EXHIBIT 10.5
FOURTH AMENDMENT
TO
FINANCING AGREEMENT
Fourth Amendment, dated as of June 18, 1998 to the Financing
Agreement, dated as of September 25, 1997, as amended and supplemented prior to
the date hereof (as so amended and supplemented, the "Financing Agreement"), by
and among Norton XxXxxxxxxx, Inc., a Delaware corporation (the "Company"),
Norton XxXxxxxxxx of Xxxxxx, Inc., a New York corporation ("Squire"), Miss
Xxxxx, Inc., a Delaware corporation formerly known as ME Acquisition Corp.
("Miss Xxxxx" and together with Squire, each a "Borrower" and collectively, the
"Borrowers"), the lenders listed on Schedule I hereto under the captions
"Continuing Lenders" (the "Continuing Lenders") and "Departing Lenders" (the
"Departing Lenders" and together with the Continuing Lenders, each a "Lender"
and collectively the "Lenders"), NationsBanc Commercial Corporation, as
collateral agent for the Lenders (in such capacity, the "Collateral Agent") and
The CIT Group/Commercial Services, Inc., as administrative agent for the Lenders
(in such capacity, the "Administrative Agent" and together with the Collateral
Agent, each an "Agent" and collectively, the "Agents").
The Company, the Borrowers, the Lenders and the Agents desire to amend
and restate the Financing Agreement to among other things (a) prepay the term
loan in full, (b) increase the revolving credit facility to $175,000,000, (c)
extend the maturity date of the revolving credit facility to June 18, 2001, (d)
add JJ Acquisition Corp. as a Borrower, and (e) add Fleet Bank, NA as the
documentation agent, in each case on the terms and conditions hereafter set
forth. In addition, the Departing Lenders wish to assign their interests,
rights and obligations under the Financing Agreement to the Continuing Lenders
and the Continuing Lenders wish to accept such assignments.
Accordingly, the Company, the Borrowers, the Agents and the Lenders
hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
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defined herein are used herein as defined in the Financing Agreement as amended
and restated by this Fourth Amendment (the Financing Agreement as amended and
restated by this Fourth Amendment being called the "Restated Financing
Agreement").
2. Amendment of the Financing Agreement. The Financing Agreement
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(including all Exhibits and Schedules thereto) is hereby amended and restated to
read in its entirety as set forth in Annex A hereto. As used therein, the terms
"Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof", and
words of similar import shall, unless the context otherwise requires, mean the
Financing Agreement as amended and restated by this Fourth Amendment.
3. Assignments. (a) On and as of the Amendment Effective Date (as
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hereafter defined), each of the Departing Lenders shall assign and each of the
Continuing Lenders shall purchase, at the principal amount thereof, such
interests in the Revolving Credit Loans and Letter of Credit Obligations
outstanding on such date as shall be necessary in order that, after giving
effect to all such assignments and purchases, the Loans and Letter of Credit
Obligations outstanding will be held by the Continuing Lenders ratably in
accordance with their Pro Rata Shares in the Revolving Credit Commitment, as set
forth in Schedule 1.01A attached to Annex A to this Amendment. Such assignments
and purchases shall be without recourse, representation or warranty, except that
(i) each Departing Lender represents that it is the legal and beneficial owner
of the interests assigned by it free and clear of any Lien and (ii) paragraphs 2
(other than clauses (i) and (v) thereof), 4 and 5 of Exhibit I to the Existing
Financing Agreement are hereby incorporated by reference as if set forth herein
and each Departing Lender shall be deemed to have made the representations,
warranties and statements of Assignor in such paragraphs and each Continuing
Lender shall be deemed to have made the representations, warranties and
statements of Assignee in such paragraphs.
(b) On the Amendment Effective Date (i) each of the Continuing
Lenders shall pay the purchase price for the Revolving Credit Loans purchased by
it pursuant to paragraph (a) of this Section 3 by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not later
than 12:00 noon, New York City time, and (ii) the Administrative Agent shall
promptly pay to each Departing Lender, out of the amounts received by it
pursuant to clause (i) of this paragraph (b), the purchase price for the
interests assigned by it pursuant to such paragraph (a) by wire transfer of
immediately available funds to an account designated by such Departing Lender.
(c) The Company and the Borrowers hereby consent to the
assignments and purchases provided for in paragraphs (a) and (b) of this Section
3 and agree that each Continuing Lender shall have all of the rights of a Lender
under the Financing Agreement with respect to the interests purchased by it
pursuant to such paragraphs. Commencing on the Amendment Effective Date, each
Departing Lender will cease to be a party to, and shall be released from its
obligations under, the Financing Agreement and the other Loan Documents, and the
Departing Lenders shall have no further rights to or interest in any of the
Collateral.
(d) On the Amendment Effective Date the Administrative Agent
shall pay to the Departing Lenders all accrued and unpaid interest and fees due
to such Departing Lenders pursuant to the terms of the Financing Agent and the
Administrative Agent is hereby authorized to charge the Loan Account for such
amounts.
4. Delivery of Notes. The Lenders shall deliver to the
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Administrative Agent, for delivery to and cancellation by the Borrowers, all
Notes issued by the Borrowers and held by the Lenders under the Financing
Agreement (collectively, the "Old Notes"), which Old Notes are hereby deemed
canceled effective from delivery of the New Notes to the Administrative Agent.
