EXHIBIT 10.3
SECOND AMENDMENT AND WAIVER
TO SECOND AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT AND
TERM LOAN AGREEMENT
Second Amendment and Waiver, dated as of January 29, 1999 (the "Effective
Date"), to Second Amended and Restated Multicurrency Revolving Credit and Term
Loan Agreement (this "Amendment"), by and among (a) SAMSONITE CORPORATION, a
Delaware corporation (the "Company"), (b) SAMSONITE EUROPE N.V., a corporation
organized under the laws of Belgium ("Samsonite Europe") and (c) BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, BANKBOSTON, N.A. and the other lending
institutions from time to time listed on Schedule 1 to the Credit Agreement (as
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hereinafter defined) (collectively, the "Lenders"), amending certain provisions
of the Second Amended and Restated Multicurrency Revolving Credit and Term Loan
Agreement dated as of June 24, 1998, as amended by the First Amendment to Second
Amended and Restated Multicurrency Revolving Credit and Term Loan Agreement,
dated as of October 1, 1998, and as the same may be further amended, modified,
supplemented, and in effect from time to time (the "Credit Agreement"), by and
among the Company, Samsonite Europe, the Lenders, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as administrative agent for the Agents and the Lenders
(the "Administrative Agent"), BANKBOSTON, N.A., as syndication agent for the
Agents and the Lenders (the "Syndication Agent"), GENERALE BANK N.V., as foreign
agent for the Agents and the Lenders (the "Foreign Agent"), and as fronting bank
(the "Fronting Bank"), CANADIAN IMPERIAL BANK OF COMMERCE, as documentation
agent for the Agents and the Lenders (the "Documentation Agent"), and the other
parties thereto. Terms not otherwise defined herein which are defined in the
Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrowers and the Lenders have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
(S)1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the satisfaction
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of the applicable conditions precedent set forth in (S)3 hereof, the Credit
Agreement is hereby amended as follows:
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(S)1.1. APPLICABLE MARGIN.
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THE TABLE IN THE DEFINITION OF APPLICABLE MARGIN CONTAINED IN (S)1.1 OF THE
CREDIT AGREEMENT IS HEREBY AMENDED BY SUBSTITUTING THE FOLLOWING FOR THE
EXISTING ROW ENTITLED "TIER 7" OF SUCH TABLE:
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TIER GREATER 3.00% 3.50% 1.9375% 2.00% 2.50% 0.500%
7 THAN OR
EQUAL TO
5.50:1.0
0
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(S)1.2. REAL ESTATE COLLATERAL ARRANGEMENTS.
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(a) Section 7 of the Credit Agreement is hereby amended by inserting the
following phrase into Section 7.1(a) and Section 7.2(a) immediately after the
phrase "real property" and before the semi-colon in each of Section 7.1(a) and
Section 7.2(a):
"(except for real property required to be mortgaged as
Collateral under Section 9.24 hereof)"
(b) Section 9.24 of the Credit Agreement is hereby amended by adding the
following new text at the end of such Section 9.24:
"As soon as practicable and in any event no later than March 31, 1999,
the Company and the Guarantors that are Domestic Subsidiaries shall have
executed and delivered such mortgages, deeds of trust, and other Security
Documents and such other related documents, and taken such other actions, as
may be reasonably requested by the Administrative Agent in order for the
Administrative Agent, in its capacity as Collateral Agent for the Lenders,
to have legal, valid and enforceable first priority (except for (a)
Permitted Liens entitled to priority under applicable law and (b) at such
time as the Administrative Agent shall have entered into the applicable
Collateral Agency Agreement relating thereto, the PBGC Ratable Lien),
perfected mortgage liens and security interests upon any and all owned Real
Estate located in Denver, Colorado and the surrounding communities (whether
now owned or hereafter acquired) of the Company and the Guarantors that are
Domestic Subsidiaries ("Denver Owned Real Estate") as security for the
Obligations of the applicable grantor of such Denver Owned Real Estate as
Collateral. Without limiting the generality of the foregoing, within the
required time period specified above, (i) all filings, recordings,
deliveries of documents and other actions necessary or desirable in the
opinion of the Administrative Agent to perfect, protect and preserve such
mortgage liens and security interests shall have been duly effected or there
shall have been made arrangements for the same which are satisfactory to the
Administrative Agent, (ii) the Administrative Agent shall have received
evidence of the foregoing in form and substance satisfactory to the
Administrative Agent, (iii) the Administrative Agent shall have received
from each of the Company and the Guarantors that are Domestic
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Subsidiaries an accurate and complete list and description of all Denver
Owned Real Estate (and any and all other then owned Real Estate located in
the United States of America of the Company and the Guarantors that are
Domestic Subidiaries), and the results of UCC, title, and other lien
searches with respect to the applicable Denver Owned Real Estate indicating
no liens other than Permitted Liens, and otherwise in form and substance
satisfactory to the Administrative Agent, (iv) the Administrative Agent
shall have received (x) evidence of corporate, limited liability company, or
other applicable organizational authority of the Company and the relevant
Guarantors that are Domestic Subsidiaries with respect to the granting of
the Denver Owned Real Estate as Collateral by them, (y) signed copies of
favorable legal opinions, addressed to the Administrative Agent, of counsel
to the Company and the applicable Guarantors as to the matters referred to
in the foregoing clause (x) of this paragraph; as to the Collateral Agent
holding valid, perfected and subsisting liens in the Denver Owned Real
