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EXHIBIT 10.1
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THIRD AMENDMENT TO FORBEARANCE AGREEMENT
AMONG FLEET NATIONAL BANK,
THE FIRST NATIONAL BANK OF BOSTON,
USTRUST AND SAFETY 1ST, INC., ET AL.
This Third Amendment to Forbearance Agreement (the "Third Amended
Forbearance Agreement") is made with respect to that certain Loan Agreement
dated March 28, 1996 as heretofore amended (the "Loan Agreement"), by and among
Safety 1st, Inc. ("Safety 1st"), a Massachusetts corporation with offices at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxxxxx; Safety 1st (Europe) Limited
("Safety Europe"), a limited liability company organized under the laws of the
United Kingdom, 3232301 Canada, Inc. ("3232301"), a corporation organized under
the federal laws of Canada; Safety 1st Home Products Canada, Inc. ("Safety
Canada"), a corporation organized under the federal laws of Canada; Safety 1st
International, Inc. ("Safety International"), a corporation organized under the
laws of the U.S. Virgin Islands; and Fleet National Bank ("Fleet" or the
"Agent"), a banking corporation organized under the laws of the United States;
the First National Bank of Boston ("Bank of Boston"), a banking corporation
organized under the laws of the United States; and USTrust ("UST"), a
Massachusetts trust company (collectively "the Banks"). Safety lst, Safety
Europe, 3232301, Safety Canada and Safety International are sometimes
collectively hereinafter referred to as "the Borrowers". The term "Loan
Documents" as used herein shall include those documents, instruments and
agreements executed and delivered in connection with this Third Amended
Forbearance Agreement, the Second Amended Forbearance
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Agreement, the Amended Forbearance Agreement and the Forbearance Agreement (as
defined hereinafter), as well as the documents, instruments and agreements
included within the defined term "Loan Documents" in the Loan Agreement.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Loan Agreement.
This Third Amended Forbearance Agreement extends that certain Forbearance
Agreement among the Banks, the Borrowers and Xxxxxxx Xxxxxx ("Xxxxxx") dated
August 2, 1996 (the "Forbearance Agreement"), that certain Amended Forbearance
Agreement among the Banks, the Borrowers and Xxxxxx dated August 13, 1996 (the
"Amended Forbearance Agreement") and that Second Amendment to Forbearance
Agreement among the Banks, the Borrowers and Xxxxxx dated September 6, 1996 (the
"Second Amended Forbearance Agreement"), which continue to be in effect except
to the extent expressly superseded by this Third Amended Forbearance Agreement
and except to the extent that provisions of this Third Amended Forbearance
Agreement contradict the Amended Forbearance Agreement, as previously amended,
in which case the provisions of this Third Amended Forbearance Agreement shall
control.
The Borrowers and Xxxxxx have requested that the Banks continue to forbear
through September 27, 1996 from enforcement of their rights and remedies against
the Borrowers.
The Banks are willing to continue to forbear from the exercise of such
rights and remedies but only upon the terms and conditions and based upon the
representations and warranties of the Borrowers and Xxxxxx herein.
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1. The Borrowers hereby acknowledge that they are unconditionally liable to
the Banks for the full and immediate payment of each of the obligations
described in EXHIBIT I attached hereto and incorporated herein by reference
as of the date thereof, plus all charges that may arise under the Loan
Documents, including attorneys fees and costs of collection incurred in
connection with such obligations by the Banks.
2. The Borrowers and Xxxxxx (as "Limited Guarantor") further acknowledge that
the Banks have no existing commitments, obligations or agreements to
advance credit or loans or make any other financial accommodations to the
Borrowers except as specifically set forth in the Forbearance Agreement,
the Amended Forbearance Agreement, and the Second Amended Forbearance
Agreement.
3. Upon the terms and conditions set forth herein, the Banks agree that they
will forbear from exercising the rights and remedies contained in the Loan
Documents, at law and in equity until the earlier of: (i) occurrence of an
Event of Default arising after the date of this Amendment other than the
continuing Events of Default as the result of a breach of the covenants
described in Exhibit 3, or (ii) September 27, 1996 (the "Forbearance
Termination Date"). Notwithstanding the acknowledgment of existing defaults
contained in the Forbearance Agreement, the Banks do not hereby agree to
waive any of the existing financial or other covenant Events of Defaults
under the Loan Agreement. The
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Borrowers shall comply with all of their other obligations to the Banks as
set forth in the Loan Documents. The Borrowers and Xxxxxx acknowledge that
the Banks are under no obligation to continue to forbear, and have not
agreed to or made any representations that they would agree to forbear,
after the Forbearance Termination Date.
4. Xxxxxx has previously executed and delivered to the Banks a Limited
Guaranty and First Amendment to Limited Guaranty (the "Xxxxxx Guaranty")
pursuant to which Xxxxxx guaranteed and continues to guaranty to the Banks
the full and timely payment of all Obligations of the Borrowers to the
Banks up to the dollar limitation referenced in the Xxxxxx Guaranty. Xxxxxx
hereby reaffirms i) the provisions of the Xxxxxx Guaranty and ii) the
provisions and terms of the Third Party Pledge Agreement securing the
Xxxxxx Guaranty, and the First Amendment to Third Party Pledge Agreement.
