EXHIBIT 4.7
FOURTH AMENDMENT TO CREDIT AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
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This Fourth Amendment to Credit Agreement and Other Transaction
Documents (the "Agreement"), made as of the 12th day of October, 2000, 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 agent and as lender ("Lender") sometimes hereinafter referred to as
"Agent" or "Lender", as appropriate depending on responsibility and FRENCH
FRAGRANCES, 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:
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WHEREAS, pursuant to the terms and conditions of that certain Credit
Agreement dated May 13, 1997 between Borrower and Lender, as amended by a First
Amendment to Credit Agreement and Other Transaction Documents dated as of
December 31, 1997, as further amended by a Second Amendment to Credit Agreement
and Other Transaction Documents dated as of November 13, 1998 and as further
amended by a Third Amendment to Credit Agreement and Other Transaction Documents
dated as of May 17, 1999 (as amended, the "Credit Agreement"), Lender 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 availability
under the Revolving Credit Facility (as defined in the Credit Agreement) of
$15,000,000; and
WHEREAS, Lender is 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.
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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.
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Borrower hereby represents and warrants to Lender that:
(a) Borrower is duly organized, validly existing and in good standing
as a corporation in the state of its incorporation, and is in good standing and
is qualified to do business as a foreign corporation in all other jurisdictions
where it is required to be so qualified, except such jurisdictions, if any, in
which the failure to be so qualified will not have a material adverse effect on
the financial condition, business, assets, operations or properties of Borrower.
Borrower has all requisite power and authority to own and lease its assets and
properties and to conduct its business in the manner presently conducted by it.
(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.
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Section 3. Amendments to Credit Agreement.
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The Credit Agreement is hereby amended, effective as of the date
hereof, as follows:
Section 3.01. Amended Definitions.
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Section 1.01 of the Credit Agreement is hereby amended by deleting the
definitions "Revolving Credit Facility" and "Revolving Credit Note" and
replacing them with the following:
"Revolving Credit Facility" shall mean the Fifty Million Dollar
($50,000,000) (and for the period from October 13, 2000 until December 31, 2000,
the Sixty Five Million Dollar ($65,000,000)) revolving credit facility available
to the Borrower pursuant to the provisions of Article II hereof and subject to
the other terms and conditions of this Agreement.
"Revolving Credit Note" or "Revolving Credit Notes" shall mean the
secured revolving credit notes of Borrower issued to Lenders in the aggregate
principal amount not to exceed Sixty-Five Million Dollars ($65,000,000)) and
substantially in the form attached hereto as Exhibit D-1 Amended, which
promissory notes evidence the obligations of Borrower to repay Lenders the
Advances made by Lenders under the Revolving Credit Facility, which notes are
hereby incorporated herein by reference and made a part hereof, as such
Revolving Credit Notes may be amended, extended or renewed from time to time by
the execution and delivery of an Amendment Letter or other written instrument
executed and delivered by Lenders hereunder."
Section 3.02. Amendment to Section 2.02.
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Section 2.02 of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
"Section 2.02. Revolving Credit Notes.
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The Advances made by Lenders pursuant to Section 2.01 hereof shall be
evidenced by the Revolving Credit Notes issued by Borrower payable to the order
of Lenders in the original principal amount of Sixty-Five Million Dollars
($65,000,000).".
Section 3.03. Amendment to Section 2.03.
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Section 2.03 of the Credit Agreement is hereby amended by deleting
subsection (a) in its entirety and replacing it with the following:
"Section 2.03. The Revolving Credit Commitment.
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(a) The Revolving Credit Commitment shall be equal to the lesser
of:
(i) the Borrowing Base as in effect from time to time, or
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(ii) Sixty Five Million Dollars ($65,000,000) for the period
from October ____, 2000 until December 31, 2000 and Fifty Million Dollars
($50,000,000) for all other times."
Section 3.04. Amended Exhibit.
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Exhibit A attached hereto is intended to replace Exhibit D Amended to
the Credit Agreement and is hereby intended to read as Exhibit D-1 Amended.
Section 4. Security Documents.
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(a) Borrower and Lender each hereby confirm that all references to the
"Credit Agreement" or the "Agreement" in any of the Security Documents shall be
deemed to be references to the Credit Agreement as amended hereby; that the
obligations of Borrower under the Credit Agreement, as amended hereby, and fees
and expenses in connection therewith constitute additional indebtedness,
liabilities and obligations of Borrower to Lender, all of which are secured by
the Security Documents, and that all references to "indebtedness" and/or
"obligations" secured by such instruments shall be deemed amended to include all
obligations of Borrower in respect of the Credit Agreement as amended hereby.
(b) Borrower hereby ratifies and reaffirms its grant and conveyance to
Agent for the ratable benefit of the Lenders of a security interest in and lien
upon all collateral covered by any of the Security Documents.
(c) Borrower and Lender each hereby confirm that nothing contained
herein or done pursuant hereto shall limit or be construed to limit the security
interest or lien previously granted by Borrower to Agent for the ratable benefit
of the Lender under any of the Security Documents, or the priority thereof over
other liens, encumbrances and security interests. Except as amended hereby, the
Security Documents shall remain in full force and effect and Borrower hereby
ratifies and confirms the Security Documents in all other respects, including,
without limitation, the continuing grant of a lien on and interest in the
collateral covered thereby.
Section 5. Conditions Precedent to First Amendment.
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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
and Lender;
(b) The original $65,000,000 Revolving Credit Note (the "Note") shall
have been executed and delivered by Borrower to Lender;
(c) 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 and
the Note;
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(d) The fees and disbursements of Lender shall have been paid in full;
and
(e) All legal matters relating to this Agreement and the Note shall be
satisfactory to Agent and its counsel.
Section 6. Ratification.
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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 Notes, the Security Documents and all
other documents and instruments evidencing obligations of Borrower under or in
connection with the Credit Agreement, the Notes or the Security Documents, shall
be deemed to be amended to refer to the Credit Agreement, as amended by the
terms hereof.
Section 7. Expenses.
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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 8. Miscellaneous.
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Rhode Island 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 9. No Defenses.
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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 10. Facility Fee.
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In consideration of Lender's commitment to enter into this Agreement,
Borrower hereby agrees to pay to Lender a facility fee equal to Ten Thousand
Dollars ($10,000).
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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.
LENDER:
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
AGENT:
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
BORROWER:
FRENCH FRAGRANCES, INC.
By /s/ E. Xxxxx Xxxxxxx
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E. Xxxxx Xxxxxxx
Chairman, President and Chief
Executive officer
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