FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
------------------------------
This First Amendment to Amended and Restated Credit Agreement (the
"Agreement"), made as of the 20th day of July, 2001, by and between FLEET
NATIONAL BANK, a national banking association with its principal office at 000
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000, in its capacity as
Administrative Agent ("Agent") and XXXXXXXXX XXXXX, INC., a Florida
corporation with its principal place of business at 00000 X.X. 00xx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxx 00000 ("Borrower").
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the terms and conditions of that certain Amended
and Restated Credit Agreement dated as of January 29, 2001 among Borrower,
Agent, Credit Suisse First Boston, as Syndication Agent, Fleet Securities,
Inc. and Credit Suisse First Boston, as Joint Lead Arranger and Joint Book
Managers and the Banks named therein (as amended, the "Credit Agreement"), the
Banks agreed to make a revolving credit loan available to Borrower, subject to
the terms and conditions of the Credit Agreement; and
WHEREAS, Borrower has requested a temporary increase in inventory cap
under the Borrowing Base (as defined in the Credit Agreement); and
WHEREAS, the Required Banks are willing to amend the Credit Agreement
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, and for good and valuable other consideration,
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Defined Terms.
--------- -------------
All capitalized terms not defined herein shall have the same meaning
ascribed to such terms as provided in the Credit Agreement.
Section 2. Representations and Warranties.
--------- ------------------------------
Borrower hereby represents and warrants to Lender that:
(a) Borrower is duly incorporated, validly existing and in good
standing under the laws of the State of Florida and has all requisite
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
(b) Borrower has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement and the execution, delivery
and performance by Borrower of this Agreement has been duly authorized by all
requisite action. This Agreement has been duly
executed and delivered by Borrower, and is the valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its respective
terms.
(c) The execution, delivery and performance by Borrower of this
Agreement will not violate or contravene (i) the articles of incorporation or
by-laws of Borrower, (ii) any provision of any law, rule or regulation
applicable to Borrower, (iii) any order, writ, judgment, injunction, decree,
determination or award of any court or other agency of government to which
Borrower is bound, or (iv) any other agreement, lease, indenture or instrument
to which Borrower is a party or by which Borrower is bound, or be in conflict
with, result in a breach of, or constitute (with due notice or lapse of time
or both) a default under, or result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever, upon any properties or assets
of Borrower pursuant to any such other agreement, lease, indenture or
instrument.
(d) There is no action, suit or proceeding at law or in equity or by or
before any court, governmental instrumentality or other agency pending, or to
Borrower's knowledge, threatened against, or in any way affecting Borrower
which, if adversely determined, would have a material adverse effect on the
business, operations, properties, assets or condition, financial or otherwise,
of Borrower.
(e) No consent, approval or authorization from, or filing of any
declaration or statement with, any court, governmental instrumentality or
other agency is required in connection with or as a condition to the
execution, delivery or performance of this Agreement, by Borrower.
(f) Except as set forth in SCHEDULE I attached hereto, Borrower hereby
reaffirms and restates, as of the date hereof, all of the representations and
warranties made by it in the Credit Agreement, as amended by this Agreement,
except to the extent altered by actions permitted pursuant to the terms
thereof or expressly contemplated pursuant to the terms hereof, or to the
extent Lender has been advised in writing of any inaccuracy with respect to
such representations or warranties and have waived the same in writing.
(g) No Event of Default exists under the Credit Agreement, or any event
which, with the giving of notice or passage of time or both, would constitute
such an Event of Default, has occurred which has not been waived in writing by
Lender or which will not be cured upon the execution and delivery by Borrower
of this Agreement.
Section 3. Amendments to Credit Agreement.
--------- ------------------------------
The Credit Agreement is hereby amended, effective as of the date hereof,
as follows:
Section 3.01. Amended Definitions.
------------ -------------------
Section 1.01 of the Credit Agreement is hereby amended by deleting the
definition "Borrowing Base" and replacing it with the following:
"BORROWING BASE" shall mean, as of any date, the sum of, without
duplication, (a) eighty percent (80%) of the value of all Eligible Accounts
Receivable and the Eligible Arden Accounts
- 2 -
Receivable, determined as of such date, PLUS (b) sixty percent (60%) of the
value of all Eligible Finished Goods Inventory and Eligible Arden Finished
Goods Inventory, determined as of such date, PLUS (c) twenty-five percent
(25%) of the value of all Eligible Raw Materials Inventory and Eligible Arden
Raw Materials Inventory, determined as of such date, PROVIDED, HOWEVER, that
the aggregate amount of availability represented by all Eligible Inventory
shall not exceed One Hundred Fourteen Million Dollars ($114,000,000) from
January 29, 2001 through October 15, 2001 (the "Temporary Inventory Cap") and
Eighty-Seven Million Five Hundred Thousand Dollars ($87,500,000) for all
periods thereafter. The Agent shall be entitled to reduce the foregoing
percentages in its reasonable and sole discretion.
