EXHIBIT 10.3
FIRST AMENDMENT
TO
FINANCING AGREEMENT
First Amendment, dated as of November 21, 1997 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 "Additional Lenders" (the
"Additional 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 (i)
amend the definition of the term "Required Lenders" in the Financing Agreement,
(ii) add the Additional Lenders as parties to the Financing Agreement, and (iii)
amend certain other terms and conditions hereafter set forth.
In addition, the Continuing Lenders wish to assign a portion of their
interests in the total Revolving Credit Commitment and the Loans and Letter of
Credit Obligations outstanding under the Financing Agreement to the Additional
Lenders and the Additional Lenders wish to accept such assignments.
Accordingly, the Company, the Borrowers, the Agent 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.
2. Existing Definitions. (a) The definition of the term "Loan
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Documents" in Section 1.01 of the Financing Agreement is hereby amended by
adding the words ",including, without limitation, any intercompany notes pledged
to the Collateral Agent" to end thereof.
(b) The definition of the term "Required Lenders" in Section 1.01
of the Financing Agreement is hereby amended in its entirety to read as follows:
"Required Lenders" means, at any time, Lenders whose
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Pro Rata Shares aggregate at least 60%, provided that,
until such time as the aggregate Pro Rata Shares of CIT
and NationsBanc are less than 60%, CIT and NationsBanc
shall not constitute Required Lenders without being
joined by one additional Lender."
3. Amendments. Clause (iii) of Section 12.03 of the Financing
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Agreement is hereby amended by deleting the words "or the Guarantors (other than
inactive Guarantors)" therein and substituting in lieu thereof "or any of the
Guarantors (other than inactive Guarantors)".
4. Assignments. (a) On and as of the Amendment Effective Date,
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each of the Continuing Lenders shall assign and each of the Additional Lenders
shall purchase, at the principal amount thereof, such interests in the Term
Loan, 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 Term Loan, Revolving Credit Loans and Letter of
Credit Obligations outstanding will be held by the Lenders ratably in accordance
with their Pro Rata Shares in the Term Loan outstanding as of the Amendment
Effective Date (the "Outstanding Term Loan") and the Total Revolving Credit
Commitment, as set forth in Annex I to this Amendment. Such assignments and
purchases shall be without recourse, representation or warranty, except that (i)
each Continuing 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 Financing
Agreement are hereby incorporated by reference as if set forth herein and each
Continuing Lender shall be deemed to have made the representations, warranties
and statements of Assignor in such paragraphs and each Additional Lender shall
be deemed to have made the representations, warranties and statements of
Assignee in such paragraphs.
(b) On the Amendment Effective Date, (i) the Additional Lenders
shall pay the purchase price for the Term Loan and Revolving Credit Loans
purchased by it pursuant to paragraph (a) of this Section 4 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 Continuing 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 Lender.
(c) The Company and the Borrowers hereby consent to the
assignments and purchases provided for in paragraphs (a) and (b) of this Section
4 and agree that each Additional 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
Additional Lender will be a party to the Financing Agreement, agrees to be bound
by the terms and conditions of the Financing Agreement and the Loan Documents
and will have all of the rights and obligations of a Lender under the Financing
Agreement and the Loan Documents.
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5. Delivery of Notes. The Continuing 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 Continuing Lenders under the
Financing Agreement (collectively, the "Old Notes"), which Old Notes are hereby
deemed cancelled effective from delivery of the New Notes to the Administrative
Agent. The Borrowers shall execute and deliver to the Administrative Agent for
the account of each Lender the Notes which such Lender is entitled to receive
pursuant to Section 2.04 of the Financing Agreement, in the forms of Exhibits A
and B thereto and in the principal amount for each Lender equal to its Pro Rata
Share of the Outstanding Term Loan and the Total Revolving Credit Commitment,
each as set forth in Annex I to this Amendment (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 Lenders.
6. Accrued Interest and Fees. At the times and pursuant to the
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terms contained in the Financing Agreement, the Administrative Agent will pay
all accrued interest and fees payable pursuant to Section 3.03(b) of the
Financing Agreement to the Lenders entitled thereto after giving effect to the
assignments and purchases made pursuant to Section 4 above.
7. Schedule. Schedule 1.01A to the Financing Agreement is hereby
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amended in its entirety to read as set forth in Annex I to this Amendment.
