.4 of the Loan Agreement shall
be and is hereby amended to read in its entirety as follows:
"Sublimits. Agent shall have no obligation (a) to
issue any Letter of Credit, if the aggregate outstanding
undrawn amount of all Letters of Credit would exceed
$5,000,000.00; (b) to issue any Standby Letters of Credit, if
the aggregate outstanding undrawn
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amount of all Standby Letters of Credit would exceed
$2,000,000.00; (c) to issue any Letter of Credit, if a Default
or Event of Default has occurred; or (d) to issue any Letter
of Credit if the Revolving Credit Facility Usage plus the
amount of such new Letter of Credit to be issued exceeds (i)
the Borrowing Base plus permitted Out-of-Formula Advances
under Section 2 of the Tenth Amendment and Modification to
Loan and Security Agreement (as reduced by all Reserves), or
(ii) the Maximum Revolving Credit Facility Amount."
6. Tangible Net Worth. Section 13.1 of the Loan Agreement
shall be and is hereby amended to read in its entirety as follows:
"13.1. Tangible Net Worth. Borrower will maintain
Tangible Net Worth of not less than the following amounts for
the following periods:
Amount Periods
------ -------
$29,900,000.00 as of December 30, 2000 and at all
times thereafter until February 2,
2001;
$25,077,000.00 as of February 3, 2001 and at all
times thereafter until March 2, 2001;
$23,576,000.00 as of March 3, 2001 and at all times
thereafter until April 6, 2001;
$22,977,000.00 as of April 7, 2001 and at all times
thereafter until May 4, 2001;
$22,174,000.00 as of May 5, 2001 and at all times
thereafter until June 1, 2001;
$21,995,000.00 as of June 2, 2001 and at all times
thereafter until July 6, 2001;
$21,721,000.00 as of July 7, 2001 and at all times
thereafter until August 3, 2001;
$20,238,000.00 as of August 4, 2001 and at all times
thereafter until August 31, 2001;
$18,894,000.00 as of September 1, 2001 and at all times
thereafter until October 5, 2001;
$17,883,000.00 as of October 6, 2001 and at all times
thereafter until November 2, 2001;
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$17,064,000.00 as of November 3, 2001 and at all
times thereafter until November 30, 2001;
$17,503,000.00 as of December 1, 2001 and at all
times thereafter until January 4, 2002;
$20,252,000.00 as of January 5, 2002 and at all
times thereafter until February 1, 2002; and
$19,597,000.00 as of February 2, 2002 and at all
times thereafter."
7. Indebtedness to Tangible Net Worth. Section 13.2 of the
Loan Agreement shall be and is hereby amended to read in its entirety as
follows:
"13.2. Indebtedness to Tangible Net Worth Ratio.
Borrower will maintain a ratio of Indebtedness (excluding any
Subordinated Indebtedness) to Tangible Net Worth of not more
than (i) 1.45 to 1.0 as of December 30, 2000 and all times
thereafter through February 2, 2001, (ii) 1.75 to 1.0 as of
February 3, 2001 and all times thereafter until Xxxxx 0, 0000,
(xxx) 2.00 to 1.0 as of March 3, 2001 and at times thereafter
through May 4, 2001, (iv) 2.20 to 1.0 as of May 5, 2001 and at
times thereafter through June 1, 2001, (v) 2.00 to 1.0 as of
June 2, 2001 and at times thereafter through July 6, 2001,
(vi) 2.15 to 1.0 as of July 7, 2001 and at all times
thereafter through August 31, 2001, (vii) 2.25 to 1.0 as of
September 1, 2001 and at all times through October 5, 2001,
(viii) 2.50 to 1.0 as of October 6, 2001 and at all times
thereafter through November 2, 2001, (ix) 3.10 to 1.0 as of
November 3, 2001 and at all times thereafter through January
4, 2002, and (x) 2.25 to 1.0 as of January 5, 2002 and at all
times thereafter."
8. Net Income / Net Loss. Section 13.5 of the Loan Agreement
shall be and is hereby amended to read in its entirety as follows:
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"13.5. Net Income / Net Loss. Borrower will maintain
a level of Net Income / Net Loss of not less than the
following amounts for the following periods (where a loss is
indicated, such loss shall not be greater than the indicated
amount):
Amount Period
------ ------
($2,150,000.00) For the fiscal month ending March 3, 2001
($600,000.00) For the fiscal month ending April 7, 2001
($1,350,000.00) For the fiscal month ending May 5, 2001
($1,000,000.00) For the fiscal month ending June 2, 2001
($1,000,000.00) For the fiscal month ending July 7, 2001
($2,000,000.00) For the fiscal month ending August 4, 2001
($1,850,000.00) For the fiscal month ending September 1, 2001
($1,000,000.00) For the fiscal month ending October 6, 2001
($1,250,000.00) For the fiscal month ending November 3, 2001
($1,000,000.00) For the fiscal month ending December 1, 2001
and for each fiscal month end thereafter
9. Store Closing Reserve. Agent and Lender agree that in
determining Borrower's compliance with the financial covenants set forth in
Sections 13.1, 13.2 and 13.5 of the Loan Agreement (as amended above), such
covenant calculations will exclude the effect of the reserves taken or to be
taken by Borrower as reflected on Borrower's financial statements for the period
from October 6, 2001 to February 2, 2002 in connection with the closing of
certain of Borrower's retail store locations.
