AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT NO. 3, dated as of July 23, 1999, to the
Credit Agreement, dated as of December 31, 1996 (the "Credit
Agreement"), among (i) XXXXXXXX BRANDS INTERNATIONAL, INC.,
a New Jersey corporation ("Borrower"), (ii) the financial
institutions which are now, or in accordance with SECTION
12.2 of the Credit Agreement hereafter become, parties to
the Credit Agreement (collectively, "LENDERS"), (iii)
BANKBOSTON, N.A. as Administrative Agent for the Lenders,
and (iv) BANKBOSTON, N.A., ING BANK N.V., and PNC BANK,
N.A., as Co-agents for the Lenders.
RECITALS
The Borrower, the Lenders and the Agents party to
this Amendment No. 3 ("THIS AGREEMENT") have agreed to amend
certain of the provisions contained in the Credit Agreement
as set forth herein.
Accordingly, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Unless otherwise defined
herein, terms defined in the Credit Agreement are used
herein as therein defined.
ARTICLE II
AMENDMENTS
Effective on and as of July 23, 1999 ("EFFECTIVE
DATE"), the Credit Agreement is hereby amended in each of
the following respects:
SECTION 2.1. AMENDMENTS TO CERTAIN NEGATIVE COVENANTS.
(a) SECTION 9.2.1(D). SUBCLAUSE (II) of Section
9.2.1(d) is amended by deleting the Dollar amount
"$375,000,000" appearing in such SUBCLAUSE (II), and by
inserting in place thereof the Dollar amount
"$325,000,000."
(b) SECTION 9.2.3(A). PARAGRAPH (A) of SECTION
9.2.3 is amended to read in its entirety as follows:
"(a) LEVERAGE RATIO: Permit the Leverage
Ratio (i) to be greater than the ratio of 0.40:1.0
at any time prior to July 1, 1999, or (ii) to be
greater than the ratio of 0.50:1.0 at any time on
or after July 1, 1999."
(c) SECTION 9.2.4(B). SUBCLAUSE (II) of SECTION
9.2.4(B) is amended by inserting the following proviso
at the end of such SUBCLAUSE (II), immediately prior to
the word "and":
"; PROVIDED, HOWEVER, that the Borrower shall
not at any time after June 30, 1999 use more than
$5,000,000 of the proceeds from the Borrower's
issuance of its 10% Senior Notes due 2009 to make
any payments or distributions on account of the
redemption, repurchase or other acquisition for
value of, or to prepay, any Indebtedness for
Borrowed Money of the Borrower under its 7%
Convertible Subordinated Debentures due 2001;"
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Borrower represents and warrants to and covenants
with each Agent and Lender as follows:
SECTION 3.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each
of the representations and warranties made by or on behalf
of the Borrower to the Agents and the Lenders in the Loan
Documents was true and correct in all material respects when
made and is true and correct in all material respects on and
as of the date hereof, except, in each case, (a) as affected
by the consummation of the transactions contemplated by the
Loan Documents (including this Agreement), and (b) to the
extent that any such representation or warranty relates by
its express terms solely to a prior date.
SECTION 3.2. CORPORATE AUTHORITY, ETC. The execution
and delivery by the Borrower of this Agreement and the
performance by the Borrower of its agreements and
obligations under this Agreement have been duly and properly
authorized by all necessary corporate or other action on the
part of the Borrower, and do not and will not conflict with,
result in any violation of, or constitute any default under
(a) any provision of any Governing Document of the Borrower,
(b) any Contractual Obligation of the Borrower, or (c) any
Applicable Law.
SECTION 3.3. VALIDITY, ETC. This Agreement has been
duly executed and delivered by the Borrower and constitutes
the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its
terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other
similar laws at the time in effect affecting the
enforceability of the rights of creditors generally and to
general equitable principles. The Borrower hereby ratifies
and confirms all of the Obligations in all respects.
SECTION 3.4. NO DEFAULTS. Before and after giving
effect to this Agreement, no Defaults or Events of Default
are or will be continuing under the Credit Agreement.
SECTION 3.5. AMENDMENT FEE. In consideration of the
execution and delivery of this Agreement by the
Administrative Agent and the Required Lenders, the Borrower
hereby promises to pay to the Administrative Agent on July
30, 1999, for the account of each of the Lenders (each, a
"CONSENTING LENDER") that (a) executes and delivers this
Agreement, AND (b) delivers to the Administrative Agent or
its special counsel by July 23, 1999, an execution copy of
this Agreement signed by such Lender (or a facsimile copy
thereof), an amendment fee ("AMENDMENT FEE") equal to 1/8th
of 1% (.00125) of the Commitment of each such Consenting
Lender in effect on the Effective Date.
ARTICLE IV
PROVISIONS OF GENERAL APPLICATION
This Agreement shall become effective ON AND AS OF THE
EFFECTIVE DATE once the Administrative Agent has received
(a) duly executed counterparts hereof signed by the Borrower
and the Required Lenders, and (b) payment of the Amendment
Fee for the account of each Consenting Lender. Except as
otherwise expressly provided by this Agreement, all of the
terms, conditions and provisions of the Credit Agreement and
each of the other Loan Documents shall remain unaltered.
This Agreement is a Loan Document for all purposes of the
Credit Agreement. This Agreement and the rights and
obligations hereunder of each of the parties hereto shall in
all respects be construed in accordance with and governed by
the internal laws of the State of New York. This Agreement
may be executed in any number of counterparts and by
different parties hereto in separate counterparts, but all
of such counterparts shall together constitute but one and
the same agreement. In making proof of this Agreement, it
shall not be necessary to produce or account for more than
one counterpart hereof signed by each of the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused
this AMENDMENT NO. 3 to be executed by their respective
authorized officers as of the date first above written.
THE BORROWER:
XXXXXXXX BRANDS INTERNATIONAL, INC.
By: /s/Xxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and
Treasurer
THE AGENTS AND LENDERS:
BANKBOSTON, N.A., AS ADMINISTRATIVE
AGENT, AS ONE OF THE CO-AGENTS,
AND AS ONE OF THE LENDERS
By: /s/Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
ING BANK N.V., AS ONE OF THE CO-
AGENTS AND AS ONE OF THE LENDERS
By: /s/Drs. H. W. L. Xxxxxxxxx
------------------------
Name: Drs. H. W. L. Xxxxxxxxx
Title:
By: /s/Xx. X.X. xxXxxxxx
-------------------------
Name: Xx. X.X. xxXxxxxx
Title:
PNC BANK, N.A., AS ONE OF THE CO-
AGENTS AND AS ONE OF THE LENDERS
By; /s/Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH, AS ONE OF THE LENDERS
By: /s/Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA ILLINOIS, AS ONE OF
THE LENDERS
By: /s/Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH, AS ONE OF THE
LENDERS
By: /s/Hans Chr. Kjlsrud
-----------------------
Name: Hans Chr. Kjelsrud
Title: Sr. Vice President
By: /s/ Xxxxxx Dognancay
--------------------
Name: Xxxxxx Dognancay
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as one of the Lenders
By: /s/Nobuo Tominago
----------------------------
Name: Nobuo Tominago
Title: Chief Manager
FIRSTSTAR BANK, N.A., as one of the
Lenders
By: /s/Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SUNTRUST BANK, N.A., as one of the
Lenders
By: /s/Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Mgg. Director
