Exhibit 10.20
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO Loan and Security Agreement (the "Amendment")
is made and entered into effective as of the 4th day of August, 1999, by and
among Bank of America, N.A., formerly NationsBank, N.A., as agent for the
lenders party to the Loan Agreement (as hereafter defined) from time to time
(the "Agent"), the financial institutions party to the Loan Agreement (the
"Lenders"), TULTEX CORPORATION, a Virginia corporation ("Tultex"), the
Subsidiaries of Tultex party hereto as borrowers (together with Tultex, the
"Borrowers"), and the Subsidiaries of Tultex party hereto as guarantors (the
"Guarantors", and, together with the Borrowers, the "Obligors").
W I T N E S S E T H :
WHEREAS, the Agent, the Lenders and the Obligors entered into that
certain Loan and Security Agreement, dated May 7, 1999 (as amended, the "Loan
Agreement"), pursuant to which the Agent and the Lenders agreed to extend
certain financial accommodations to the Obligors; and
WHEREAS, pursuant to the Loan Agreement, the Obligors agreed, among
other things, to comply with certain covenants set forth therein, including
certain financial covenants; and
WHEREAS, the Obligors have failed to comply with the financial
covenants set forth in Sections 11.1(a) and (b) of the Loan Agreement; and
WHEREAS, the Obligors' agreement to comply with such financial
covenants was a material inducement to the Agent's and the Lenders' agreement to
enter into the Loan Agreement and extend financial accommodations thereunder;
and
WHEREAS, the Obligors have requested that the Agent and the Lenders
waive such financial covenant defaults, and the Agent and the Lenders are
willing to do so, subject to the terms and conditions set forth herein,
including the amendments to the Loan Agreement set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly
defined herein shall have the respective meanings given to such terms in the
Loan Agreement. Each reference in the Loan Agreement to "NationsBank" shall mean
Bank of America, N.A.
2. The parties hereto acknowledge that the Obligors are in default
under SECTIONS 11.1(A) and (B) of the Loan Agreement for the fiscal quarter
ending on July 3, 1999 (the "Specified Defaults"). In reliance upon the
representations, warranties, agreements and covenants of the Obligors set forth
herein and in the Loan Agreement, as amended hereby, the Agent and the Lenders
agree to waive the Specified Defaults. However, the Agent and the Lenders
reserve all of their rights and remedies at all times with respect to any
Default or Event of Default, other than the Specified Defaults, whether
presently existing or occurring hereafter.
3. The Loan Agreement is amended by deleting the definition of
"Applicable Margin" set forth in SECTION 1.1 and replacing it with the
following:
"Applicable Margin" means, as to (a) Prime Rate Loans, 1.75%,
and (b) LIBOR Loans, 3.75%, as adjusted in accordance with the
performance pricing matrix set forth on ANNEX II attached hereto based
upon the ratio of Consolidated Funded Indebtedness as of the date of
determination to Consolidated EBITDA for the preceding four fiscal
quarters. Adjustments to the Applicable Margin shall be effective as of
(i) the first day of the calendar month which begins at least 10 days
after the Agent's receipt of the Obligors' audited financial statements
as of each fiscal year end (commencing with the financial statements
for the fiscal year ending on January 1, 2000) in conformance with
SECTION 10.1(A), together with the accountant's certificate described
in SECTION 10.2 setting forth the calculations necessary to determine
the ratio referred to above, and (ii) the first day of the calendar
month which begins at least 10 days after the Agent's receipt of the
Obligors' financial statements as of the last day of each subsequent
fiscal quarter in conformance with SECTION 10.1(B), together with the
officer's certificate described in SECTION 10.3 setting forth the
calculations necessary to determine the ratio referred to above;
PROVIDED no decrease in the Applicable Margin shall be made if a
Default or Event of Default exists as of the effective date of such
scheduled adjustment. In the event the Obligors fail to provide in a
timely manner the financial statements and certificates referred to
above, and without prejudice to any additional rights under SECTIONS
4.1(D) and 12.2, the maximum Applicable Margin shall apply to all LIBOR
Loans and Prime Rate Loans until the first day of the calendar month
which begins at least 10 days after the Agent's receipt of such
financial statements and certificates.