10. Amendment and Restatement of Financial Covenants. Borrower
agrees that Agent and Lender may amend and restate in its entirety the financial
covenants set forth in Article 13 of the Loan Agreement, in their sole
discretion, at such time as Borrower obtains any New Capital Funds. Borrower
agrees to execute and deliver to Agent an amendment to the Loan Agreement
evidencing such amendment and restatement of the financial covenants in form and
content acceptable to Agent.
11. Fees. Borrower agrees to pay to Agent (for the benefit of
Lender) certain fees in connection with Agent and Lender entering into this
Amendment.
12. Confirmation of Collateral. Nothing contained herein shall
be deemed to be a compromise, satisfaction, accord and satisfaction, novation or
release of any of the Loan Documents, or any rights or obligations thereunder,
or a waiver by Agent or any Lender of any of its rights under the Loan Documents
or at law or in equity. All liens, security interest, rights and remedies
granted to Agent or Lenders in Loan Documents are hereby ratified, confirmed and
continued. Borrower and Guarantors acknowledge and agree that the term "Loan
Documents" as used in the Loan Agreement and any other documents executed in
connection therewith shall include, without limitation, this Amendment and any
and all other documents executed in connection herewith.
13. Challenge to Enforcement. Borrower and Guarantors
acknowledge and agree that they do not have any defense, set-off, counterclaim
or challenge against the payment of any sums owing under the Loan Documents, or
the enforcement of any of the terms or conditions thereof.
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14. Representation and Warranties. Borrower and Guarantors
hereby represent and warrant, which representations and warranties shall survive
until all Obligations are paid and satisfied in full, as follows:
a. All representations and warranties of Borrower and
Guarantors set forth in the Loan Documents are true and complete in all material
respects as of the date hereof.
b. Upon the effectiveness of this Amendment, no condition or
event exists or has occurred which would constitute an event of default under
the Loan Documents or under any other material agreement between Borrower, any
Guarantor and any other third party (or would, upon the giving of notice or the
passage of time, or both constitute an event of default).
c. Except as otherwise previously disclosed to Agent in
writing, Borrower has not received any notice of default or event of default
from any other lender, trustee or lessor with respect to any other loan,
financing or lease agreement.
d. The execution and delivery of this Amendment by Borrower
and Guarantors and all documents and agreements to be executed and delivered
pursuant to the terms hereof:
(i.) have been duly authorized by all requisite
corporate action by Borrower and by each Guarantor;
(ii.) will not conflict with or result in the breach
of or constitute a default (upon the passage of time, delivery of notice or
both) under Borrower's or any Guarantor's Articles of Incorporation, By-Laws or
any applicable statute, law, rule, regulation or ordinance or any indenture,
mortgage, loan or other document or agreement to which Borrower or any Guarantor
is a party or by which any of them is bound or affected; and
(iii.) will not result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of Borrower or any Guarantor, except liens in favor of the
Agent or as permitted hereunder or under the Loan Documents.
15. Conditions. The obligation of Agent and Lender to enter
into this Amendment is subject to the following conditions (any of which may be
waived by Agent):
15.1 Loan Documents. Borrower and Guarantors and all
other required persons and entities will have executed and delivered to Agent
this Amendment and such other documents as Agent may require.
15.2 Secretary Certificate. Borrower will have
delivered to Agent a certificate from the Secretary of Borrower and each
Guarantor attesting to the resolutions of Borrower's and each Guarantor's board
of directors authorizing its execution, delivery and performance of the Loan
Agreement, this Amendment, the other Loan Documents to which Borrower and each
Guarantor, respectively, is a party and authorizing certain specific officers of
Borrower and each Guarantor to execute the same. Such certificate shall include
a list of each member of the Borrower's and each Guarantor's board of directors
and officers by name and title.
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15.3 Other Documents. Such other documents as may be
required to be submitted to Agent by the terms hereof or any of the Loan
Documents shall have been delivered by or on behalf of Borrower and Guarantors
to Agent.
15. Additional Documents; Further Assurances. Borrower
covenants and agrees to execute and deliver to Agent, or to cause to be executed
and delivered to Agent contemporaneously herewith, at the sole cost and expense
of Borrower, any and all other documents, agreements, statements, resolutions,
certificates, consents and information as Agent may require in connection with
the matters or actions described herein. Borrower further covenants and agrees
to execute and deliver to Agent or to cause to be executed and delivered at the
sole cost and expense of Borrower, from time to time, any and all other
documents, agreements, statements, certificates and information as Agent shall
reasonably request to evidence or effect the terms hereof, the Loan Agreement,
as amended, or any of the other Loan Documents, or to enforce or to protect
Agent's interest in the Collateral. All such documents, agreements, statements,
certificates and information shall be in form and content acceptable to Agent in
its sole discretion.
