Exhibit 10.15
FIFTH AMENDMENT
TO
AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
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THIS FIFTH AMENDMENT TO AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT (this "Agreement") is made as of the 13th day of March, 2001, by and
among XXXXX INTERNATIONAL ENTERPRISES CORP., a corporation organized and
existing under the laws of the State of New York, BLUE RIDGE TEXTILE
MANUFACTURING, INC., a corporation organized under the laws of the State of
Georgia, and OHIO GARMENT RENTAL, INC., a corporation organized under the laws
of the State of Ohio (each is referred to individually as a "Borrower and
collectively, the "Borrowers"), and BANK OF AMERICA, N.A., a national banking
association, successor by merger to NationsBank, N.A. ("Bank of America"),
LASALLE BUSINESS CREDIT, INC., a corporation organized under the laws of the
State of Delaware ("LaSalle"), and PNC BANK, NATIONAL ASSOCIATION, a national
banking association ("PNC") (Bank of America, LaSalle and PNC are referred to
individually as a "Lender" and collectively as the "Lenders"), and BANK OF
AMERICA, N.A., a national banking association, successor by merger to
NationsBank, N.A, as collateral and administrative agent for the Lenders (the
"Agent").
RECITALS
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A. The Borrowers and Bank of America entered into that certain Amended
and Restated Financing and Security Agreement dated as of June 26, 1998, as
amended by (i) that certain First Amendment to Amended and Restated Financing
and Security Agreement dated June 9, 1999, (ii) that certain Second Amendment to
Amended and Restated Financing and Security Agreement dated January 27, 2000,
(iii) that certain Third Amendment to Amended and Restated Financing and
Security Agreement dated September 11, 2000 and (iv) that certain Fourth
Amendment to Amended and Restated Financing and Security Agreement dated January
25, 2001 (as amended, restated, modified, substituted, extended, and renewed
from time to time, the "Financing Agreement"). Unless otherwise expressly
defined in this Agreement, terms defined in the Financing Agreement shall have
the same meaning under this Agreement.
B. Bank of America and LaSalle entered into that certain Assignment and
Assumption Agreement dated December 31, 1998 (and as amended, restated,
modified, substituted, extended, and renewed from time to time, the "LaSalle
Assumption Agreement"). Under the terms of the LaSalle Assumption Agreement,
Bank of America sold to LaSalle, among other things, interests in the
Commitment, in the Obligations, and in the Collateral, without recourse, on the
condition, among others as set forth in the LaSalle Assumption Agreement, that
LaSalle assume Bank of America's obligations to the extent of LaSalle's
interest, as a Lender under the Financing Agreement.
C. Bank of America and PNC entered into that certain Assignment and
Assumption Agreement dated December 31, 1998 (and as amended, restated,
modified, substituted, extended, and renewed from time to time, the "PNC
Assumption Agreement"). Under the terms of the PNC Assumption Agreement, Bank of
America sold to PNC, among other things, interests in the
Commitment, in the Obligations, and the Collateral, without recourse, on the
condition, among others as set forth in the PNC Assumption Agreement, that PNC
assume Bank of America's obligations to the extent of PNC's interest, as a
Lender under the Financing Agreement.
D. Bank of America, LaSalle and PNC entered into that certain Agency
Agreement dated December 31, 1998 (and as amended, restated, modified,
substituted, extended, and renewed from time to time, the "Agency Agreement").
Under the terms of the Agency Agreement, the Lenders designated and appointed
Bank of America as the agent under the Financing Agreement and the Financing
Documents (the "Agent"), and authorized Bank of America, as Agent, to take such
action or to refrain from taking such action on the Lenders' behalf under the
provisions of the Financing Agreement and the Financing Documents.
E. The Financing Agreement provides for some of the agreements between
the Borrowers, the Lenders and the Agent with respect to the "Loans" (as defined
in the Financing Agreement), including a revolving credit facility in an amount
not to exceed $30,000,000, a letter of credit facility in the amount of
$3,000,000, an acquisition facility in an amount not to exceed $10,000,000 and a
capital expenditure facility in an amount not to exceed $15,000,000.
F. The Borrowers have requested that the Lenders and the Agent increase
the revolving credit facility from $30,000,000 to $38,198,330, decrease the
acquisition facility from $10,000,000 to $900,835, waive certain financial
covenant defaults and amend other provisions of the Financing Agreement.
G. The Lenders and the Agent are willing to agree to the Borrowers'
request on the condition, among others, that this Agreement be executed.