4. The Loan Agreement is amended by deleting the definition of
"Borrowing Base" set forth in SECTION 1.1 and replacing it with the following:
"Borrowing Base" means at any time an amount equal to the
lesser of:
(a) the Revolving Credit Facility MINUS the sum of
(i) the Letter of Credit Reserve, PLUS
(ii) such other reserves as the Agent in its
reasonable discretion may establish from time to time, and
(b) an amount equal to
(i) 85% (or such lesser percentage as the Agent may
in its reasonable discretion determine from time to time) of the face
value of Eligible Receivables due and owing at such time, PLUS
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(ii) 60% (or such lesser percentage as the Agent may
in its reasonable discretion determine from time to time) of the face
value of Eligible ▇▇▇▇ and Hold Receivables due and owing at such time,
PLUS
(iii) THE LESSER OF
(A) the product of (1) the lesser of (x)
cost (determined on a first-in-first-out accounting basis and as
adjusted, until Tultex has updated its standard inventory costing
systems in accordance with SECTION 9.15, in the case of raw materials
and finished goods, for the applicable Capitalized Variance set forth
below) and (y) fair market value of Eligible Inventory, net of reserves
for obsolescence, at such time (the "Eligible Inventory Amount"),
multiplied by (2) the ratio of (x) 85% of the median orderly
liquidation value of finished goods, greige goods and raw material
Inventory of the Obligors included in the most recent Inventory
Appraisal, as determined by the Inventory Appraiser pursuant to such
Inventory Appraisal, to (y) the Eligible Inventory Amount as of the
date of such Inventory Appraisal, PROVIDED that no more than $4,000,000
shall be included in the Borrowing Base with respect to inventory
located at retail stores, AND
(B) the Applicable Inventory Advance
Percentage of the lesser of cost (determined on a first-in-first-out
accounting basis and as adjusted, until Tultex has updated its standard
inventory costing systems in accordance with SECTION 9.15, in the case
of raw materials and finished goods, for the applicable Capitalized
Variance set forth below) and fair market value of Eligible Inventory,
net of reserves for obsolescence, at such time, PROVIDED that no more
than $4,000,000 shall be included in the Borrowing Base with respect to
inventory located at retail stores, AND
(C) the Inventory Sublimit, MINUS
(iv) the sum of
(A) the Letter of Credit Reserve, PLUS
(B) such other reserves as the Agent in its
reasonable discretion may establish from time to time.
As used herein, "Applicable Inventory Advance Percentage" means (x) 50%
in the case of Eligible Inventory consisting of raw materials, (y) 40%
in the case of Eligible Inventory consisting of greige goods, and (z)
60% in the case of Eligible Inventory consisting of finished goods, or,
in any such case, such lesser percentage as the Agent may in its
reasonable discretion determine from time to time. As used herein,
"Inventory Sublimit" means (i) $100,000,000 at all times prior to
October 2, 1999, (2) $90,000,000 at all times on or after October 2,
1999 but prior to November 6, 1999, (3) $80,000,000 at all times on or
after November 6, 1999 but prior to December 4, 1999, and (4)
$75,000,000 at all times thereafter. As used herein, "Capitalized
Variance" means, (A) in the case of raw materials, a reduction equal to
5.5% of the amount of Eligible Inventory consisting of raw materials,
and (B) in the case of finished goods, an increase equal to the lesser
of $13,000,000 and 10% of the amount of Eligible Inventory consisting
of finished goods.
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5. The Loan Agreement is amended by deleting SECTION 11.1(B) and
replacing it with the following:
(b) Minimum EBITDA. Permit the EBITDA of Tultex and its
Consolidated Subsidiaries for the third fiscal quarter of fiscal year
1999 to be less than $3,000,000.
6. As consideration for the accommodations set forth herein, the
Obligors shall pay to the Lenders a non-refundable fee of $100,000, such fee to
be shared on a Ratable basis. The Obligors acknowledge that such fee shall
constitute compensation for the Lenders' waiver and other accommodations
contemplated hereby and shall not constitute interest. The Obligors agree that
such fee shall be fully earned as of the date hereof.
