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EXHIBIT 10.22(b)
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THIRD AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of November 13, 1996 among EKCO GROUP, INC., a
Delaware Corporation ("Group"), EKCO HOUSEWARES, INC., a Delaware corporation
and a wholly owned subsidiary of Group ("Housewares"), and EKCO CONSUMER
PLASTICS, INC. (formerly Frem Corporation), a Massachusetts corporation and a
wholly owned subsidiary of Housewares ("Frem" and collectively with Group and
Housewares, the "Obligors"); FLEET NATIONAL BANK (formerly Fleet Bank of
Massachusetts, N.A.), a national banking association as agent (the "Agent") and
the Lenders set forth below under a Credit Agreement dated as of April 11, 1995,
as amended (the "Credit Agreement").
WHEREAS, the Obligors and the Lenders have agreed to certain modifications
of the Credit Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Section 1.1. Definitions shall be amended as follows:
"BORROWING BASE" shall mean eighty percent (80%) of Eligible Accounts.
In calculating the Borrowing Base, the Borrower shall deduct from Eligible
Accounts the amount of any (i) deposit which an account debtor may have paid
with respect to the goods or services to which such account receivable relates;
(ii) potential setoff; (iii) amount in dispute; and (iv) advertising or other
allowance (except an allowance for prompt payment) that will be deducted from
the receivable in the ordinary course of collection. The Agent, in its
discretion, may from time to time by seven (7) days prior notice to the Borrower
(a) determine that any item included in the Borrowing Base is unacceptable for
inclusion in the Borrowing Base in the future; or (b) establish reserves against
the collection of any accounts receivable where the Agent has a reasonable basis
to doubt the full and timely collectability of such accounts receivable.
"ELIGIBLE ACCOUNTS" shall mean accounts receivable which (a) arise
from the sale of goods which have been shipped; (b) are not outstanding for more
than 120 days after the date of invoice; (c) are not past due for more than 30
days beyond the due date specified in the invoice; (d) are not represented by a
note or other negotiable instrument; (e) are due from an account debtor located
in the United States; (f) the account debtor is CREDIT WORTHY and not subject to
any insolvency proceedings; (g) are not due from a Subsidiary or an Affiliate;
and (h) are subject to a first priority perfected security interest in favor of
the Lenders.
"MAXIMUM REVOLVING CREDIT AMOUNT" shall mean $35,000,000.
2. ARTICLE 2. THE CREDITS. (a) The introduction and Section 2.1 shall
be amended in their entirety to read as follows:
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"Subject to the terms and conditions hereof, and in reliance on the
representations and warranties contained herein, each of the Lenders hereby
establish a secured Revolving Credit Facility in favor of Group in the
respective principal amounts of each Lender's Revolving Credit Commitment. The
aggregate principal amount of the Lenders' Revolving Credit Commitments is
$35,000,000. All references hereinafter made to Borrowers or Borrower shall mean
Group.
SECTION 2.1. THE REVOLVING CREDIT FACILITIES. (a) Subject to the terms
and conditions of this Agreement and so long as there exists no Default, at any
time prior to the Revolving Credit Termination Date or the earlier acceleration
of the Revolving Credit Notes, each Lender shall severally make such Advances to
the Borrower as the Borrower may from time to time request, by notice to the
Agent in accordance with Section 2.2, in an aggregate amount with respect to any
Revolving Credit Facility (i) as to each Lender, not to exceed at any time the
amount of such Lender's Revolving Credit Commitment with respect to such
Revolving Credit Facility, and (ii) as to all of the Lenders, not to exceed an
amount determined by subtracting (A) the aggregate outstanding balance of all
Advances theretofore made by the Lenders with respect to such Revolving Credit
Facility PLUS the aggregate amount available to be drawn under all Letters of
Credit issued by the Agent for the account of the applicable Obligor in
accordance with Section 2.11 hereof, PLUS the amount of any unreimbursed draws
under Letters of Credit FROM (B) the lesser of (x) the Borrowing Base or (y) the
Maximum Revolving Credit Amount from time to time in effect for such Revolving
Credit Facility. Concurrently with the execution of the Agreement, the Borrower
will execute and deliver to the Lenders their Revolving Credit Notes to evidence
the Advances under the respective Revolving Credit Facilities.
