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EXHIBIT 10(ff)
THIRD AMENDMENT AND WAIVER TO CREDIT AGREEMENT
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THIS THIRD AMENDMENT AND WAIVER (this "AMENDMENT"), to the Credit
Agreement dated as of July 30, 1997, among SAFETY 1ST, INC., a Massachusetts
Corporation ("SAFETY"), SAFETY 1ST HOME PRODUCTS CANADA INC., a Canadian
federal corporation ("SAFETY CANADA" and, together with Safety, the
"BORROWERS"), each of the financial institutions from time to time parties
thereto as lenders (the "LENDERS"), BT COMMERCIAL CORPORATION, as agent (in such
capacity, the "AGENT") for the Lenders and BANKERS TRUST COMPANY, as issuer of
letters of credit (in such capacity, the "ISSUING BANK"), is made as of
March 31, 1998 among the Borrowers and the undersigned Lenders.
W I T N E S E T H :
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WHEREAS, the Borrowers, the Lenders, the Agent and the Issuing Bank are
parties to the Credit Agreement, dated as of July 30, 1997 (as heretofore
amended on October 29, 1997 and January 23, 1998 and as the same may be further
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless otherwise defined herein);
WHEREAS, Safety issued 15,000 shares of its Series A Preferred Stock (the
"SERIES A PREFERRED STOCK") to certain investors (the "INVESTORS") pursuant to
the Stock Purchase Agreement;
WHEREAS, Safety desires to issue 15,000 shares of a new class of preferred
stock (the "SERIES B ISSUANCE") to be designated as its Series B Preferred
Stock (the "SERIES B PREFERRED STOCK") containing terms set forth in a
Designation of Series B Preferred Stock, substantially in the form of Exhibit A
attached hereto (the "SERIES B CERTIFICATE OF DESIGNATION").
WHEREAS, Safety and the Investors desire to memorialize their prior
agreement to modify the terms of the Series A Preferred Stock to permit Safety
at any time to redeem any or all of the shares of its preferred stock and to
permit the Investors, under the circumstances described in the Series B
Certificate of Designation, to require Safety to redeem all of the shares of its
preferred stock then outstanding, which modification would be accomplished
pursuant to a Share Exchange Agreement, substantially in the form of Exhibit B
attached hereto (the "EXCHANGE AGREEMENT") under which each Investor agrees to
exchange its shares of Series A Preferred Stock for an equal number of shares of
Series B Preferred Stock (the "EXCHANGE").
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WHEREAS, the Borrowers have requested that the undersigned Lenders agree to
amend and waive certain provisions of the Credit Agreement to permit Safety to
consummate the Series B Issuance and the Exchange; and
WHEREAS, the undersigned Lenders are agreeable to such amendments and
waivers, but only on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Effective as of December 31,
1997, but subject to the satisfaction of the conditions precedent set forth in
Section 3, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by inserting the
following definitions in their proper alphabetical sequence;
"'Series B Certificate of Designation' means the Certificate of
Designation relating to the Series B Preferred Stock.
'Series B Preferred Stock' means 15,000 shares of Series B Preferred
Stock issued by Safety, which contain the terms and conditions set forth in
the Series B Certificate of Designation.'"
(b) Section 7.2(d) of the Credit Agreement is amended by (i) inserting
"(i)" immediately after "except that" and (ii) inserting the following
immediately before the period at the end of such Section: "and (ii) Safety may
file the Series B Certificate of Designation."
(c)Section 7.2(h) of the Credit Agreement is amended by (i) deleting
"Certificate of Designation of Safety dated as of July 28, 1997" and
substituting therefor "Series B Certificate of Designation" and (ii) deleting
"Safety's Series A Preferred Stock" and substituting therefor "the Series B
Preferred Stock."
SECTION 2. WAIVERS. Effective as of December 31, 1997, but subject to the
satisfaction of the conditions of effectiveness set forth in Section 3 hereof:
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(a) the Lenders hereby waive compliance with Section 7.2(j) of the
Credit Agreement, but solely to the extent required to permit Safety to
consummate the Series B Issuance and the Exchange; and
(b) the Lenders hereby waive compliance with Section 7.2(l)(ii) of the
Credit Agreement, but solely to the extent required to permit Safety to
consummate the Series B Issuance and the Exchange.
