Exhibit 10.3
WAIVER AND AMENDMENT NO. 2 TO CREDIT AND GUARANTEE AGREEMENT
WAIVER AND AMENDMENT NO. 2 TO CREDIT AND GUARANTEE AGREEMENT ("this
Amendment"), dated as of March 28, 2002, among REMINGTON PRODUCTS COMPANY,
L.L.C., a Delaware limited liability company (the "Company") REMINGTON CONSUMER
PRODUCTS LIMITED, a company incorporated under the laws of England (the "UK
Borrower"), REMINGTON PRODUCTS GMBH, a company organized and existing under the
laws of Germany (the "German Borrower"), REMINGTON CONSUMER PRODUCTS (IRELAND)
LIMITED, a company incorporated under the laws of Ireland (the "Irish Borrower")
and REMINGTON PRODUCTS (CANADA) INC., a company incorporated under the laws of
Canada (the "Canadian Borrower"; together with the Company, the UK Borrower, the
German Borrower and the Irish Borrower, the "Borrowers"), the lending
institutions party hereto and Fleet Capital Corporation, as administrative agent
(the "Agent").
WHEREAS, the Borrowers, certain lenders, Fleet Securities, Inc., as sole
advisor, lead arranger and book manager, Congress Financial Corporation (New
England), as syndication agent and coarranger, and the Agent, entered into a
certain Credit and Guarantee Agreement, dated as of August 21, 2001, as amended
as of September 30, 2001 (such agreement being referred to herein as the "Credit
Agreement"), pursuant to which one or more of such lenders have agreed, subject
to certain terms and conditions, to make revolving advances to one or more of
the Borrowers and to issue or to cause the issuance of letters of credit for the
account of one or more of the Borrowers;
WHEREAS, the Borrowers have requested that the Required Lenders waive
certain provisions of the Credit Agreement and agree to amend certain provisions
of the Credit Agreement and the Required Lenders, subject to the terms and
conditions set forth herein, are willing to grant such request;
NOW, THEREFORE, the Company, on behalf of the Borrowers, and the Required
Lenders hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. WAIVERS TO THE CREDIT AGREEMENT.
2.1 The Required Lenders hereby waive compliance with Section 10.13
(Interest Expense Coverage Ratio) solely for the twelve fiscal month period
ending 12/31/01.
2.2 The Required Lenders hereby waive compliance with Section 10.14
(Leverage Ratio) solely for the four fiscal quarter period ending 12/31/01.
SECTION 3. AMENDMENTS TO THE CREDIT AGREEMENT.
3.1 Section 1 (Definitions) of the Credit Agreement is hereby amended by
adding the following new definitions to such Section in their appropriate
alphabetical order:
" "Tangible Net Worth": with respect to the Company and its Subsidiaries on
a consolidated basis as of any date, (i) the sum of capital stock, capital in
excess of par or stated value of shares of its capital stock, retained earnings
and any other account which, in accordance with GAAP constitutes stockholders'
equity, less (ii) treasury stock and any minority interest in subsidiaries, less
(iii) the amount of any write-up subsequent to the Closing Date in the value of
any asset above the cost or depreciated cost thereof and less (iv) all deferred
financing fees and all intangible assets, including, without limitation,
goodwill, which would be classified as such in accordance with GAAP.
"Total Liabilities": at any date, the aggregate amount of all liabilities
of the Company and its Subsidiaries on a consolidated basis (including tax and
other proper accruals) which would be classified as liabilities at such date,
computed and calculated in accordance with GAAP,
"Total Liabilities to Tangible Net Worth Ratio": as of any date, the ratio
of (a) Total Liabilities as of such date minus Senior Subordinated Indebtedness
to (b) Tangible Net Worth as of such date plus Senior Subordinated
Indebtedness."
3.2 Section 1 (Definitions) of the Credit Agreement is hereby amended by
deleting the definitions of "Committed Seasonal Overadvance Period", "Domestic
Seasonal Overadvance Amount", "Domestic Seasonal Overadvance Usage", "Interest
Expense", "Interest Expense Coverage Ratio", "Leverage Ratio", "Seasonal
Overadvances", "UK Seasonal Overadvance Amount" and "UK Seasonal Overadvance
Usage" from such Section.
