Exhibit 10.79
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of May 13, 1998, 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, the other 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, Borrower has requested that Agent and Lenders consent to
the sale by MEM Company, Inc. ("MEM") of the Northvale Property, which is
located at Union Street Extension (Lot 1), Northvale, New Jersey (the
"Northvale Property"), as more fully set forth in EXHIBIT A hereto, and to
amend the Loan Documents as hereinafter set forth; and
WHEREAS, Agent and Lenders have agreed to consent to the sale of
the Northvale Property and amend the Loan Documents, on the terms and subject
to the conditions 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. CONSENT AND AMENDMENT RELATING TO NORTHVALE PROPERTY;
NO PERMANENT REDUCTION OF COMMITMENT. Effective as of the Effective Date (as
defined below):
(a) Notwithstanding Section 6.8 of the Credit Agreement, Agent and
Lenders hereby consent to the sale by MEM of the Northvale Property on the
terms set forth in EXHIBIT A hereto, and Agent agrees to release its Lien on
such property in order to permit MEM to effect such sale.
(b) Borrower acknowledges that pursuant to Section 1.2(b)(ii) of
the Credit Agreement, it shall be required, immediately upon receipt by MEM
of proceeds from the sale of the Northvale Property, to prepay the Loans in
an amount equal to the net proceeds as specified in Section 1.2(b)(ii) of the
Credit Agreement, and that such prepayment shall be applied in accordance
with Section 1.2(c) of the Credit Agreement. Notwithstanding anything set
forth to the contrary in the Credit Agreement (particularly the last sentence
of Section 1.2(c) of the Credit Agreement), the Commitment shall not be
permanently reduced by the amount of such prepayment, in the case of the sale
of the Northvale Property as contemplated hereby.
SECTION 2. AMENDMENT OF MAXIMUM OVERADVANCE. Effective as of
March 31, 1998, Section 6(a) of the Waiver, Amendment and Consent, dated as
of February 17, 1998, among the parties hereto, is amended by deleting
"$6,000,000", as the aggregate maximum amount of Overadvances at any time,
and substituting therefor the amount of "$15,000,000".
SECTION 3. AMENDMENT OF MINIMUM EBITDA. Effective as of Xxxxx 00,
0000, xxxxxxxxx (x) of ANNEX G to the Credit Agreement is amended by deleting
"($14,100,000)" as the amount of minimum EBITDA for the 12-month period ended
on the Fiscal Quarter ending March 31, 1998, and substituting therefor the
amount of "($27,700,000)".
SECTION 4. EBITDA AND RESTRUCTURING CHARGES. Section 4(d) of the
Waiver, Amendment and Consent, dated as of February 17, 1998, among the
parties hereto, provides as follows:
Solely for the purpose of testing minimum EBITDA, maximum Leverage
Ratio and minimum Interest Coverage Ratio Financial Covenants at March
31, 1998, there shall be added to the items listed in clause (c) of
the definition of "EBITDA" in ANNEX A to the Credit Agreement the
following item: "restructuring charges for such period in an aggregate
amount not to exceed $11,600,000".
Effective as of March 31, 1998, the preceding provision is amended by
deleting "$11,600,000", and substituting therefor the amount of "$35,100,000".
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE 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 Consent and Amendment (and each of the other documents to be executed by
such Person pursuant hereto) and the creation of all Liens provided for
herein: (1) are within
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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 Consent and Amendment and other documents to be executed
and delivered by the Credit Parties have been duly executed and delivered by
each Credit Party and this Consent and Amendment and the Loan Documents as
amended hereby constitute the legal, valid and binding obligation of such
Credit Party enforceable against it in accordance with their terms.
(c) After giving effect to the consent and amendments contained in
this Consent and Amendment, each of the representations and warranties of the
Credit Parties contained in the 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 such date, except to the extent any such representation or 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 the consent and amendments contained in
this Consent and Amendment, no Default or Event of Default shall be
continuing except with regard to Section 6.14 of the Credit Agreement as
contemplated by Section 1 of the Waiver, Amendment and Consent, dated as of
February 17, 1998, and Section 1 of the Waiver and Amendment, dated as of
March 31, 1998, in each case among the parties hereto.
SECTION 6. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
CONSENT AND AMENDMENT. Except as otherwise expressly provided herein, this
Consent 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 all Lenders (such date
is referred to herein as the "Effective Date"):
(a) Agent shall have executed this Consent and Amendment.
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(b) Agent shall have received, in form and substance satisfactory
to Agent, this Consent and Amendment, duly executed and delivered by
Borrower, the other Credit Parties and all Lenders.
SECTION 7. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) On
and after the Effective Date, each reference in the Loan Documents to "this
Agreement", "herein", "hereof", "hereunder" or words of similar import, shall
mean and be a reference to such Loan Document as amended hereby.
(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 Consent and
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of Lenders under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 8. 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 Consent and
Amendment.
SECTION 9. GOVERNING LAW. THIS CONSENT 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 10. SECTION TITLES. Section titles contained in this
Consent 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 11. COUNTERPARTS. This Consent and Amendment may be
executed in any number of separate counterparts, each of which shall
collectively and separately constitute one agreement.
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IN WITNESS WHEREOF, this Consent and Amendment has been duly
executed as of the date first written above.
XXXX PERFUMES CORP.
By:
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Name:
Title:
Other Credit Parties:
RENAISSANCE COSMETICS, INC.
COSMAR CORPORATION
RCI CHINA, INC.
GREAT AMERICAN COSMETICS, INC.
HOUBIGANT (1995) LIMITED
MEM COMPANY, INC.
TINKERBELL, INC.
(F/K/A XXXXXX XXXXXX, INC.)
RENAISSANCE INTERNATIONAL
EXPORT, INC.
By:
----------------------------
Name:
Title:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By:
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Name:
Title: Duly Authorized Signatory
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as Lender
By:
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Name:
Title:
PNC BANK, N.A.,
as Lender
By:
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Name:
Title:
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