Estate as Collateral, enforceable against all third parties in accordance
with their terms (subject only to Permitted Liens); as to the relevant
mortgages, deeds of trust, and other applicable Security Documents being
legal, valid and binding obligations of each applicable Obligor, enforceable
in accordance with their terms (subject to customary qualifications and
limitations); and as to such other matters as the Administrative Agent may
reasonably request (together with appropriate corporate (or other
applicable) documentation and certificates relating thereto), and (z) a
certificate of insurance with respect to the Denver Owned Real Estate in
form and substance satisfactory to the Administrative Agent, from an
independent insurance broker, identifying insurers, types of insurance,
insurance limits, policy terms, identifying the Collateral Agent (on behalf
of the Lenders) as additional insured and as mortgagee and loss payee and
otherwise describing the insurance obtained in accordance with the
provisions of this Agreement and the applicable Security Documents relating
to the Denver Owned Real Estate, and certified copies of all policies
evidencing such insrance (or certificates with respect thereto signed by the
insurer or an agent authorized to bind the insurer), together with evidence
of appropriate flood insurance or evidence that flood insurance is not
required as to the Denver Owned Real Estate; (v) the Administrative Agent
shall have received appropriate policies of mortgagee title insurance in its
favor, in form and substance (and in an amount of coverage) satisfactory to
the Administrative Agent, with respect to its mortgage liens and security
interests in the Denver Owned Real Estate, issued by title insurers approved
by the Administrative Agent, together with evidence of full payment of the
related premiums by the Company, and such real estate surveys, surveyor's
certificates, title affidavits, and other related documents as the
Administrative Agent deems necessary or appropriate in connection with such
title insurance (with the costs and expenses of the foregoing to be paid by
the Company); (vi) the Administrative Agent shall have received
environmental site assessment reports (including, without limitation, the
environmental site assessment reports provided for in Section 9.16 hereof)
covering such matters as the Administrative Agent shall reasonably request
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with respect to the Denver Owned Real Estate from environmental consultants
approved by the Administrative Agent (with the costs and expenses of the
same to be paid by the Company), and (vii) the Administrative Agent shall
have received such appraisals of the Denver Owned Real Estate as it deems
necessary or appropriate (whether pursuant to any applicable requirements
of federal or state banking laws or regulations, its internal real estate
collateral policies, or otherwise) from appraisers approved by the
Administrative Agent, in such form and detail and covering such matters as
to the Denver Owned Real Estate as the Administrative Agent shall
reasonably request (with the costs and expenses of the same to be paid by
the Company). Notwithstanding the foregoing, the foregoing requirements of
this Section 9.24 with respect to the Denver Owned Real Estate shall be
subject to the limitations and exclusions set forth in Sections 7.1(e) and
7.2(d) hereof with respect to certain encumbered Real Estate."
(S)2. LIMITED WAIVER OF INTEREST COVERAGE RATIO. Subject to the
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satisfaction of the applicable conditions precedent set forth in (S)3 hereof,
the Lenders hereby waive, solely with respect to the determination of compliance
therewith as of January 31, 1999, non-compliance by the Borrowers with Section
11.2.1(b) of the Credit Agreement. Such waiver shall not apply to any other
provision of the Credit Agreement or any other fiscal period.
(S)3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be deemed to be,
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and shall become, effective as of the Effective Date but only upon, and subject
to, the execution and delivery by the Company, Samsonite Europe, and the
Majority Lenders of one or more counterparts of this Amendment to the
Administrative Agent on a date that is a Business Day not later than January 29,
1999 (such date being hereinafter referred to as the "Amendment Closing Date").
(S)4. REPRESENTATIONS AND WARRANTIES. Each of the Company and Samsonite
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Europe hereby repeats, on and as of the date of the execution and delivery
hereof and the Amendment Closing Date, each of the representations and
warranties made by it in (S)8 of the Credit Agreement (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents, changes occurring in the ordinary course
of business that singly or in the aggregate are not materially adverse, and to
the extent that such representations and warranties relate expressly to an
earlier date), provided, that all references therein to the Credit Agreement
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shall refer to such Credit Agreement as amended hereby. In addition, each of
the Company and Samsonite Europe hereby represents and warrants that the
execution and delivery by such Borrower of this Amendment and the performance by
such Borrower of all of its respective agreements and obligations under this
Amendment and the Credit Agreement as amended hereby are within the corporate
power and authority of such Borrower, and have been duly authorized by all
necessary corporate action on the part of such Borrower, and each further
represents and warrants that the execution and delivery by such
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Borrower, of this Amendment and the performance by it of the transactions
contemplated hereby will not contravene any term or condition set forth in any
agreement or instrument to which it is a party or by which it is bound,
including, in the case of the Company, but not limited to, the Subordinated Debt
Documents and the 1998 Preferred Stock Documents.