3.3 The definition of "Applicable Margin" contained in Section 1
(Definitions) of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing it with the following new definition:
"Applicable Margin": for each Type of Loan, the rate per annum set forth
under the relevant column heading below, based upon the Fixed Charge Coverage
Ratio in effect from time to time as described below:
2
Eurocurrency Loans and Sterling ABR
LIBOR Loans Loans
Fixed Charge Coverage Ratio of less than 3.25% 2.00%
1.20 to 1.00
Fixed Charge Coverage Ratio of greater than 2.75% 1.50%
or equal to 1.20 to 1.00 and less than 1.40
to 1.00
Fixed Charge Coverage Ratio of greater than 2.50% 1.25%
or equal to 1.40 to 1.00 and less than 1.60
to 1.00
Fixed Charge Coverage Ratio of greater than 2.00% .75%
or equal to 1.60 to 1.00
Notwithstanding the foregoing, if the Company shall fail to timely deliver the
statements and certificates required under subsections 9.4(a), (b) and (c) for
any period the Applicable Margin shall be the highest provided for herein until
such time as the appropriate statements and certificates are delivered. Any
change in the Applicable Margin shall become effective on the date which is
three Business Days following the date of delivery by the Company of its
financial statements and related certificates for the relevant fiscal period
ending each June and December in accordance with the provisions of subsection
9.4(a) or (b), as the case may be, and subsection 9.4(c). The Applicable Margin
shall initially be based upon the financial statements of the Company delivered
to the Agent and the Lenders for the fiscal quarter ended December 31, 2001.
3.4 The definition of "Borrowing Base" contained in Section 1 (Definitions)
of the Credit Agreement is hereby amended by (i) adding the word "and" after the
end of clause (a) of such definition and before the beginning of clause (b) in
such definition and (ii) deleting the word "plus" and the existing clause (c) of
such definition.
3.5 The definition of "EBITDA" contained in Section 1 (Definitions) of the
Credit Agreement is hereby amended by (i) deleting the comma at the end of
clause (i) of the last sentence of such definition and substituting the word
"and" therefor and (ii) deleting in its entirety clause (iii) of the last
sentence of such definition.
3.6 The definition of "Eligible In-Transit Inventory" contained in Section
1 (Definitions) of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing it with the following new definition:
"Eligible In-Transit Inventory": Inventory in transit to any Borrower from
any country other than the jurisdiction of such Borrower's organization or
incorporation which is fully insured (subject to customary deductibles) by an
insurance company reasonably satisfactory to the Agent against all customary
risk of loss or damage, provided that if by January 31, 2002 the German
Borrower's procedures for purchasing Inventory and obtaining title thereto are
not changed in a manner reasonably satisfactory to the Agent so that the German
Borrower purchases its Inventory directly from the Company and obtains title
thereto directly from the Company and other matters reasonably related thereto
are addressed, then no in-transit Inventory of the German Borrower shall
constitute Eligible In-Transit Inventory of the German Borrower from and after
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February 1, 2002 until such time as the Agent is satisfied with the German
Borrower's procedures for purchasing Inventory and obtaining title thereto and
provided, further, that if any such in-transit Inventory of the Company has at
any time during the previous twelve month period (the first such twelve month
period to commence on the Closing Date) been shipped without the use of a
negotiable document of title for such Inventory, then for a sixty (60)
consecutive day period to be selected by the Company that falls between each
November 1 and March 31 no in-transit Inventory of the Company shall in any
event constitute Eligible In-Transit Inventory.
3.7 The definition of "Fixed Charge Coverage Ratio" contained in Section 1
(Definitions) of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing it with the following new definition:
"Fixed Charge Coverage Ratio": as of any date, the ratio of (a) EBITDA for
the period of twelve consecutive fiscal months ended on (or most recently
before) such date minus the sum of (i) all Capital Expenditures paid in cash
during the period of twelve consecutive fiscal months ended on (or most recently
before) such date, (ii) any cash dividends paid or other distributions made by
the Company or any of its Subsidiaries (other than by a Subsidiary to the
Company) during the period of twelve consecutive fiscal months ended on (or most
recently before) such date and (iii) all Federal, state, local and foreign
income taxes (including, in any event, any dividends or distributions paid in
accordance with the provisions of subsection 10.7(c) to the extent not included
in clause (ii) above) paid in cash by the Company or any of its Subsidiaries
during the period of twelve consecutive fiscal months ended on (or most recently
before) such date, to (b) the sum of (i) Cash Interest Expense for the period of
twelve consecutive fiscal months ended on (or most recently before) such date
and (ii) the aggregate amount of scheduled payments of principal on all
Indebtedness of the Company and its Subsidiaries made during the period of
twelve consecutive fiscal months ended on (or most recently before) such date.