The Borrowers (including Xxxx-Xx) shall execute and deliver to the
Administrative Agent for the account of each Continuing Lender the Notes which
such Lender is entitled to receive pursuant to Section 2.04 of the Restated
Financing Agreement, in the form of Exhibit A thereto and in the
principal amount for each Lender equal to its Revolving Credit Commitment (the
"New Notes"). The Administrative Agent shall release and deliver the Old Notes
to the Borrowers for cancellation and deliver the New Notes to the Continuing
Lenders.
5. Conditions to Effectiveness. This Fourth Amendment shall become
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effective only upon satisfaction in full of the following conditions precedent
(the first date upon which all such conditions shall have been satisfied being
herein called the "Amendment Effective Date"):
(i) The Agents shall have received counterparts of this
Fourth Amendment and the Restated Financing Agreement which bear the
signatures of the Company, the Borrowers (including Xxxx-Xx) and each of
the Lenders, as appropriate.
(ii) The Administrative Agent shall have received payment
in full of the Term Loan and all accrued interest thereon.
(iii) Each of the conditions set forth in Section 5.01 of
the Restated Financing Agreement shall be satisfied to the satisfaction of
the Agents.
(iv) All legal matters incident to this Fourth Amendment
and the Restated Financing Agreement shall be satisfactory to the Agents
and their counsel.
6. Representations and Warranties. Each of the Company and the
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Borrowers represents and warrants to the Lenders as follows:
(a) The execution, delivery and performance by the Company and
the Borrowers of this Fourth Amendment and all other documents executed by it in
connection with this Fourth Amendment, the execution, delivery and performance
by each Borrower of the New Notes and the performance by the Company and the
Borrowers of the Restated Financing Agreement (i) have been duly authorized by
all necessary corporate action, (ii) do not violate or create a default under
the Company's or any Borrower's organizational documents, any applicable law or
any contractual restriction binding on or otherwise affecting the Company or any
Borrower or any of the Company's or such Borrower's properties, and (iii) except
as provided in the Loan Documents, do not result in or require the creation of
any Lien, upon or with respect to the Company's or any Borrower's property.
(b) No authorization or approval or other action by, and no
notice to or except for filings of UCC-1 Financing Statements and filing in the
US Patent and Trademark Office, filing with, any Governmental Authority or other
regulatory body is required in connection with the due execution, delivery and
performance by the Company or any of the Borrowers of this Amendment and all
other documents executed by it in connection with this Fourth Amendment, the
execution, delivery and performance by each Borrower of the New Notes and the
performance by the Company and the Borrowers of the Restated Financing
Agreement.
(c) This Fourth Amendment and the Restated Financing Agreement
and all other documents executed in connection with this Fourth Amendment
constitute the legal, valid and binding obligations of the Company and the
Borrowers party thereto, enforceable against such Persons in accordance with
their terms except to the extent the enforceability thereof may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect affecting generally the enforcement of
creditors' rights and remedies and by general principles of equity.
7. Continued Effectiveness of Financing Agreement. Each of the
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Company and the Borrowers hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Amendment Effective Date all references in any such Loan Document to "the
Financing Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Financing Agreement shall mean the Restated Financing
Agreement, and (ii) confirms and agrees that to the extent that any such Loan
Document purports to collaterally assign or pledge to the Collateral Agent, or
to grant to the Collateral Agent a Lien on any collateral as security for the
Obligations of the Company and the Borrowers from time to time existing in
respect of the Existing Financing Agreement and the Loan Documents, such pledge,
collateral assignment and/or grant of a Lien is hereby ratified and confirmed in
all respects.
8. Miscellaneous.
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a. This Fourth Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
b. Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Fourth
Amendment for any other purpose.
c. This Fourth Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
d. The Borrowers will pay on demand all reasonable out-of-pocket
costs and expenses of the Agents in connection with the preparation, execution
and delivery of this Fourth Amendment, including, without limitation, the
reasonable fees, disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP,
counsel to the Agents.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
NORTON XXXXXXXXXX, INC.
By:________________________________
Title:_____________________________
NORTON XXXXXXXXXX OF XXXXXX, INC.
By:________________________________
Title:_____________________________
MISS XXXXX, INC.
By:________________________________
Title:_____________________________
AGENTS AND LENDERS
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THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Administrative Agent
By:________________________________
Title:_____________________________
NATIONSBANC COMMERCIAL
CORPORATION, as Collateral Agent
By:________________________________
Title:_____________________________
LENDERS
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FLEET BANK, NA
By:________________________________
Title:_____________________________
BANKBOSTON, N.A.
By:________________________________
Title:_____________________________
PNC BANK, NATIONAL ASSOCIATION
By:________________________________
Title:_____________________________
LENDERS
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FLEET BANK, NA
By:________________________________
Title:_____________________________
BANKBOSTON, N.A.
By:________________________________
Title:_____________________________
SCHEDULE I
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CONTINUING LENDERS
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NationsBanc Commercial Corporation
The CIT Group/Commercial Services, Inc.
Fleet Bank, NA
PNC Bank, National Association
DEPARTING LENDERS
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Bank Boston, N.A.