(b) Subject to the foregoing limitations and the provisions of Article
4 hereof, the Borrower shall have the right to repay the outstanding balance of
the Advances and to request further Advances, by notice to the Agent in
accordance with Section 2.2; PROVIDED that the Agent and the Lenders shall have
the absolute right to refuse to make any Advances for so long as there would
exist any Default upon the making of such Advance of after giving effect
thereto. All outstanding Advances and all interest accrued and unpaid thereon
and all other amounts outstanding hereunder shall be paid in full on the
Revolving Credit Termination Date.
(c) The Borrower shall furnish a computation of the Borrowing Base on
a form approved by the Agent by the fifteenth (15th) day of each calendar month
which computation shall be prepared as of the close of business on the last
business day of the preceding calendar month and certified as correct by the
Borrower's chief financial officer, treasurer or controller. The Lenders shall
have no obligation to make any Advance if the Borrower fails to furnish such
computation on a timely basis."
(d) SECTION 2.5. FEES. Subsection (a) shall be amended by substituting
"one-half of one percent (.50%)" for "three-eighths of one percent (.375%)."
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Subsection (b) shall be amended by substituting "the Applicable
Margin-LIBOR Rate" for "one and one-quarter percent (1.25%)."
3. The following SECTION 6.14 shall be added following Section 6.13:
"SECTION 6.14. MONTHLY FINANCIAL STATEMENTS. As soon as available, and
in any event within thirty (30) days after the end of each month of the Borrower
(except such period shall be forty-five (45) days after the last month of the
Borrower's fiscal year), the Borrower shall furnish the Agent and the Lenders
with unaudited consolidated and consolidating balance sheets of Group and its
Subsidiaries, as of the end of such month and related consolidated and
consolidating statements of income, and consolidated statements of stockholders'
equity and estimated cash flows of Group and its Subsidiaries for such month and
for the period commencing at the end of the previous fiscal year and ending with
the end of such month."
4. SECTION 7.1. MINIMUM CONSOLIDATED EBITDA is restated in its
entirety to read as follows:
"The Consolidated EBITDA of Group and its Subsidiaries shall not be
less than the amount set forth below as measured at the end of each fiscal
quarter during the periods indicated, on the basis of the fiscal quarter ending
on such date and the three immediately preceding fiscal quarters:
Period Consolidated EBITDA (Group)
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Fiscal Year End 1995 $43,000,000
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 40,000,000
Fourth Quarter Fiscal Year 1996 30,000,000
First Quarter Fiscal Year 1997 through
Third Quarter Fiscal Year 1997 45,000,000
Fiscal Year End 1997 and thereafter 50,000,000"
5. SECTION 7.2. RATIO OF CONSOLIDATED EBITA TO CONSOLIDATED INTEREST
EXPENSE is restated in its entirety to read as follows:
"The ratio of Group's Consolidated EBITA to Consolidated Interest Expense
shall not be less than the ratios set for below as measured at the end of each
fiscal quarter on the basis of the fiscal quarter ending on such date and the
three immediately preceding fiscal quarters.
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Period Ratio
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Fiscal Year End 1995 2:45:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 2:25:1.0
Fiscal Year End 1996 1:60:1:0
First Quarter Fiscal Year 1997 and thereafter 2:75:1.0"
6. SECTION 7.3. CONSOLIDATED FIXED CHARGE COVERAGE RATIO is restated
in its entirety to read as follows:
"The ratio of Group's Consolidated Cash Flow to Consolidated Fixed Charges
shall not be less than the ratios set forth below as measured at the end of
each fiscal quarter during the periods indicated, on the basis of the fiscal
quarter ending on such date and the three immediately preceding fiscal quarters:
Period Ratio
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Fiscal Year End 1995 1:40:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 1:40:1.0
Fiscal Year End 1996 1:30:1:0
First Quarter Fiscal Year 1997 through
Third Quarter Fiscal Year 1997 1:75:1.0
Fiscal Year End 1997 and thereafter 2:00:1.0"
7. SECTION 7.4. RATIO OF CONSOLIDATED SENIOR FUNDED INDEBTEDNESS TO
CONSOLIDATED EBITDA is restated to read as follows:
"The ratio of Group's Consolidated Senior Funded Indebtedness to
Consolidated EBITDA shall not exceed the ratios set forth below as measured at
the end of each fiscal quarter during the periods indicated, on the basis of the
fiscal quarter ending on such date and the three immediately preceding fiscal
quarters:
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Period Ratio
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Fiscal Year End 1995 2.45:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 3.20:1.0
Fiscal Year End 1996 4:50:1:0
First Quarter Fiscal Year 1997 through
Third Quarter Fiscal Year 1997 2.90:1.0
Fiscal Year End 1997 and thereafter 2.50:1.0"
8. SECTION 9.6. MERGERS AND ACQUISITIONS. The proviso to subsection
(a) added by the Second Amendment dated March 26, 1996 is amended in its
entirety as follows:
"and further provided, that no acquisition shall be made without the
prior written approval of Majority Lenders and no acquisition that involves an
expenditure in excess of $5,000,000 shall be made without the prior written
consent of all Lenders."