3.8 The definition of "Net Income" contained in Section 1 (Definitions) of
the Credit Agreement is hereby amended by deleting such definition in its
entirety and replacing it with the following new definition:
"Net Income": for any period, the aggregate net income (or net deficit) of
the Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided, however, that the term "Net Income"
shall exclude any extraordinary, unusual or nonrecurring gains and losses or any
gains or losses from the sale or disposition of assets other than inventory sold
in the ordinary course of business, all computed and calculated in accordance
with GAAP.
3.9 Section 2.5 (Use of Proceeds of Domestic Revolving Credit Loans) of the
Credit Agreement is hereby amended by deleting the parenthetical "(but subject
to clause (e) of the definition of Seasonal Overadvances)" from such Section.
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3.10 Section 5.6 (Use of Proceeds of UK Revolving Credit Loans) of the
Credit Agreement is hereby amended by deleting the phrase ", subject to clause
(e) of the definition of Seasonal Overadvances," from such Section.
3.11 Section 6.5 (Interest Rates and Payment Dates for Loans) of the Credit
Agreement is hereby amended by deleting the text of clause (d) thereof in its
entirety and replacing it with "Intentionally Omitted".
3.12 Section 9.4 (Financial Statements, Reports, etc.) of the Credit
Agreement is hereby amended by (i) adding the phrase ",except for the
certificate to be delivered under clause (o) below," before the words "each
Lender" in the lead-in to such Section, (ii) deleting "10.14" in clause (c) of
such Section and replacing it with "10.14B" and deleting "Leverage Ratio" in
clause (c) of such Section and replacing it with "Fixed Charge Coverage Ratio",
(iii) deleting subsections (x) and (y) of clause (g) of such Section in their
entirety and replacing such subsections with the following:
(x) "reporting date" shall mean each of (1) the last day of
each fiscal month and, in addition, the fifteenth day of such
fiscal month and (2) any other time when the Agent notifies
the Company that it reasonably believes that the then-existing
Borrowing Base of any Borrower is materially inaccurate; and
(y) "delivery date" shall mean fifteen days after the
corresponding "reporting date" (or, to the extent that the
relevant Borrowing Base Certificate is being delivered
pursuant to clause (x)(2) above, ten days after the date upon
which the notice described therein is delivered);
, (iv) deleting the word "and" at the end of clause (m) of such Section,
(v) deleting the term "Interest Expense Coverage Ratio" where used in clause (n)
of such Section and substituting therefor the term "Fixed Charge Coverage
Ratio", (vi) substituting the period at the end of clause (n) of such Section
with "; and" and (vii) adding a new clause (o) to such Section which reads as
follows:
(o) by no later than 11:30 a.m. Eastern time on each Business
Day, a daily borrowing base certificate, in substantially the
form attached hereto as Exhibit K, for each of the Company and
the UK Borrower for the immediately preceding Business Day,
duly executed by each such Borrower; provided that such daily
borrowing base certificate shall only be required to be
delivered on each Business Day during the period commencing
July 1, 2002 and ending on September 30, 2002 and,
additionally if requested by the Agent in its sole discretion,
at such times as the unused amount available under the
Borrowing Base of the Company and the other Borrowers is equal
to or less than $10,000,000 (as calculated in accordance with
Section 1.2(e) hereof with respect to the Foreign Borrowers)
until the average unused amount available under the Borrowing
Base of the Company and the other Borrowers is greater than
$10,000,000 (as calculated in accordance with Section 1.2(e)
hereof with respect to the Foreign Borrowers) for each of the
immediately preceding two months.