16. Certain Fees, Costs, Expenses and Expenditures. Borrower
will pay all of the Agent's expenses in connection with the review, preparation,
negotiation, documentation and closing of this Amendment and the consummation of
the transactions contemplated hereunder, including without limitation, costs and
fees and expenses of counsel retained by Agent and all fees related to filings,
recording of documents and searches, whether or not the transactions
contemplated hereunder are consummated. Nothing contained herein shall limit in
any manner whatsoever any Lender's or Agent's right to reimbursement under any
of the Loan Documents.
17. Communications and Notices. All notices, requests and
other communications made or given in connection with this Amendment shall be
made in accordance with the provisions of the Loan Agreement.
18. Time of Essence. Time is of the essence of this Amendment.
19. No Waiver. Except as otherwise provided herein, nothing
contained and no actions taken by Agent in connection herewith shall constitute
nor shall they be deemed to be a waiver, release or amendment of or to any
rights, remedies, or privileges afforded to Agent under the Loan Documents or
under the UCC. Nothing herein shall constitute a waiver by Agent of Borrower's
or any Guarantor's compliance with the terms of the Loan Documents, nor shall
anything contained herein constitute an agreement by Agent to enter into any
further amendments with Borrower and Guarantors.
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20. Inconsistencies. To the extent of any inconsistencies
between the terms and conditions of this Amendment and the terms and conditions
of the Loan Documents, the terms and conditions of this Amendment shall prevail.
All terms and conditions of the Loan Documents not inconsistent herewith shall
remain in full force and effect and are hereby ratified and confirmed by
Borrower and Guarantors.
21. Binding Effect. This Amendment and all rights and powers
granted hereby will bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
22. Severability. The provisions of this Amendment and all
other Loan Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.
23. No Third Party Beneficiaries. The rights and benefits of
this Amendment and the Loan Documents shall not inure to the benefit of any
third party.
24. Modifications. No modifications of this Amendment or any
of the Loan Documents shall be binding or enforceable unless in writing and
signed by or on behalf of the party against whom enforcement is sought.
25. Holidays. If the day provided herein for the payment of
any amount or the taking of any action falls on a Saturday, Sunday or public
holiday at the place for payment or action, then the due date for such payment
or action will be the next succeeding Business Day.
26. Law Governing. This Amendment has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth, without regard to
any rules or principles regarding conflicts of law or any rule or canon of
construction which interprets agreements against the draftsman.
27. Headings. The headings of the Articles, Sections,
paragraphs and clauses of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.
28. Counterparts; Facsimile Signatures. This Amendment may be
executed in any number of counterparts, all of which taken together constitute
one and the same instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. Any signature delivered via facsimile
shall be deemed an original signature hereto.
29. Joint and Several. The obligations of Borrower and
Guarantors under this Amendment shall be joint and several obligations.
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30. Waiver of Right to Trial by Jury. BORROWER, GUARANTORS AND
THE LENDER GROUP WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THIS AMENDMENT, (b) ARISING UNDER ANY OF
THE OTHER LOAN DOCUMENTS OR (c) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF BORROWER, GUARANTORS OR ANY MEMBER OF THE LENDER
GROUP WITH RESPECT TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BORROWER, GUARANTORS AND THE LENDER GROUP AGREE
AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF BORROWER, GUARANTORS AND THE LENDER GROUP TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. BORROWER AND GUARANTORS ACKNOWLEDGE THAT
THEY HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION,
THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT THEY
VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, intending to be legally bound hereby.
BORROWER:
TODAY'S MAN, INC., a Pennsylvania corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
[CORPORATE SEAL] Name/Title: Xxxxx X. Xxxxxxx, Executive Vice
President & Chief Financial Officer
-----------------------------------
GUARANTORS:
BENMOL, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Name/Title: Xxxxx X. Xxxxxxx, President
-----------------------------------
D & L, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Name/Title: Xxxxx X. Xxxxxxx, President
-----------------------------------
XXXX & XXXX, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx, President
-------------------------------------------
[CORPORATE SEAL] Name/Title: Xxxxx X. Xxxxxxx, President
-----------------------------------
XXXXXXXXX.XXX INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
[CORPORATE SEAL] Name/Title: Xxxxx X. Xxxxxxx, President
-----------------------------------
(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
LENDERS:
-------
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION,
formerly known as
Michigan National Bank,
as successor in interest
to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name/Title: Xxxxxx X. Xxxxxx, Vice President
------------------------------------
AGENT:
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION,
formerly known as
Michigan National Bank,
as successor in interest
to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name/Title: Xxxxxx X. Xxxxxx, Vice President
------------------------------------
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