Section 1.01 of the Credit Agreement is hereby further amended by
amending the definition "Applicable Margin" by adding the following proviso:
"and, provided further, that at any time that the Temporary Inventory
Cap is necessary for availability under the Borrowing Base, the Applicable
Margin shall be increased by twenty-five (25) basis points"."
Section 3.02. Amendment to Section 5.01.
------------ -------------------------
Section 5.01 of the Credit Agreement is hereby amended by adding the
following proviso at the end of subsection (f):
"provided, however, from the date hereof until October 15, 2001, a
Borrowing Base Certificate shall be delivered on a weekly basis by Tuesday of
each week for the preceding week."
Section 4. Conditions Precedent to First Amendment.
--------- ---------------------------------------
The effectiveness of the transactions described herein shall be subject
to the following conditions:
(a) This Agreement shall have been executed and delivered by Borrower,
Agent and the Required Banks;
(b) Borrower shall have executed and/or delivered to Agent a
certificate of the Secretary or Assistant Secretary of Borrower certifying as
to the due authorization, execution and delivery by Borrower of this
Agreement;
(c) The fees and disbursements of the Banks (as applicable) shall have
been paid in full; and
(d) All legal matters relating to this Agreement shall be satisfactory
to Agent and its counsel.
- 3 -
Section 5. Ratification.
--------- ------------
Borrower hereby ratifies and confirms all of its obligations, covenants,
duties and agreements set forth in the Credit Agreement, as amended by the
terms hereof. All references to the "Credit Agreement" or the "Agreement"
contained in the Credit Agreement, the Note, the Security Agreement and all
other documents and instruments evidencing obligations of Borrower under or in
connection with the Credit Agreement, the Note or the Security Agreement,
shall be deemed to be amended to refer to the Credit Agreement, as amended by
the terms hereof.
Section 6. Expenses.
--------- --------
All costs and expenses, including reasonable attorneys' fees, relating
to the negotiation, preparation, execution and delivery of this Agreement and
all instruments, agreements and documents contemplated hereby shall be the
responsibility of Borrower.
Section 7. Miscellaneous.
--------- -------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within such State. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The headings of the
Articles and Sections of this Agreement are inserted for convenience only and
shall not constitute a part hereof.
Section 8. No Defenses.
--------- -----------
Borrower hereby acknowledges and agrees that the Credit Agreement, as
amended by the terms hereof, and the other Transaction Documents are not
subject as of the date hereof to any defenses, rights of setoff, claims or
counterclaims that might limit the enforceability thereof.
Section 9. Facility Fee.
--------- ------------
In consideration of Lender's commitment to enter into this Agreement,
Borrower hereby agrees to pay to Banks, as applicable, a facility fee equal to
Two Hundred Eighteen Thousand Seven Hundred Fifty Dollars ($218,750).
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, all as of the
day and year first above written.
AGENT:
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
Senior Vice President
BORROWER:
XXXXXXXXX XXXXX, INC.
By /s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President,
Finance and Treasurer
REQUIRED BANKS:
Name: FLEET NATIONAL BANK
By: /s/ Xxxxx X. XxXxxxxxx
----------------------
Xxxxx X. XxXxxxxxx
Title: Vice President
Name: SIEMENS FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
Title: Vice President
Name: XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------
Xxxxxx Xxxxxx
Title: Assistant Vice President
Name: PROVIDENT BANK
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Title: Vice President
Name: FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
----------------------
Xxxx Xxxxxx
Title: Senior Vice President
Name: TRANSAMERICA BUSINESS CAPITAL
CORPORATION (AS SUCCESSOR TO
TRANSAMERICA BUSINESS CREDIT
CORPORATION)
By: /s/ Xxxx Xxx
----------------------
Xxxx Xxx
Title: Senior Vice President
Name: CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx X'Xxxx
----------------------
Xxxx X'Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
Title: Vice President
Name: LASALLE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Xxxxxxx Xxxxxxx
Title: Assistant Vice President
Name: DEBIS FINANCIAL SERVICES, INC.
By: /s/ G. Xxxxxxxxx Xxxx
----------------------
G. Xxxxxxxxx Xxxx
Title: Managing Director - Credit