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3.13 Section 9.7 (Maintaining Records; Access to Properties and
Inspections) of the Credit Agreement is hereby amended by deleting clause (b)
thereto in its entirety and replacing it with the following:
"(b) The Company will, and will cause each of the other Borrowers to,
permit the Agent (which may be accompanied by any Lender and/or its
representatives) to conduct (upon reasonable notice to a Responsible Officer of
the Company and, except as otherwise expressly provided below, at the sole
expense of the Company) an audit of the accounts receivable and inventories of
the Borrowers and of the Borrowing Base of each Borrower, up to six times during
each one year period (or in February, June and October of each year in the event
that the average unused amount available under the Borrowing Base of the Company
and each of the other Borrowers for each of the immediately preceding two fiscal
months is greater than $10,000,000 (as calculated in accordance with Section
1.2(e) hereof with respect to the Foreign Borrowers)) with the Company's
responsibility for any audits in excess of three during any one year period
being limited to $25,000 per such audit plus reasonable out-of-pocket costs and
expenses of the Agent in connection therewith; provided, however, that the
foregoing limitations shall not apply in the event that a Default or Event of
Default shall have occurred and be continuing; and provided further that so long
as (x) no Default or Event of Default shall have occurred and be continuing
(including, without limitation, under Section 10.14) and (y) the Fixed Charge
Coverage Ratio at the end of the most recently ended fiscal month of the Company
for the twelve most recent consecutive fiscal months shall be equal to or
greater than 1.20 to 1.00, the Company shall not be responsible for the expenses
for any audit referred to above conducted while such clauses (x) and (y) are
true in excess of $25,000 per audit plus reasonable out-of pocket costs and
expenses of the Agent in connection therewith and the number of any such audits
conducted while such clauses (x) and (y) are true shall not exceed two during
any one year period. The Company will, and will cause each of the other
Borrowers to, permit Hilco Appraisal Services, LLC or another third party
appraiser satisfactory to the Agent to conduct (upon reasonable notice to a
Responsible Officer of the Company and at the sole expense of the Company) (i)
an appraisal of the inventories of the Borrowers, up to one time in each fiscal
year and (ii) a "desk top review" or limited scope appraisal of the inventories
of the Borrowers, up to one time in each fiscal year; provided, however, that
such limitations shall not apply in the event that a Default or Event of Default
shall have occurred and be continuing; and provided further that so long as (x)
no Default or Event of Default shall have occurred and be continuing (including,
without limitation, under Section 10.14) and (y) the Fixed Charge Coverage Ratio
at the end of the most recently ended fiscal month of the Company for the twelve
most recent consecutive fiscal months shall be equal to or greater than 1.20 to
1.00, the Company shall not be responsible for the expenses for any inventory
appraisals referred to in this sentence conducted while such clauses (x) and (y)
are true in excess of $20,000 in any fiscal year and the number of any such
inventory appraisals conducted while such clauses (x) and (y) are true shall not
exceed one in any fiscal year."
3.14 Section 10.7 (Dividends and Distributions) of the Credit Agreement is
hereby amended by deleting the phrase "defined term Seasonal Overadvances and
the" from clause (b) of such Section.
6
3.15 Section 10.10 (Limitations on Certain Debt Payments and Interest
Payments) of the Credit Agreement is hereby amended by deleting clause (b) of
such Section in its entirety and replacing it with the following:
"(b) make any payment on account of the Senior Subordinated Indebtedness
(other than of interest as permitted by the Indenture with respect thereto);
provided that the Company may prepay, repurchase or redeem in any fiscal year up
to $10,000,000 (not to exceed $40,000,000 in the aggregate during the term of
this Agreement) of Senior Subordinated Indebtedness so long as (i) no Default or
Event of Default shall have occurred and be continuing or would result therefrom
and (ii) for at least sixty (60) consecutive days prior to any such prepayment,
repurchase or redemption, there shall be no Loans outstanding for any Borrower,
and, provided, further, that the Company may prepay, repurchase or redeem an
additional $10,000,000 in the aggregate of Senior Subordinated Indebtedness so
long as subsections (i) and (iii) of the immediately preceding proviso of this
Section 10.10 are satisfied and for each day during the period of 30 consecutive
days immediately prior to the date of any such prepayment, repurchase or
redemption, (1) the aggregate amount of the Borrowing Base of the Company plus
the Dollar equivalent of the aggregate Borrowing Bases of the other Borrowers
less (2) the aggregate of the Domestic Revolving Credit Exposure plus the Dollar
equivalent of the Foreign Revolving Credit Exposure shall be no less than
$50,000,000."
