WAIVER AND AMENDMENT
WAIVER AND AMENDMENT, dated as of June 27, 1997, among Xxxx Perfumes Corp.
("BORROWER"), the other Credit Parties to the Credit Agreement referred to
below, General Electric Capital Corporation, for itself, as Lender, and as Agent
for Lenders, and the other Lenders party to the Credit Agreement.
W I T N E S S E T H
WHEREAS, Borrower, Credit Parties, Agent and Lenders are parties to that
certain Credit Agreement dated as of March 12, 1997 (as from time to time
amended, restated, supplemented or otherwise modified, the "CREDIT AGREEMENT",
and unless the context otherwise requires or unless otherwise defined herein,
capitalized terms used herein shall have the meanings assigned to them in the
Credit Agreement); and
WHEREAS, an Event of Default under Section 8.1(c) of the Credit Agreement,
arising as a result of Borrower's failure to deliver to Agent and Lenders the
quarterly financial information required to be delivered in respect of the
Fiscal Quarter ending March 31, 1997 pursuant to paragraph (b) of ANNEX E to
the Credit Agreement, has occurred and is continuing on the date hereof (the
"Existing Events of Default"); and
WHEREAS, Borrower has requested that Agent and Lenders waive the Existing
Event of Default and amend the Credit Agreement as hereinafter set forth; and
WHEREAS, Agent and Lenders have agreed to waive the Existing Event of
Default and amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. WAIVER. Agent and Lenders hereby waive the Existing Event of
Default effective as of the Effective Date (as defined herein).
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. The
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Credit Agreement is hereby amended effective as of March 31, 1997, as follows:
(a) MINIMUM EBITDA. Paragraph (b) of ANNEX G to the Credit Agreement
is amended (i) by deleting "$20,000,000" as the amount of minimum EBITDA for the
12-month period ended March 31, 1997, and substituting therefor the amount of
"$18,000,000" and (ii) by deleting "20,000,000" as the amount of minimum EBITDA
for the 12-month period ended June 30, 1997, and substituting therefor the
amount of "18,000,000".
(b) MINIMUM INTEREST COVERAGE RATIO. Paragraph (d) of ANNEX G to the
Credit Agreement is amended (i) by deleting "1.10" as the minimum Interest
Coverage Ratio for the Fiscal Quarter ending March 31, 1997, and substituting
therefor the ratio of "0.94" and (ii) by deleting "1.10" as the minimum Interest
Coverage Ratio for the Fiscal Quarter ending June 30, 1997, and substituting
therefor the ratio of "0.85".
SECTION 3. REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. The Credit
Parties represent and warrant to Agent and each Lender as follows:
(a) The execution, delivery and performance by each Credit Party of
this Waiver and Amendment: (1) are within such Person's corporate power; (2)
have been duly authorized by all necessary or proper corporate and shareholder
action; (3) do not contravene any provision of such Person's charter or bylaws;
(4) do not violate any law or regulation, or any order or decree of any
Governmental Authority; (5) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage, deed of
trust, lease, agreement or other instrument to which such Person is a party or
by which such Person or any of its property is bound; (6) do not result in the
creation or imposition of any Lien upon any of the property of such Person other
than those in favor of Agent, on behalf of itself and Lenders, pursuant to the
Loan Documents; and (7) do not require the consent or approval of any
Governmental Authority or any other Person.
(b) This Waiver and Amendment has been duly executed and delivered by
each Credit Party and constitutes a legal, valid and binding obligation of such
Credit Party
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enforceable against it in accordance with its terms.
(c) After giving effect to that certain letter agreement dated the date
hereof among Borrower, Agent and Lenders and to the waivers and amendments
contained in this Waiver and Amendment, each of the representations and
warranties of the Credit Parties contained in Credit Agreement and each of
the other Loan Documents shall be true and correct on and as of the Effective
Date as if made on warranty expressly relates to an earlier date and except
for changes therein expressly permitted or expressly contemplated by such
agreements.
(d) After giving effect to that certain letter agreement dated the date
hereof among Borrower, Agent and Lenders and to the waivers and amendments
contained in this Waiver and Amendment, no Default or Event of Default shall
be continuing.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS WAIVER AND
AMENDMENT. This Waiver and Amendment shall become effective as of the first
date on which each of the following conditions shall have been satisfied or
provided for in a manner satisfactory to Agent, or waived by Agent and
Requisite Lenders (such date is referred to herein as the "Effective Date"):
(a) Agent shall have executed this Waiver and Amendment.
(b) Agent shall have received, in form and substance satisfactory to
Agent, this Waiver and Amendment, duly executed and delivered by Borrower,
the other Credit Parties and Requisite Lenders.
SECTION 5. LIMITATION ON WAIVERS AND AMENDMENTS. The waivers,
amendments, and agreements set forth herein are limited precisely as written
and shall not be deemed (a) to be a consent under, waiver or amendment of or
with respect to any other term or condition in, or any other Default or Event
of Default under, the Credit Agreement or any other Loan Document or a
consent under, waiver or amendment of or with respect to any further action
of Borrower of the other Credit Parties which would require a consent, waiver
or amendment by any Lenders, and (b) to prejudice any right or rights which
any Lenders now have or may have in the future
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under or in connection with the Credit Agreement or any other Loan Document,
except as expressly provided herein.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On and
after the Effective Date, each reference in the Credit Agreement to "this
Agreement", "herein", "hereof", "hereunder" or words of similar import, and
each reference in the other Loan Documents to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended hereby and after
giving effect to the waivers provided herein.
(b) Except as specifically amended above, the Credit Agreement, the
Notes and all other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Waiver and
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of Lenders under any other Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 7. FEES AND EXPENSES. Borrower agrees to reimburse Agent for
all reasonable out-of-pocket fees, costs and expenses, including the
reasonable fees, costs and expenses of counsel or other advisors in
connection with the preparation, execution, and delivery of this Waiver and
Amendment.
SECTION 8. GOVERNING LAW. THIS WAIVER AND AMENDMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
SECTION 9. SECTION TITLES. Section titles contained in this Waiver and
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 10. COUNTERPARTS. This Waiver and Amendment may be executed in
any number of separate counterparts, each of which shall collectively and
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separately constitute one agreement.
SECTION 11. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Waiver and Amendment. In the
event an ambiguity or question of intent or interpretation arises, this Waiver
and Amendment shall be construed as if drafted jointly by the parties hereto and
no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Waiver and Amendment.
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IN WITNESS WHEREOF, this Waiver and Amendment has been duly executed as of
the date first written above.
XXXX PERFUMES CORP.
By: /s/ XXXX X. XXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Secretary
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent and Lender
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Duly Authorized Signatory
NATIONAL CITY COMMERCIAL
FINANCE, INC.
as Lender
By: /s/ XXXXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
PNC BANK, N.A.,
as Lender
By: /s/ XXXXX XXXXXXXX
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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Other Credit Parties:
RENAISSANCE COSMETICS, INC.
COSMAR CORPORATION
GREAT AMERICAN COSMETICS, INC.
HOUBIGANT (1995) LIMITED
MEM COMPANY, INC.*
TINKERBELL, INC.
(f/k/a Xxxxxx Xxxxxx, Inc.)
MEM COMPANY (CANADA) LIMITED
By: /s/ XXXX X. XXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Secretary
* Aristocrat Leather Products, Inc. and English Leather, Inc. both former
Credit Parties, were merged into MEM Company, Inc., after March 12, 1997
and prior to the Effective Date.
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