7. To induce the Agent and the Lenders to enter into this Amendment and
grant the accommodations set forth herein, the Obligors hereby represent and
warrant that, as of the date hereof, except for the Specified Defaults, there
exists no Default or Event of Default.
8. To induce the Agent and the Lenders to enter into this Amendment and
grant the accommodations set forth herein, each Obligor agrees that (a) except
as expressly set forth herein, neither the Agent nor any Lender has agreed to
(and has no obligation whatsoever to discuss, negotiate or agree to) any other
restructuring, modification, amendment, waiver or forbearance with respect to
the Secured Obligations or the Loan Agreement, (b) no understanding with respect
to any other restructuring, modification, amendment, waiver or forbearance with
respect to the Secured Obligations or the Loan Agreement shall constitute a
legally binding agreement or contract, or have any force or effect whatsoever,
unless and until reduced to writing and signed by authorized representatives of
each party hereto, and (c) the execution and delivery of this Amendment has not
established any course of dealing between the parties hereto or created any
obligation or agreement of the Agent or any Lender with respect to any future
restructuring, modification, amendment, waiver or forbearance with respect to
the Secured Obligations or the Loan Agreement.
9. To induce the Agent and the Lenders to enter into this Amendment and
grant the accommodations set forth herein, each Obligor (a) acknowledges and
agrees that no right of offset, defense, counterclaim, claim or objection exists
in favor of such Obligor against the Agent or any Lender arising out of or with
respect to the Loan Agreement, the other Loan Documents or the Secured
Obligations, and (b) releases, acquits, remises and forever discharges the Agent
and each Lender and its Affiliates and all of their past, present and future
officers, directors, employees, agents, attorneys, representatives, successors
and assigns from any and all claims, demands, actions and causes of action,
whether at law or in equity, whether now accrued or hereafter maturing, and
whether known or unknown, which such Obligor now or hereafter may have by reason
of any manner, cause or things to and including the date of this Amendment with
respect to matters arising out of or with respect to the Loan Agreement, the
other Loan Documents or the Secured Obligations.
10. The Obligors hereby restate, ratify, and reaffirm each and every
term, condition, representation and warranty heretofore made by each of them
under or in connection with the execution and delivery of the Loan Agreement, as
amended hereby, and the other Loan Documents, as fully as though such
representations and warranties had been made on the date hereof and with
specific reference to this Amendment, except to the extent that any such
representation or warranty relates solely to a prior date.
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11. In addition to any other fees described herein, the Obligors agree
to pay on demand all reasonable costs and expenses of the Agent and each Lender
in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and out-of-pocket expenses of
legal counsel to the Agent and each Lender.
12. 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.
13. This Amendment shall be binding upon and inure to the benefit of
the successors and permitted assigns of the parties hereto.
14. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Georgia, other than its laws respecting choice of
law.
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IN WITNESS WHEREOF, the Obligors, the Agent and the Lenders have caused
this Amendment to be duly executed under seal by their authorized officers in
several counterparts, all as of the date first above written.
BORROWERS:
TULTEX CORPORATION
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President and General Counsel
CALIFORNIA SHIRT SALES, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
DOMINION STORES, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TULTEX/T-SHIRT CITY, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TRACK GEAR, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
GUARANTORS:
AKOM, LTD.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
DOMINION DISTRIBUTION, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
LIGA MAYOR DE MEXICO S.A. DE C.V.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Legal Representative
TULTEX SUBSIDIARY (VA), INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TULTEX SUBSIDIARY (MASS), INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TULTEX CANADA, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TULTEX INTERNATIONAL, INC.
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
SWEATJET INCORPORATED
By:
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O. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
LENDERS:
BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION (SOUTHERN)
By:
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Name:
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Title:
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PNC BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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THE CIT GROUP/COMMERCIAL SERVICES, INC.
By:
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Name:
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Title:
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AGENT:
BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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