3.16 Section 10.12 (Capital Expenditures) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the
following:
"10.12 Capital Expenditures. Make or permit to be made Capital
Expenditures, including Capital Lease Obligations, in each of the periods set
forth below to exceed the following amounts:
Period Maximum Amount
------ --------------
Three fiscal month period ending March 31, 2002 $3,000,000
Six fiscal month period ending June 30, 2002 $5,000,000
Nine fiscal month period ending September 30, 2002 $6,000,000
Twelve fiscal month period ending December 31, 2002 $6,000,000
and each four fiscal quarter period thereafter
Capital Expenditures made with insurance proceeds of the Company and its
Subsidiaries shall not be included in determining compliance with this Section
10.12 if such reinvestment of insurance proceeds (including reinvestment in the
form of restoration or replacement of damaged property) is not considered a
"Prepayment Event" as contemplated in the definition of such term. The exclusion
from the Capital Expenditures limitations set forth in the preceding sentence
shall only be permitted, in each case, if and to the extent the Capital
Expenditures referred to in such sentence are made in the period commencing on
the first date the Company or the relevant Subsidiary receives any cash
insurance proceeds from the relevant casualty giving rise to such cash insurance
7
proceeds and ending on the date 360 days thereafter and may not be carried
forward after the end of such period. Notwithstanding the foregoing, with
respect to each fiscal year after the fiscal year ending December 31, 2002 (but
only so long as (x) no Default or Event of Default shall have occurred and be
continuing (including, without limitation, under Section 10.14) and (y) the
Fixed Charge Coverage Ratio at the end of the most recently ended fiscal month
of the Company for the twelve most recent consecutive fiscal months shall be
equal to or greater than 1.20 to 1.00), the maximum aggregate amount of Capital
Expenditures, including Capital Lease Obligations, in such fiscal year shall not
exceed $8,000,000; provided, however, that if the $8,000,000 limitation in this
sentence is in effect any unused amount of Capital Expenditures permitted to be
made during a fiscal year (commencing with any fiscal year after the fiscal year
ending December 31, 2002) may be carried over to the next fiscal year only (but
not to any subsequent year thereafter) and shall be deemed to be the first
Capital Expenditures made during such next fiscal year (provided that in any
event the total amount of Capital Expenditures for such next fiscal year shall
not exceed $12,000,000 in the aggregate); and provided, further, that,
notwithstanding the $8,000,000 limitation(but only if the $8,000,000 limitation
is otherwise in effect), the Company and its Subsidiaries may during the three
year period immediately following December 31, 2002 make up to $5,000,000 in the
aggregate of Capital Expenditures relating solely to an enterprise resource
planning system; and provided, further, that the above $8,000,000 limitation, to
the extent permitted in the following sentence, shall not apply to Capital
Expenditures (i) in respect of the reinvestment of sales proceeds, insurance
proceeds and condemnation proceeds received by the Company and its Subsidiaries
in connection with the sale, transfer or other disposition of the Company's
business units, assets or properties, if such reinvestment (including, in the
case of insurance proceeds, reinvestment in the form of restoration or
replacement of damaged property) is not considered a "Prepayment Event" as
contemplated in the definition of such term, (ii) to the extent paid with the
proceeds of an issuance by the Company of its Capital Stock not required to be
applied as a prepayment of the Loans pursuant to Section 6.2(b), (iii) in
respect of the reinvestment of the excess, if any, of (x) the Net Cash Proceeds
resulting from the sale, transfer or other disposition of the Bridgeport
Property over (y) any costs and expenses incurred by the Company in connection
with any environmental remediation of the Bridgeport Property and (iv) in
respect of the change of location of the Company's administration facility and
distribution center; provided that such Capital Expenditures under this clause
(iv) do not exceed $1,000,000 in the aggregate over the term of this Agreement.