8. Conditions to Effectiveness. This 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 representations and warranties contained in this
Amendment and in Article VI of the Financing Agreement shall be correct in
all material respects on and as of the Amendment Effective Date as though
made on and as of such date (except where such representations and
warranties relate to an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date); no Event of
Default or Default shall have occurred and be continuing on the Amendment
Effective Date, or result from this Amendment becoming effective in
accordance with its terms.
(ii) The Agents shall have received counterparts of this
Amendment which bear the signatures of the Company, the Borrowers and each
of the Lenders.
(iii) The Administrative Agent shall have received the New
Notes, duly executed by each of the Borrowers.
(iv) The Agents shall have received an acknowledgment to
the agreement among the Lenders duly executed by each Additional Lender.
(v) All legal matters incident to this Amendment shall be
satisfactory to the Agents and their counsel.
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9. Representations and Warranties. Each of the Company and the
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Borrowers represents and warrants to the Lenders as follows:
(a) The Company and each Borrower (i) is duly organized, validly
existing and in good standing under the laws of the state of its organization
and (ii) has all requisite power, authority and legal right to execute, deliver
and perform this Amendment, the New Notes, in the case of the Borrowers, all
other documents executed by it in connection with this Amendment, and to perform
the Financing Agreement, as amended hereby.
(b) The execution, delivery and performance by the Company and
the Borrowers of this Amendment and all other documents executed by it in
connection with this Amendment, the execution, delivery and performance by each
Borrower of the New Notes and the performance by the Company and the Borrowers
of the Financing Agreement as amended hereby (i) have been duly authorized by
all necessary action, (ii) do not and will 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 and will not result in or require the
creation of any Lien, upon or with respect to the Company's or any Borrower's
property.
(c) No authorization or approval or other action by, and no
notice to or 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 Amendment, the execution, delivery and
performance by each Borrower of the New Notes and the performance by the Company
and the Borrowers of the Financing Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended
hereby, and all other documents executed in connection with this 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.
(e) The representations and warranties contained in Article VI of
the Financing Agreement are correct on and as of the Amendment Effective Date as
though made on and as of the Amendment Effective Date (except to the extent such
representations and warranties expressly relate to an earlier date), and no
Event of Default or Default, has occurred and is continuing on and as of the
Amendment Effective Date.
10. 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 of this Amendment all
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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 Financing Agreement as amended by this Amendment, and
(ii) confirms and agrees that to the extent that any such Loan Document purports
to 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 Financing Agreement and
the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby
ratified and confirmed in all respects.
11. Miscellaneous.
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a. This 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 Amendment
for any other purpose.
c. This 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 Amendment, including, without limitation, the reasonable
fees, disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to
the Agents.
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IN WITNESS WHEREOF, the parties hereto have caused this 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:_____________________________
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LENDERS
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BANKBOSTON, N.A.
By:________________________________
Title:_____________________________
Address:
000 Xxxxxxx Xxxxxx
Asset Based Lending
Mail Stop: 01-09-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxx
Vice President
Telephone:(000) 000-0000
Telecopier:(000) 000-0000
Wiring Instructions:
The First National Bank of Boston
ABA #: 000-000-000
REF: Norton XxXxxxxxxx
ATTN: Xxxxx Xxxxx
Commercial Loan Services
Telephone:(000) 000-0000
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FLEET BANK, N.A.
By:___________________________________________
Title:________________________________________
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxxx Xxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wiring Instructions:
Loan Transactions:
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Fleet Bank, NA
ABA # 000000000
Credit to G/L # 1510351-03102
Attn: Xxx Xxxx-Xxxxxxxx
Obligor #479501
Letters of Credit Transactions:
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Fleet Bank, NA
ABA #000000000
Credit to G/L #2014340-03102
Attn: Xxx Xxxx-Xxxxxxxx
Obligor #479501
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SCHEDULE I
CONTINUING LENDERS:
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The CIT Group/Commercial Services, Inc.
NationsBanc Commercial Corporation
ADDITIONAL LENDERS:
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BankBoston, N.A.
Fleet Bank, N.A.
ANNEX I
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Schedule 1.01A
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Lenders and Lenders' Commitments
Revolving
Credit Term Loan
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Lender Commitment Commitment Percentage
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NationsBanc Commercial Corporation $ 53,572,500 $ 6,428,700 42.858%
The CIT Group/Commercial Services, Inc. $ 44,642,500 $ 5,357,100 35.714%
BankBoston, N.A. $ 13,392,500 $ 1,607,100 10.714%
Fleet Bank, N.A. $ 13,392,500 $ 1,607,100 10.714%
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$125,000,000 $15,000,000 100%
