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EXHIBIT 10(dd)
WAIVER TO CREDIT AGREEMENT
THIS WAIVER (this "WAIVER"), to the Credit Agreement dated as of
July 30, 1997, among SAFETY 1ST, INC., a Massachusetts corporation ("SAFETY"),
SAFETY 1ST HOME PRODUCTS CANADA INC., a Canadian federal corporation ("SAFETY
CANADA" and, together with Safety, the 'BORROWERS"), each of the financial
institutions from time to time parties thereto as lenders (the "LENDERS" ), BT
COMMERCIAL CORPORATION, as agent (in such capacity, the "AGENT") for the Lenders
and BANKERS TRUST COMPANY, as issuer of letters of credit (in such capacity, the
"ISSUING BANK"), is made as of February 18, 1998 among the Borrowers and the
undersigned Lenders.
W I T N E S S E T H :
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WHEREAS, the Borrowers, the Lenders, the Agent and the Issuing Bank
are parties to the Credit Agreement, dated as of July 30, 1997 (as heretofore
amended on October 29, 1997 and January 23, 1998 and as the same may be further
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless otherwise defined herein);
WHEREAS, the Borrowers have requested that the Lenders agree to waive
a certain provision of the Credit Agreement, and the undersigned Lenders are
agreeable to such waiver, but only on the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. WAIVER. Effective as of the date hereof, but subject to the
satisfaction of the conditions of effectiveness set forth in Section 2 hereof,
the Lenders hereby waive compliance with Section 7.2.(v) of the Credit Agreement
with respect to the period ended December 31, 1997, PROVIDED that this waiver
will not be effective if the Consolidated Fixed Charge Coverage Ratio for the
period ended December 31, 1997 is less than 1:1.
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SECTION 2. EFFECTIVENESS. This Waiver shall become effective upon the
Agent's receipt of this Waiver, duly executed by the Borrowers and the Majority
Lenders.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. Each of
the Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of this
Waiver (i) are within such Borrower's corporate powers and authority, have been
duly authorized by all necessary corporate action and do not contravene (A)
such Borrower's Governing Documents (including, without limitation, the
certificate of designation for any preferred stock of a Borrower), (B) any
Requirement of Law applicable to it or any of its properties or (C) any
franchise, license, permit, indenture, contract, lease, agreement, instrument or
other commitment to which it is a party or by which it or any of its properties
are bound, (ii) will not result in a Default or an Event of Default and (iii)
will not result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by any Borrower
(other than Liens permitted by the Credit Agreement).
(b) This Waiver constitutes the legal, valid and binding obligations
of such Borrower enforceable against such Borrower in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting creditor's rights generally and general principles of
equity.
SECTION 4. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS.
(a) Upon the effectiveness of this Waiver, on and after the date
hereof, each reference in the Credit Agreement to (i) "this Agreement,"
"hereunder," "hereof," "herein" and words of like import, and such words or
words of like import in each reference in the Credit Documents, shall mean and
be a reference to the Credit Agreement as waived hereby.
(b) Except as specifically waived hereby, all of the terms and
provisions of the Credit Agreement shall remain in full force and effect and are
hereby ratified and confirmed.
(e) The execution, delivery and effectiveness of this Waiver shall
not, except as expressly provided herein, operate as an amendment to or a waiver
of any right, power or remedy of the Agent or the Lenders under any of the
Credit Documents, or constitute an amendment to or a waiver of any provision of
any of the Credit Documents.
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(d) This Waiver shall be deemed to be a Credit Document for all
purposes.
SECTION 5. EXECUTION IN COUNTERPARTS; ETC. This Waiver may be executed
in counterparts each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute one and the same
instrument. This Waiver may be executed and delivered by telecopier with the
same force and effect as if the same was a fully executed and delivered original
manual counterpart.
SECTION 6. COSTS, EXPENSES AND TAXES. The Borrowers shall jointly and
severally pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Waiver and the
documents contemplated hereby or delivered in connection herewith, and agrees to
hold the Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes. The
Borrowers shall jointly and severally pay for all of the reasonable costs and
expenses incurred by the Agent in connection with the preparation, negotiation
and execution of this Waiver, including, without limitation, the reasonable fees
and expenses of counsel to the Agent.
SECTION 7. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS Waiver SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BORROWERS
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SAFETY 1ST, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President & COO
SAFETY 1ST, HOME PRODUCTS CANADA INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
LENDERS
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BT COMMERCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: V.P.
LASALLE NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
BNY FINANCIAL CORPORATION
By:
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Name:
Title:
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SUMMIT COMMERCIAL/GIBRALTAR CORP.
By: /s/ Xxxxxx Xxxxxxxx
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Name:
Title: EXEC. VICE PRES.
FINOVA CAPITAL CORPORATION
By:
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Name:
Title:
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