The exclusion from the Capital Expenditures limitations set forth in any of
clauses (i) through (iv) of the preceding sentence shall only be permitted, in
each case, if and to the extent the Capital Expenditures referred to in such
clause are made in the period commencing on the first date the Company or the
relevant Subsidiary receives any cash proceeds from the relevant event referred
to in such clause giving rise to such cash proceeds (or the date the Company
changes the location of its administration facility or distribution center, as
the case may be, with respect to clause (iv)) and ending on the date 360 days
thereafter and may not be carried forward after the end of such period."
3.17 Section 10.13 (Interest Expense Coverage Ratio) of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
replacing it with the following new Section:
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"10.13 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio
at the end of each fiscal month for the twelve most recent consecutive fiscal
months ending on December 31, 2002 and each fiscal month thereafter to be less
than 1.10 to 1.00."
3.18 Section 10.14 (Leverage Ratio) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the
following new Section:
"10.14 EBITDA. Permit EBITDA through the end of any period set forth below
to be less (which in the case of any negative amount shall mean a greater
negative amount) than the respective amounts set forth below opposite such
period:
For the period beginning on
January 1, 2002 and ending on: Minimum EBITDA
----------------------------- --------------
January 31, 2002 $(2,800,000)
February 28, 2002 $(3,500,000)
March 31, 2002 $(3,500,000)
April 30, 2002 $(3,000,000)
May 31, 2002 $ 750,000
June 30, 2002 $ 750,000
July 31, 2002 $ 750,000
August 31, 2002 $ 1,500,000
September 30, 2002 $ 8,000,000
October 31, 2002 $26,000,000
November 30, 2002 $38,000,000"
3.19 A new Section 10.14A is hereby added to the Credit Agreement as
follows:
"10.14A Total Liabilities to Tangible Net Worth Ratio. Permit the Total
Liabilities to Tangible Net Worth Ratio at the end of each fiscal month set
forth below to be greater than the respective ratios set forth opposite such
period:
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Month ending on or about: Ratio
------------------------ -----
January 31 of any fiscal year 1.30:1.00
February 28 of any fiscal year 1.40:1.00
March 31 of any fiscal year 1.40:1.00
April 30 of any fiscal year 1.50:1.00
May 31 of any fiscal year 1.60:1.00
June 30 of any fiscal year 1.60:1.00
July 31 of any fiscal year 1.90:1.00
August 31 of any fiscal year 2.20:1.00
September 30 of any fiscal year 2.30:1.00
October 31 of any fiscal year 2.00:1.00
November 30 of any fiscal year 1.60:1.00
December 31 of any fiscal year 1.30:1.00"
3.20 A new Section 10.14B is hereby added to the Credit Agreement as
follows:
"10.14B Minimum Excess Availability. Unless the Fixed Charge Coverage Ratio
is greater than 1.20:1.00 for the twelve most recent consecutive fiscal months
ending on December 31, 2002 or any fiscal month thereafter, permit the average
unused amount available under the Borrowing Base of the Company and the other
Borrowers to be less than the respective amounts (as calculated in accordance
with Section 1.2(e) hereof with respect to the Foreign Borrowers) set forth
below for the periods indicated:
Period Amount
------ ------
February, March and April of any fiscal year $7,000,000
May, June, July, August and September of any fiscal year $5,000,000
October, November and December of
any fiscal year and January of the next fiscal year $9,000,000"
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3.21 A new Section 10.14C is hereby added to the Credit Agreement as
follows:
"10.14C Inventory Turnover for UK Borrower. Permit the Inventory Turnover
Days (as defined below) at the end of any fiscal month to be greater than the
number of days set forth below opposite such fiscal month.
Fiscal Month Ending in Inventory Turnover Days
---------------------- -----------------------
January 190
February 190
March 190
April 190
May 190
June 181
July 181
August 181
September 171
October 171
November 162
December 152
For purposes of this Section 10.14C, "Inventory Turnover Days" means at the
end of any fiscal month, the product of (A) the quotient of (i) the average of
the amount of inventory of the UK Borrower (as determined on the books and
records of the UK Borrower) on the last day of each of the thirteen most recent
consecutive fiscal months divided by (ii) the cost of goods sold (as determined
in accordance with generally accepted accounting principles of the United
Kingdom) of the UK Borrower during such twelve most recent consecutive fiscal
months times (B) 365."