AGREEMENTS
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrowers,
the Lenders and the Agent agree as follows:
1. The Borrowers, 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 Borrowers represent and warrant to the Agent and Lenders as
follows:
(a) Each 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) Each Borrower has the power and authority to execute and deliver
this Agreement and perform its obligations hereunder and has taken all necessary
and appropriate corporate action to authorize the execution, delivery and
performance of this Agreement.
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(c) 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 legally binding obligation of each Borrower,
enforceable in accordance with its terms.
(d) All of the Borrowers' 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 Borrowers' execution of this Agreement.
(e) 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 Agent and the Lenders under this
Agreement.
3. Section 2.1.1 (Revolving Credit Facility) of the Financing Agreement
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is hereby deleted in its entirety, and the following is substituted in its
place:
Subject to and upon the provisions of this Agreement, the Lender
establishes a revolving credit facility in favor of the Borrowers.
The aggregate of all advances under the Revolving Credit Facility are
sometimes referred to in this Agreement collectively as the "Revolving
Loan".
The principal amount of Thirty Eight Million One Hundred Ninety
Eight Thousand Three Hundred Thirty Dollars ($38,198,330) is the
"Revolving Credit Committed Amount".
During the Revolving Credit Commitment Period, the Lender agrees
to make advances under the Revolving Loan as requested by the
Borrowers from time to time provided that after giving effect to the
Borrowers' request, the outstanding principal balance of the Revolving
Loan would not exceed the lesser of (a) the Revolving Credit Committed
Amount minus the Outstanding Letter of Credit Obligations, or (b) the
most current Borrowing Base.
4. Section 2.1.3 (Borrowing Base) of the Financing Agreement is hereby
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deleted in its entirety, and the following is substituted in its place:
As used in this Agreement, the term "Borrowing Base" means at any
time, an amount equal to the aggregate of (a) eighty-five percent
(85%) of the amount of Eligible Receivables, plus (b) the lesser of
(i) the sum of fifty percent (50%) of the amount of Eligible Inventory
consisting of new merchandise plus the lesser of twenty-five percent
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(25%) of the amount of Eligible Inventory consisting of in-service
inventory or Eight Million Five Hundred Thousand Dollars ($8,500,000),
or (ii) Fifteen Million Dollars ($15,000,000).
The Borrowing Base shall be computed based on the Borrowing Base
Report most recently delivered to and accepted by
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the Lender in its good faith discretion. In the event the Borrowers
fail to furnish a Borrowing Base Report required by Section 2.1.4
below, or in the event the Lender in good faith determines that a
Borrowing Base Report is no longer accurate, the Lender may, in its
sole and absolute discretion exercised from time to time and without
limiting its other rights and remedies under this Agreement, suspend
the making of or limit advances under the Revolving Loan. The
Borrowing Base shall be subject to reduction by amounts credited to
the Collateral Account since the date of the most recent Borrowing
Base Report and by the amount of any Receivable or any Inventory which
was included in the Borrowing Base but which the Lender determines
fails to meet the respective criteria applicable from time to time for
Eligible Receivables or Eligible Inventory.
If, at any time, the total of the aggregate principal amount of
the Revolving Loan and the Outstanding Letter of Credit Obligations
exceeds the Borrowing Base, a borrowing base deficiency ("Borrowing
Base Deficiency") shall exist. Each time a Borrowing Base Deficiency
exists, the Borrowers at the sole and absolute discretion of the
Lender exercised from time to time shall pay the Borrowing Base
Deficiency ON DEMAND to the Lender from time to time.
5. Section 2.3.1 of the Financing Agreement (Acquisition Loan Facility)
is hereby deleted in its entirety and the following is substituted in its place:
Acquisition Loan Facility.
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Subject to and upon the provisions of this Agreement, the Lender
establishes an acquisition loan facility in the maximum principal
amount of Nine Hundred Thousand Eight Hundred Thirty Five Dollars
($900,835) (the "Acquisition Loan Commited Amount") in favor of the
Borrowers. The aggregate of all advances under the Acquisition Loan
Facility are sometimes referred to in this Agreement collectively as
the "Acquisition Loan". The obligation of the Lender to make advances
under the Acquisition Loan is herein called its "Acquisition Loan
Commitment".
Amounts repaid on the Acquisition Loan Facility may not be
reborrowed.
