AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2, dated as of May 19, 1999, to the
Credit Agreement, dated as of December 31, 1996 (the "CREDIT
AGREEMENT"), among (i) XXXXXXXX BRANDS INTERNATIONAL, INC.,
a New Jersey corporation ("BORROWER"), (ii) the financial
institutions which are now, or in accordance with SECTION
12.2 of the Credit Agreement hereafter become, parties to
the Credit Agreement (collectively, "LENDERS"), (iii)
BANKBOSTON, N.A. as Administrative Agent for the Lenders,
and (iv) BANKBOSTON, N.A., ING BANK N.V., and PNC BANK,
N.A., as Co-agents for the Lenders.
RECITALS
The Borrower, the Lenders and the Agents party to
this Amendment No. 2 ("THIS AGREEMENT") have agreed to amend
certain of the provisions contained in the Credit Agreement
as set forth herein.
Accordingly, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Unless otherwise defined
herein, terms defined in the Credit Agreement are used
herein as therein defined.
ARTICLE II
AMENDMENTS
Effective on and as of May 19, 1999 ("EFFECTIVE DATE"),
the Credit Agreement is hereby amended in the following
respect:
SECTION 2.1. AMENDMENT TO DEFINED TERM. The defined
term "CONSOLIDATED EBITDA" appearing in SECTION 1.1 of the
Credit Agreement (as previously amended by Amendment No. 1,
dated as of December 8, 1997,
to the Credit Agreement) is hereby further amended by
inserting the following new paragraph immediately after the
first two paragraphs of the defined term "CONSOLIDATED
EBITDA":
"For purposes of determining the Consolidated
EBITDA of the Borrower and its Subsidiaries for
the Reference Period ending June 30, 1999 and also
for the Reference Period ending September 30,
1999, there shall be added to the Consolidated
Operating Income of the Borrower and its
Subsidiaries for such Reference Period
$58,000,000, representing non-cash charges
resulting from Hurricane Xxxxx during the fourth
fiscal quarter of 1998."
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Borrower represents and warrants to and covenants
with each Agent and Lender as follows:
SECTION 3.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each
of the representations and warranties made by or on behalf
of the Borrower to the Agents and the Lenders in the Loan
Documents was true and correct in all material respects when
made and is true and correct in all material respects on and
as of the date hereof, except, in each case, (a) as affected
by the consummation of the transactions contemplated by the
Loan Documents (including this Agreement), and (b) to the
extent that any such representation or warranty relates by
its express terms solely to a prior date.
SECTION 3.2. CORPORATE AUTHORITY, ETC. The execution
and delivery by the Borrower of this Agreement and the
performance by the Borrower of its agreements and
obligations under this Agreement have been duly and properly
authorized by all necessary corporate or other action on the
part of the Borrower, and do not and will not conflict with,
result in any violation of, or constitute any default under
(a) any provision of any Governing Document of the Borrower,
(b) any Contractual Obligation of the Borrower, or (c) any
Applicable Law.
SECTION 3.3. VALIDITY, ETC. This Agreement has been
duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its
terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other
similar laws at the time in effect affecting the
enforceability of the rights of creditors generally and to
general equitable principles. The Borrower hereby ratifies
and confirms all of the Obligations in all respects.
SECTION 3.4. NO DEFAULTS. Before and after giving
effect to this Agreement, no Defaults or Events of Default
are or will be continuing under the Credit Agreement.
SECTION 3.5. AMENDMENT FEE. In consideration of the
execution and delivery of this Agreement by the
Administrative Agent and the Required Lenders, the Borrower
hereby promises to pay to the Administrative Agent on the
Effective Date, for the account of each of the Lenders, an
amendment fee ("AMENDMENT FEE") equal to 1/8th of 1%
(.00125) of the Commitment of each such Lender in effect on
the Effective Date.
ARTICLE IV
PROVISIONS OF GENERAL APPLICATION
This Agreement shall become effective on and as of the
Effective Date once the Administrative Agent has received
(a) duly executed counterparts hereof signed by the Borrower
and the Required Lenders, and (b) payment of the Amendment
Fee for the account of each Lender. Except as otherwise
expressly provided by this Agreement, all of the terms,
conditions and provisions of the Credit Agreement and each
of the other Loan Documents shall remain unaltered. This
Agreement is a Loan Document for all purposes of the Credit
Agreement. This Agreement and the rights and obligations
hereunder of each of the parties hereto shall in all
respects be construed in accordance with and governed by the
internal laws of the State of New York. This Agreement may
be executed in any number of counterparts and by different
parties hereto in separate counterparts, but all of such
counterparts shall together constitute but one and the same
agreement. In making proof of this Agreement, it shall not
be necessary to produce or account for more than one
counterpart hereof signed by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this AMENDMENT NO. 2 to be executed by their respective
authorized officers as of the date first above written.
THE BORROWER:
XXXXXXXX BRANDS INTERNATIONAL, INC.
By: /s/Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and
Treasurer
THE AGENTS AND LENDERS:
BANKBOSTON, N.A., AS ADMINISTRATIVE
AGENT, AS ONE OF THE CO-AGENTS,
AND AS ONE OF THE LENDERS
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
ING BANK N.V., AS ONE OF THE CO-
AGENTS AND AS ONE OF THE LENDERS
By: /s/H.W.L. Xxxxxxxxx
-------------------------------
Name: H.W.L. Xxxxxxxxx
Title: Senior Relationship Manager
/s/J.J. Henff
-------------------------------
Name: J.J. Henff
Title: Senior Relationship Manager
PNC BANK, N.A., AS ONE OF THE CO-
AGENTS AND AS ONE OF THE LENDERS
By: /s/X.X. Xxxxx
-------------------------------
Name : Xxxxx X. Xxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH, AS ONE OF THE
LENDERS
By: /s/Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA ILLINOIS, AS ONE OF
THE LENDERS
By: /s/Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH, AS ONE OF THE
LENDERS
By /s/Xxxxxx Xxxxxx /s/Xxxx Chr.
Kjelsrud
-----------------------------------
Name: Xxxxxx Xxxxxx Hans Chr.
Kjelrud
Title: Sr. Vice Pres. Sr. Vice
Pres.
THE MITSUBISHI TRUST AND BANKING
CORPORATION, AS ONE OF THE
LENDERS
By: /s/Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Manager
FIRSTSTAR BANK, N.A., AS ONE OF THE
LENDERS
By: /s/Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SUNTRUST BANK, N.A., AS ONE OF THE
LENDERS
By /s/Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