9. SECTION 12.1. ACTION BY LENDERS. Subparagraph (a) is amended in its
entirety to read as follows:
"(a) no reduction in principal, interest rates, Revolving Credit
Commitment Fee, Letter of Credit Commitment Fee or any other fee relating to the
Revolving Credit Commitments or the Advances shall be made;"
10. The Lenders hereby waive compliance with respect to the following
financial covenants for the Third Quarter Fiscal Year 1996: Section 7.1 Minimum
Consolidated EBITDA, 7.2 Ratio of Consolidated EBITA to Consolidated
Interest Expense, 7.4 Ratio of Consolidated Senior Funded Indebtedness to
Consolidated EBITDA. Such waiver shall not apply with respect to any other
period.
11. The Borrower agrees to provide a written supplement to the Schedules
to the Credit Agreement on or before November 22, 1996, such that the
Schedules as modified by the supplement will be true, accurate and correct as of
the date of this Third Amendment.
12. The Borrower shall pay an amendment fee to the Agent for the pro rata
benefit of the Lenders in connection with the execution of this Third Amendment
of $93,750. The Borrower agrees to pay an additional amendment fee of $43,750
in the event the Borrower and the Lenders reach agreement for a further
amendment which restates the financial covenants and other provisions as deemed
necessary for Fiscal 1997 and 1998.
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13. The Revolving Credit Commitment and Revolving Credit Commitment
Percentage of each Lender is set forth below such Lender's name on the
execution page of this Third Amendment, which replace and supersede the
Revolving Credit Commitment and Revolving Credit Commitment Percentage set forth
on the execution pages to the Second Amendment.
14. Except as specifically set forth herein and in the First Amendment to
Credit Agreement dated December 31, 1995 and the Second Amendment to Credit
Agreement dated March 25, 1996, the Credit Agreement remains in full force and
effect.
WITNESS, the execution hereunder under seal as of the date set forth above:
BORROWER:
EKCO GROUP, INC.
By: /S/XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. XxXxxxxxxx
Title: Executive Vice President, Finance
and Administration and Chief
Financial Officer
GUARANTORS:
EKCO HOUSEWARES, INC.
By: /S/XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. XxXxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
EKCO CONSUMER PLASTICS, INC.
By: /S/XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. XxXxxxxxxx
Title: Vice President, Chief Financial
Officer and Clerk
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AGENT:
FLEET NATIONAL BANK (formerly Fleet Bank of
Massachusetts, N.A.), as Agent
By: /S/XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. XxXxxxxx
Title: Vice President
LENDERS:
FLEET NATIONAL BANK (formerly Fleet Bank of
Massachusetts, N.A.)
By: /S/XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. XxXxxxxx
Title: Vice President
Address: Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx,
Vice President
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 40.00%
Revolving Credit Commitments: $14,000,000
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ABN AMRO BANK N.V., BOSTON BRANCH
By: /S/XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President &
Managing Director
By: /S/XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
Address: ABN AMRO Bank, N.V.,
Boston Branch
Xxx Xxxx Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Vice President
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 20%
Revolving Credit Commitments: $7,000,000
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THE SUMITOMO BANK, LIMITED
By: /S/X.X. XXXXXXX
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Name: X.X. Xxxxxxx
Title: Vice President & Manager
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx XxXxxxxx
Title: Vice President
Address: The Sumitomo Bank, Limited
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx XxXxxxxx, Vice President
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 13.33%
Revolving Credit Commitments: $4,666,666
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PNC BANK, NATIONAL ASSOCIATION
By: /S/XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Assistant Vice President
Address: PNC Bank, National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 13.33%
Revolving Credit Commitments: $4,666,666
MELLON BANK, N.A.
By: /S/XXXX X. XXXX
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Name: Xxxx X. Xxxx
Title: Vice President
Address: Mellon Bank, N.A.
Xxx Xxxxxx Xxxxx - 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxx
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 13.33%
Revolving Credit Commitments: $4,666,666
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