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6. Section 6.1.15 of the Financing Agreement (EBITDA) is hereby deleted
in its entirety and the following is substituted in its place:
6.1.15 EBITDA.
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The Borrowers will maintain, tested as of the last day of each of
the Borrowers' fiscal quarters for the four (4) quarter period ending
on such date, EBITDA of not less than the following:
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Quarters EBITDA
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October 31, 2000 through and including $16,800,000
April 30, 2001
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Quarter ending July 31, 2001 $17,500,000
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October 31, 2001 through and including $19,400,000
July 31, 2002
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October 31, 2002 through and including $21,300,000
July 31, 2003
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October 31, 2003 and thereafter $23,000,000
(applicable if the Revolving Credit
Termination Date has not sooner
occurred)
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7. Section 6.1.17 of the Financing Agreement (Leverage Ratio) is hereby
deleted in its entirety and the following is substituted in its place:
6.1.17 Leverage Ratio.
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The Borrowers will maintain, tested as of the last day of each of
the Borrowers' fiscal quarters for the four (4) quarter period ending
on such date, a ratio of Funded Debt to EBITDA so that it is not more
than the following:
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Quarters Ratio
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October 31, 2000 through and including 6.30 to 1.0
April 30, 2001
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Quarter ending July 31, 2001 6.00 to 1.0
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October 31, 2001 through and including 5.80 to 1.0
July 31, 2002
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October 31, 2002 through and including 5.50 to 1.0
July 31, 2003
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October 31, 2003 and thereafter 5.25 to 1.0
(applicable if the Revolving Credit
Termination Date has not sooner
occurred)
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8. It is a condition of the agreements of the Agent and the Lenders under
this Agreement that at the time this Agreement is executed and delivered:
(a) The Borrowers shall have executed and delivered to the Agent
on behalf of Bank of America a Second Amended and Restated Revolving
Credit Note made payable to the order of Bank of America in the amount
of its Revolving Credit Committed Amount in form and substance
satisfactory to the Agent in the exercise of its sole and absolute
discretion.
(b) The Borrowers shall have executed and delivered to the Agent
on behalf of LaSalle a Second Amended and Restated Revolving Credit
Note made payable to the order of LaSalle in the amount of its
Revolving Credit Committed Amount in form and substance satisfactory
to the Agent in the exercise of its sole and absolute discretion.
(c) The Borrowers shall have executed and delivered to the Agent
on behalf of PNC a Second Amended and Restated Revolving Credit Note
made payable to the order of PNC in the amount of its Revolving Credit
Committed Amount in form and substance satisfactory to the Agent in
the exercise of its sole and absolute discretion.
9. As a condition to the Agent's and the Lenders' agreement to enter into
this Agreement and the waivers granted herein, the Borrowers hereby agree to pay
to the Agent, for the ratable benefit of the Lenders, an amendment fee in the
amount of $20,000, which fee shall be due at the time this Agreement is executed
and is fully earned and non-refundable upon payment.
10. The Lenders and the Agent hereby waive the defaults under Section
6.1.15 and Section 6.1.17 of the Financing Agreement for the fiscal quarter
ending January 31, 2001. This waiver is not intended to, and shall not, waive
any defaults under Section 6.1.15 or Section 6.1.17 other than for the period
specified, and shall not waive any other defaults arising out of non-compliance
by the Borrowers 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.
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11. Each Borrower hereby issues, ratifies and confirms the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. Each Borrower agrees that this Agreement is not intended to
and shall not cause a novation with respect to any or all of the Obligations.
12. Each Borrower acknowledges and warrants that the Lenders and Agent
have acted in good faith and have conducted in a commercially reasonable manner
their relationships with the Borrowers in connection with this Agreement and
generally in connection with the Financing Agreement and the Obligations, each
Borrower hereby waiving and releasing any claims to the contrary.
13. 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 which chooses to deliver its signature by facsimile
agrees to provide a counterpart of this Agreement with its inked signature
promptly to each other party.
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have executed
this Agreement under seal as of the date and year first written above.
ATTEST: XXXXX INTERNATIONAL ENTERPRISES
CORP.
_____________________________ By:__________________________(SEAL)
Name:
Title:
BLUE RIDGE TEXTILE MANUFACTURING,
INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
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OHIO GARMENT RENTAL, INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
WITNESS: BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as a
Lender
_____________________________ By:__________________________(SEAL)
Xxxx Xxxxxxxx
Vice President
WITNESS: LASALLE BUSINESS CREDIT, INC.
_____________________________ By:__________________________(SEAL)
Name:
Title:
WITNESS: PNC BANK, NATIONAL ASSOCIATION
_____________________________ By:__________________________(SEAL)
Name:
Title:
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WITNESS: BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as
Agent
_____________________________ By:__________________________(SEAL)
Xxxx Xxxxxxxx
Vice President
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