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EXHIBIT 10.23(c)
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of March 25, 1996 among EKCO GROUP, INC., a
Delaware Corporation ("Group"), EKCO HOUSEWARES, INC., a Delaware corporation
and a wholly owned subsidiary of Group ("Housewares"), and FREM CORPORATION, a
Massachusetts corporation and a wholly owned subsidiary of Housewares ("Frem"
and collectively with Group and Housewares, the "Borrowers"); FLEET BANK OF
MASSACHUSETTS, N.A., a national banking association as agent (the "Agent") and
the Lenders set forth below under a Credit Agreement dated as of April 11, 1995
(the "Credit Agreement").
WHEREAS, Group proposes to issue $125,000,000 in principal amount of
Senior Notes (as defined below) on or about the date of this Second Amendment;
WHEREAS, Group will use approximately $66,600,000 of the proceeds of
the Senior Notes to repurchase the 12.70% Notes and approximately $18,800,000 of
such proceeds to repurchase the 1818 Notes;
WHEREAS, the Borrowers and the Lenders have agreed to certain
modifications of the Credit Agreement in connection with an issuance of the
Senior Notes;
NOW, THEREFORE, the parties agree as follows:
1. Section 1.1. Definitions shall be amended as follows:
(a) Each of the following definitions shall replace the
pre-existing definitions in their entirety:
"Applicable Margin - LIBOR Rate" and "Applicable Margin - Base
Rate" shall mean the percentage set forth below opposite the Consolidated Total
Leverage Ratio in effect as of the last day of the immediately preceding fiscal
quarter:
Applicable Margin -
Consolidated Total Leverage Ratio Base Rate LIBOR Rate
--------------------------------- --------- ----------
Greater than 2.25:1.0 0 1.50%
Equal to or less than
2.25:1.0 0 1.25%
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"Borrowers" or "Borrower" shall mean Group. Effective the date
of this Second Amendment, Housewares and Frem shall no longer be Borrowers,
although they shall remain Guarantors pursuant to Section 10.
"Guarantors" shall mean individually each of Cleaning, Ekco
Distribution, Frem, Housewares, Xxxxxxx, Manufacturing, Via, Woodstream,
Xxxxxx-Xxxxxx and any other Person that shall become a guarantor of any Lender
Obligations, and collectively all of them; provided, however, that for the
purposes of Article 10 of this Agreement, the term "Guarantor" shall be limited
to Frem and Housewares.
"Interest Period" shall mean with respect to any LIBOR Rate
Advance, the period commencing on the date of such LIBOR Rate Advance and ending
one, two, three or six months thereafter, as the Borrower may request as
provided in Section 2.2 or 2.3(a) hereof; provided that:
(i) any Interest Period (other than an Interest
Period determined pursuant to clause (ii) below) that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business
Day;
(ii) any Interest Period that would otherwise end
after the Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date; and
(iii) notwithstanding clause (ii) above, no
Interest Period shall have a duration of less than 30 days, and if any
Interest Period applicable to LIBOR Rate Advances would be for a shorter period,
such Interest Period shall not be available hereunder.
"Maximum Revolving Credit Amount" shall mean $75,000,000.
"Obligor" shall mean any Person that is a Borrower under this
Agreement or a Guarantor of any Lender Obligations.
"Pledge Agreements" shall mean each of the pledge agreements
now or hereafter executed by any Person in connection with this Agreement, as
the same may be amended, modified or supplemented from time to time.
"Revolving Credit Facility" shall mean the secured revolving
credit facility in favor of Group.
(b) The following definitions shall be deleted:
Frem Revolving Credit, Housewares Revolving Credit, Maximum
Frem Revolving Credit Amount, Maximum Group Revolving Credit Amount and Maximum
Housewares' Revolving Credit Amount.
(c) The following definitions shall be added:
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"Ekco Distribution" shall mean Ekco Distribution of Illinois,
Inc., a Delaware corporation, and its successors and assigns.
"Manufacturing" shall mean Ekco Manufacturing of Ohio, Inc., a
Delaware corporation, and its successors and assigns.
"Senior Notes" shall mean the senior unsecured notes due 2006
in the principal amount of $125,000,000 issued by Group pursuant to an Indenture
among Group, the guarantors named therein and Fleet National Bank of
Connecticut, N.A. as Trustee (the "Indenture") on or about the date of this
Second Amendment."
(d) The definition of "Mortgages" shall be amended by the
addition of the following:
"Mortgages shall also include (vii) the Mortgage and Security
Agreement executed by Housewares with respect to the real property in Chicago,
Illinois, and (viii) the Open-End Mortgage and Security Agreement executed by
Manufacturing with respect to the real property in Massillon, Ohio."