SECTION 3. EFFECTIVENESS. This Amendment shall become effective upon
the Agent's receipt of (a) this Amendment, duly executed by the Borrowers and
the majority Lenders and duly consented to by the Guarantors, and (b) evidence
satisfactory to it that the Exchange Agreement has become effective in
accordance with its terms.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. Each of the
Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of this
Amendment, the Credit Agreement as amended hereby and any documents delivered
in connection herewith to which such Borrower is a party (i) are within such
Borrower's corporate powers and authority, have been duly authorized by all
necessary corporate action and do not contravene (A) such
Borrower's Governing Documents (including, without limitation, the certificate
of designation for any preferred stock of a Borrower), (B) any Requirement of
Law applicable to it or any of its properties or (C) any franchise, license,
permit, indenture, contract, lease, agreement, instrument or other commitment
to which it is a party or by which it or any of its properties are bound, and
(ii) will not result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by any Borrower
(other than Liens permitted by the Credit Agreement).
(b) This Amendment, the Credit Agreement as amended hereby and any
documents delivered in connection herewith to which such Borrower is a party
constitute the legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditor's rights generally and general principles of equity.
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(c) There is no pending or, to the best of its knowledge, threatened
litigation, proceeding, inquiry or other action seeking an injunction or other
restraining order with respect to the transactions contemplated by this
Amendment or the Credit Agreement as amended hereby.
(d) Since December 31, 1997 there has occurred no change, occurrence,
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
(e) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
(f) No shares of the Series A Preferred Stock will be outstanding upon
the Consummation of the Exchange.
SECTION 5. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Credit Agreement to (i) "this Agreement,"
"hereunder," "hereof," "herein" and words of like import, and such words or
words of like import in each reference in the Credit Documents, shall mean and
be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended and waived hereby, all of the terms
and provisions of the Credit Agreement shall remain in full force and effect
and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment to or a
waiver of any right, power or remedy of the Agent or the Lenders under any of
the Credit Documents, or constitute an amendment to or a waiver of any
provision of any of the Credit Documents.
(d) Nothing in this Amendment shall be deemed to constitute a consent
by the Lenders to any obligation Safety may have to redeem any or all of the
shares of the Series B Preferred Stock pursuant to Section 5(b) of the Series B
Certificate of Designation or otherwise.
(e) This Amendment shall be deemed to be a Credit Document for all
purposes.
SECTION 6. EXECUTION IN COUNTERPARTS; ETC. This Amendment may be
executed in counterparts each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument. This Amendment and each of the other documents
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delivered in connection herewith may be executed and delivered by telecopier
with the same force and effect as if the same was a fully executed and
delivered original manual counterpart.
SECTION 7. COSTS, EXPENSES AND TAXES. The Borrowers shall jointly and
severally pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment and the
documents contemplated hereby or delivered in connection herewith, and agrees
to hold the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
The Borrowers shall jointly and severally pay for all of the reasonable
out-of-pocket expenses incurred by the Agent in connection with the
preparation, negotiation and closing of this Amendment, including, without
limitation, the reasonable fees and expenses of Luskin, Xxxxx & Xxxxxx LLP,
counsel to the Agent.
SECTION 8. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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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 date
first above written.
BORROWERS
SAFETY 1ST, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President & COO
SAFETY 1ST HOME PRODUCTS CANADA, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
LENDERS
BT COMMERCIAL CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Sr. Vice President
LASALLE NATIONAL BANK
By:
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Name:
Title:
BNY FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Asst. Vice President
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SUMMIT COMMERCIAL/GIBRALTAR CORP.
BY: /s/ Xxxxxx Xxxxxxxx
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NAME: Xxxxxx Xxxxxxxx
TITLE: Ex. Vice President
FINOVA CAPITAL CORPORATION
BY: /s/ Xxxxxx Xxxxxxx
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NAME: Xxxxxx Xxxxxxx
TITLE: Vice President
Agreed and Consented as of the
First Date Written Above:
SAFETY 1ST INTERNATIONAL, INC.
BY: /s/ Xxxxxxx X. Xxxx
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NAME: Xxxxxxx X. Xxxx
TITLE: Vice President
SAFETY 1ST (EUROPE) LIMITED
BY: /s/ Xxxxxxx X. Xxxx
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NAME: Xxxxxxx X. Xxxx
TITLE: Director
3232301 CANADA, INC.
BY: /s/ Xxxxxxx X. Xxxx
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NAME: Xxxxxxx X. Xxxx
TITLE: Vice President
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