3.22 Section 14.1 (Amendments and Waivers) of the Credit Agreement is
hereby amended by deleting the phrase "or permit the Domestic Seasonal
Overadvance Amount and the UK Seasonal Overadvance Amount to exceed $10,000,000
in the aggregate at any time, in each case" from clause (vii) of such Section.
3.23 Notwithstanding anything in the Credit Agreement to the contrary, the
failure of the Company to comply or cause compliance with Section 10.14C shall
not constitute an Event of Default unless such non-compliance is declared by the
Agent to constitute an Event of Default.
3.24 A new Exhibit K is added to the Credit Agreement in the form attached
hereto as Exhibit 1.
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SECTION 4. EFFECTIVENESS. This Amendment shall become effective when
counterparts hereof have been duly executed and delivered to the Agent by the
Company, on behalf of the Borrowers, and the Required Lenders and upon the
fulfillment of the following conditions:
4.1 Receipt by the Agent (for the ratable benefit of the Lenders that
execute this Amendment) of payment in full in cash of a restructuring fee in the
amount of $ 137,500 in the aggregate and such other fees and expenses as have
been separately agreed to between the Company and the Agent.
4.2 Receipt by the Agent of payment in full in cash of all fees, costs and
expenses incurred by the Agent (including, without limitation, legal fees and
field expense charges) in connection with this Amendment.
4.3 Such other approvals, opinions or documents as the Agent may reasonably
request.
SECTION 5. COUNTERPARTS. This Amendment may be executed in counterparts,
each of which shall be an original, and all of which, taken together, shall
constitute a single instrument. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6. REFERENCES TO CREDIT AGREEMENT. From and after the effectiveness
of this Amendment and the amendment contemplated hereby, all references in the
Credit Agreement to "this Agreement", "hereof", "herein", and similar terms
shall mean and refer to the Credit Agreement, as the provisions thereof have
been amended by this Amendment, and all references in other documents to the
Credit Agreement shall mean such agreement as the provisions thereof have been
amended by this Amendment.
SECTION 7. RATIFICATION AND CONFIRMATION. The Credit Agreement is hereby
ratified and confirmed and, except as herein agreed, remains in full force and
effect. The Company, on behalf of the Borrowers, represents and warrants that
after giving effect to this Amendment (i) all representations and warranties
contained in the Loan Documents are true and correct in all material respects
with the same effect as though such representations and warranties had been made
on and as of the date hereof (except to the extent that such representations or
warranties expressly related to a specified date) and (ii) after giving effect
to the waivers contained in Section 2.1 and Section 2.2 hereof, there exists no
Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
REMINGTON PRODUCTS COMPANY, L.L.C.
By:
---------------------------------------
Name:
Title:
REMINGTON CONSUMER PRODUCTS LIMITED
By:
---------------------------------------
Name:
Title:
REMINGTON PRODUCTS GMBH
By:
---------------------------------------
Name:
Title:
REMINGTON CONSUMER PRODUCTS
(IRELAND) LIMITED
By:
---------------------------------------
Name:
Title:
REMINGTON PRODUCTS (CANADA)INC.
By:
---------------------------------------
Name:
Title:
13
FLEET CAPITAL CORPORATION, as
Agent and as a Lender
By:
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
CONGRESS FINANCIAL
CORPORATION (NEW ENGLAND), as a
Lender
By:
---------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC., as a Lender
By:
---------------------------------------
Name
Title:
CITIZENS BUSINESS CREDIT CO.,
A DIVISION OF CITIZENS LEASING
CORP., as a Lender
By:
---------------------------------------
Name
Title:
IBJ WHITEHALL BUSINESS
CREDIT CORPORATION, as a Lender
14
By:
---------------------------------------
Name:
Title:
THE PROVIDENT BANK, as a Lender
By:
---------------------------------------
Name:
Title:
PNC, NATIONAL ASSOCIATION, as a
Lender
By:
---------------------------------------
Name
Title:
15
EXHIBIT 1
Form of Daily Borrowing Base Certificate
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16
