Exhibit 10.81
WAIVER AND AMENDMENT
WAIVER AND AMENDMENT, dated as of March 31, 1998, among Xxxx
Perfumes Corp. ("BORROWER"), the other Credit Parties party 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, the Events of Default specified on SCHEDULE A attached
hereto are expected to occur and continue (the "EXPECTED EVENTS OF DEFAULT");
and
WHEREAS, Borrower has requested that Agent and Lenders waive the
Expected Events of Default and amend the Loan Documents as hereinafter set
forth; and
WHEREAS, Agent and Lenders have agreed to waive the Expected Events
of Default 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. WAIVER. Agent and Lenders hereby waive the Expected
Events of Default effective as of the Effective Date (as defined herein),
except that such waiver shall not constitute a waiver of the Expected Events
of Default for purposes of Section 6.14 of the Credit Agreement (Restricted
Payments) until July 31, 1998, whether or not Borrower is in compliance with
any of the financial covenants set forth the Credit Agreement that are tested
after the date hereof.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby amended
effective on the Effective Date, as follows:
(a) MINIMUM EBITDA. Paragraph (b) of ANNEX G to the Credit
Agreement is amended by deleting "$4,400,000" 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 "($14,100,000)".
(b) LOANS AND ADVANCES TO PLEDGED ENTITIES. Notwithstanding CLAUSE
(H) of Section 6.2 of the Credit Agreement, from and after the Effective Date
and until June 30, 1998, the limitation of "$5,000,000" specified in CLAUSE
(H) of Section 6.2 of the Credit Agreement shall be increased to "$8,000,000".
SECTION 3. FEES. In consideration of the waivers and amendments
herein, Borrower shall pay to Agent an aggregate fee of $500,000, to be
divided among the Lenders executing this Waiver and Amendment based on their
Pro Rata Share (the "Amendment Fee"). The Amendment Fee shall be paid as
follows: (A) $100,000 on the Effective Date (the "Current Amendment Fee") and
(B) $400,000 on July 31, 1998 (the "Deferred Amendment Fee"). In addition,
Borrower shall pay interest in cash with respect to the Deferred Amendment
Fee to Agent for the ratable benefit of Lenders executing this Waiver and
Amendment in arrears on each Interest Payment Date commencing on the first
such date after the Effective Date, at a rate equal to the Index Rate plus
2.00% per annum, calculated on a basis of a 360 day year for the actual
number of days occurring in the period for which such interest is payable,
and based on the amount of the Deferred Amendment Fee unpaid. Borrower
acknowledges that the Deferred Amendment Fee and any interest thereon shall
constitute Obligations under the Credit Agreement.
SECTION 4. 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 Waiver 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 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
2
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 and the other documents to be
executed and delivered by the Credit Parties have been duly executed and
delivered by each Credit Party and this Waiver 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 waivers and amendments contained in
this Waiver 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 waivers and amendments contained in
this Waiver 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, among the parties hereto.
SECTION 5. 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.
(c) Agent on behalf of Lenders executing this Waiver and Amendment
shall have received the Current Amendment Fee.
3
SECTION 6. 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 Waiver 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 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 separately constitute one agreement.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, this Waiver and Amendment has been duly
executed as of the date first written above.
XXXX PERFUMES CORP.
By:
--------------------------------
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:
5
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By:
------------------------------------
Name:
Title: Duly Authorized Signatory
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as Lender
By:
------------------------------------
Name:
Title:
PNC BANK, N.A.,
as Lender
By:
------------------------------------
Name:
Title:
6
SCHEDULE A
EXPECTED EVENTS OF DEFAULT
Events of Default under Section 8.1(b) of the Credit Agreement arising as a
result of Borrower's failure to comply with (i) the Maximum Leverage Ratio
Financial Covenant at the end of the Fiscal Quarter ending March 31, 1998,
and (ii) the Minimum Interest Coverage Ratio Financial Covenant for the
12-month period ended on the Fiscal Quarter ending March 31, 1998, as set
forth in paragraphs (c) and (d) of ANNEX G to the Credit Agreement,
respectively.
7