(S)5. RATIFICATION, ETC. Except as expressly provided for herein, the
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Credit Agreement and all documents, instruments and agreements related thereto,
including, but not limited to, the Security Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Amendment shall be read and construed as a single
agreement. This Amendment shall constitute one of the Loan Documents, and the
obligations of the Borrowers under this Amendment shall constitute Obligations
for all purposes of the Loan Documents. All references in the Credit Agreement,
the Loan Documents or any related agreement or instrument to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended hereby.
(S)6. NO WAIVER. Nothing contained herein shall constitute a waiver of,
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impair or otherwise adversely affect any Obligations, any other obligation of
the Company or Samsonite Europe or any rights of the Agents or the Lenders
consequent thereon, except for the limited waiver expressly provided for herein.
(S)7. COUNTERPARTS. This Amendment may be executed in one or more
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counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(S)8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, APPLICABLE TO
TRANSACTIONS TO BE PERFORMED WHOLLY WITHIN SUCH STATE (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal by their respective officers thereunto duly authorized.
[Signature Pages Follow]
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Signature Pages for Borrowers
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Each of the undersigned Borrowers hereby consents and agrees to all of the
provisions of the foregoing Amendment:
The Company: SAMSONITE CORPORATION
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By: /s/ Xxxxxxx X. Xxxxx............................
Name: Xxxxxxx X. Xxxxx..............................
Title: Chief Financial Officer......................
Samsonite Europe: SAMSONITE EUROPE N.V.
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By: /s/ Xxxxxx X. Xxxxxxx...........................
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Xxxxx X.Xxxxxxxx..........................
Name: Xxxxx X. Xxxxxxxx...........................
Title: Senior Vice President
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxx, Xx....................
Name: Xxxxxxx X. Xxxx, Xx......................
Title: Managing Director.......................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
CIBC INC.
By: /s/ Xxxxxx Xxxxxxx..........................
Name: Xxxxxx Xxxxxxx.............................
Title: CIBC Xxxxxxxxxxx Corp., AS AGENT..........
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
GENERALE BANK N.V.
By: /s/ Xxxxx Xxxxxx.......................
Name: Xxxxx Xxxxxx.........................
Title: Senior Vice President...............
By: /s/ X. Xxxxxxxx.......................
Name: X. Xxxxxxxx..........................
Title: Senior Vice President...............
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxx.........................
Name: Xxxxxxx X. Xxxxxxx...........................
Title: Vice President..............................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx XxXxxxx.......................
Name: Xxxxx XxXxxxx.........................
Title: Senior Risk Manager..................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
NATIONAL BANK OF CANADA
By: /s/ Xxxxxxx X. Xxxxx /s/ A.M. Xxxxxxx, Jr.
Name: Xxxxxxx X. Xxxxx A.M. Xxxxxxx, Jr.
Title: Vice President Vice President/Manager
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxx...........................
Name: Xxxxxxx Xxxxxxx.............................
Title: Vice President.............................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
SENIOR DEBT PORTFOLIO
By:
Boston Management and Research,
as Investment Advisor
By:....................................
Name:..................................
Title:.................................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
OXFORD STRATEGIC INCOME FUND
By:
Xxxxx Xxxxx Management, as
Investment Advisor
By:..............................
Name:............................
Title:...........................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:......................................
Name:....................................
Title:...................................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
SENIOR HIGH INCOME PORTFOLIO,
INC.
By:..........................
Name:........................
Title:.......................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By:
Pilgrim Investments, Inc.,
its Investment Manager
By: /s/ Xxxxxx X. Xxxxxx..........................
Name: Xxxxxx X. Xxxxxx............................
Title: Vice President.............................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment
Management Company, Inc.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx...........................
Name: Xxxxx X. Xxxxxxx.............................
Title: Managing Director...........................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
CYPRESSTREE INSTITUTIONAL
FUND, LLC
By:
CypressTree Investment
Management Company, Inc.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx......................
Name: Xxxxx X. Xxxxxxx.........................
Title: Managing Director.......................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
KZH CYPRESSTREE1 LLC
By: /s/ Xxxxxxxx Xxxxxx.....................
Name: Xxxxxxxx Xxxxxx........................
Title: Authorized Agent......................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
KZH ING2 LLC
By:............................
Name:..........................
Title:.........................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By:
ING Capital Advisors, Inc.,
as Investment Advisor
By:.........................
Name:.......................
Title:......................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
CYPRESSTREE INVESTMENT
PARTNERS II, LTD.
By: CypressTree Investment Management Company,
Inc.,
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx...................
Name: Xxxxx X. Xxxxxxx...................
Title: Managing Director...................
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Signature Pages for Lenders
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The undersigned Lender hereby consents and agrees to the foregoing
Amendment:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx, CFA, CPA................
Name: Xxxxx Xxxxxxx............................
Title: President, Highland Capital Management L.P.