5. The Borrowers and Xxxxxx (and their successors and assigns) hereby release,
waive and forever relinquish all claims, demands, obligations, liabilities
and causes of action of whatever kind or nature, whether known or unknown,
which any of them may have or might assert now or in the future, against
the Banks, their officers, directors, employees, agents, attorneys and
accountants, directly or indirectly, arising out of, based upon, or in any
manner connected with, (i) any transaction, event, action, failure to act
or occurrence of any sort or type, whether known or unknown, which existed,
occurred or was taken, permitted or begun
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prior to the execution of this Amendment; (ii) any discussions,
commitments, negotiations, conversations or communications with respect to
the Borrowers' and Xxxxxx'x respective Obligations prior to the execution
of this Amendment; or (iii) anything or matter prior to the execution of
this Amendment related to any of the foregoing.
6. As of the date hereof, the Borrowers and Xxxxxx represent and warrant that
they have no offsets, claims, or other defenses to payment of full of their
obligations to the Banks, and reaffirm that all of the representations and
warranties made by them in the Loan Agreement, Forbearance Agreement, the
Amended Forbearance Agreement, the Second Amended Forbearance Agreement and
this Third Amended Forbearance Agreement and the other loan documents,
instruments and agreements remain true and correct, except for the defaults
in financial and other covenants set forth in Exhibit 3 hereto.
7. The Borrowers and Xxxxxx shall take such further actions, and execute and
deliver to the Banks such further documents and agreements as the Banks may
require to evidence the agreements contained in the Loan Agreement, the
Forbearance Agreement, the Amended Forbearance Agreement, the Second
Amended Forbearance Agreement and herein, and the Banks shall take such
actions and execute and deliver such documents and agreements as may be
required to evidence their agreements contained herein.
8. This Amendment and the documents, instruments and agreements
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delivered in connection herewith, together with the Forbearance Agreement,
the Amended Forbearance Agreement, the Second Amended Forbearance Agreement
and documents, instruments and agreements delivered in connection
therewith, represent the entire agreement among the parties with respect to
the subject matter hereof, and shall be construed in accordance with the
laws of the Commonwealth of Massachusetts as an agreement under seal.
WITNESS OUR HANDS AND SEALS THIS _____ DAY OF SEPTEMBER, 1996.
BORROWER
SAFETY 1ST, INC.
By:
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Xxxxxxx Xxxxxx, President
SAFETY 1st (EUROPE) LIMITED
By:
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Xxxxxxx Xxxxxx, Director
By:
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Xxxxxxx Xxxxxxxxx, Director
SAFETY 1ST HOME PRODUCTS
CANADA, INC.
By:
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Xxxxxxx Xxxxxx, President
3232301 CANADA, INC.
By:
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Xxxxxxx Xxxxxx, President
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SAFETY 1ST INTERNATIONAL, INC.
By:
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Xxxxxxx Xxxxxx, President
BANKS:
FLEET NATIONAL BANK
By:
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XXXXXXX XXXXXXXX
THE FIRST NATIONAL BANK OF BOSTON
By:
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USTRUST
By:
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XXXXXX X. XXXXX, Senior Vice
President
GUARANTOR:
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XXXXXXX XXXXXX
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxxxx Xxxxxx, individually and
as President of Safety 1st, Inc., and acknowledged the foregoing instrument to
be his free act and deed and the free act and deed of Safety 1st, Inc., before
me,
-----------------------------------
, Notary Public
My Commission Expires:
9
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxxxx Xxxxxx, the Director of
Safety lst (Europe) Limited, and acknowledged the foregoing instrument to be his
free act and deed on behalf of Safety 1st (Europe) Limited, before me,
-----------------------------------
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxxxx Xxxxxx, the President of
Safety 1st Home Products Canada, Inc., and acknowledged the foregoing instrument
to be his free act and deed on behalf of Safety lst Home Products Canada, Inc.,
before me,
-----------------------------------
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxxxx Xxxxxx, the President of
3232301 Canada, Inc., and acknowledged the foregoing instrument to be his free
act and deed on behalf of 3232301 Canada, Inc., before me,
-----------------------------------
, Notary Public
My Commission Expires:
00
XXXXXXXXXXXX XX XXXXXXXXXXXXX
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxxxx Xxxxxx, the President of
Safety 1st International, Inc., and acknowledged the foregoing instrument to be
his free act and deed on behalf of Safety 1st International, Inc., before me,
-----------------------------------
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named Xxxxxxx Xxxxxxxx, the Vice
President Fleet National Bank, and acknowledged the foregoing instrument to be
her free act and deed on behalf of Fleet National Bank, before me,
-----------------------------------
, Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
__________________, ss September __, 1996
Then personally appeared the above-named Xxxxx Xxxxx, the Vice President of
The First National Bank of Boston, and acknowledged the foregoing instrument to
be his free act and deed on behalf of The First National Bank of Boston, before
me,
-----------------------------------
, Notary Public
My Commission Expires:
00
XXXXXXXXXXXX XX XXXXXXXXXXXXX
__________________, ss September __, 1996
Then personally appeared the above-named, Xxxxx Xxxxxx, the Vice President
of USTrust, and acknowledged the foregoing instrument to be free act and deed on
behalf of USTrust, before me,
-----------------------------------
, Notary Public
My Commission Expires:
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EXHIBIT 1
Total Obligations as of September 20, 1996
$41,328,163.82