2. Article 2. The Credits. The introduction shall be amended in
its entirety to read as follows:
"Subject to the terms and conditions hereof, and in reliance on the
representations and warranties contained herein, each of the Lenders hereby
establish as a secured Revolving Credit Facility in favor of Group in the
respective principal amounts of each Lender's Revolving Credit Commitment. The
aggregate principal amount of the Lenders' Revolving Credit Commitments is
$75,000,000. All references hereinafter made to Borrowers or Borrower shall mean
Group."
3. Section 2.3. Interest; Duration of Interest Periods.
Subsection (b) shall be amended in its entirety to read as follows:
"(b) With respect to Base Rate Advances, interest shall be payable in
arrears on the last day of each calendar month, commencing April 30, 1995
through February 29, 1996 and on the last day of each calendar quarter
commencing March 31, 1996 and continuing until all amounts of principal which
are Base Rate Advances shall have been fully paid. With respect to LIBOR Rate
Advances, interest shall be payable in arrears on the last day of the applicable
Interest Period and, if such Interest Period is more than three months, interest
shall be paid in three month intervals from the first day of such Interest
Period and on the last day of such Interest period, for interest accrued to each
such date."
4. Section 5.27. 12.70% Notes is amended in its entirety to read
as follows:
"12.70% Notes and 1818 Notes. As of the effective date of this Second
Amendment, Group has repurchased and retired the 12.70% Notes and the 1818
Notes.
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5. Section 6.1. Quarterly Financial Statements. Clause (ii) is
amended in its entirety to read as follows: "deleted."
6. Section 6.2. Annual Financial Statements. Clause (iii) is
amended in its entirety to read as follows: "deleted." Clause (vii) is amended
in its entirety to read as follows:
"the compliance certificate required by Section 4.7(a) of the Indenture
governing the Senior Notes; provided, however that the Borrower may defer
delivery of such certificate until 120 days after the end of its fiscal year,
and such other information with respect to the Senior Notes as the Agent may
reasonably request."
7. Section 7.1. Minimum Consolidated EBITDA is restated in its
entirety to read as follows:
"The Consolidated EBITDA of Group and its Subsidiaries shall not be
less than the amount set forth below as measured at the end of each fiscal
quarter during the periods indicated, on the basis of the fiscal quarter ending
on such date and the three immediately preceding fiscal quarters:
Period Consolidated EBITDA (Group)
------ ---------------------------
Fiscal Year End 1995 $43,000,000
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 40,000,000
Fiscal Year End 1996 through Third Quarter
Fiscal Year 1997 45,000,000
Fiscal Year End 1997 and thereafter 50,000,000"
8. Section 7.2. Ratio of Consolidated EBITA to Consolidated
Interest Expense is restated in its entirety to read as follows:
"The ratio of Group's Consolidated EBITA to Consolidated Interest
Expense shall not be less than the ratios set for below as measured at the end
of each fiscal quarter on the basis of the fiscal quarter ending on such date
and the three immediately preceding fiscal quarters.
Period Ratio
------ -----
Fiscal Year End 1995 2:45:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 2:25:1.0
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Period Ratio
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Fiscal Year End 1996 and thereafter 2:75:1.0"
9. Section 7.3. Consolidated Fixed Charge Coverage Ratio is
restated in its entirety to read as follows:
"The ratio of Group's Consolidated Cash Flow to Consolidated Fixed
Charges shall not be less than the ratios set forth below as measured at the end
of each fiscal quarter during the periods indicated, on the basis of the fiscal
quarter ending on such date and the three immediately preceding fiscal quarters:
Period Ratio
------ -----
Fiscal Year End 1995 1:40:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 1:40:1.0
Fiscal Year End 1996 through
Third Quarter Fiscal Year 1997 1:75:1.0
Fiscal Year End 1997 and thereafter 2:00:1.0"
10. Section 7.4. Ratio of Consolidated Senior Funded Indebtedness
to Consolidated EBITDA is restated to read as follows:
"The ratio of Group's Consolidated Senior Funded Indebtedness to
Consolidated EBITDA shall not exceed the ratios set forth below as measured at
the end of each fiscal quarter during the periods indicated, on the basis of the
fiscal quarter ending on such date and the three immediately preceding fiscal
quarters:
Period Ratio
------ -----
Fiscal Year End 1995 2.45:1.0
First Quarter Fiscal Year 1996 through
Third Quarter Fiscal Year 1996 3.20:1.0
Fiscal Year End 1996 through
Third Quarter Fiscal Year 1997 2.90:1.0
Fiscal Year End 1997 and thereafter 2.50:1.0"
11. Section 7.5. Current Ratio is amended in its entirety to read
as follows: "deleted."
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12. Section 7.6. Consolidated Tangible Net Worth is amended in
its entirety to read as follows: "deleted."
13. Section 8.10. Additional Mortgages is amended by the addition
of the following:
"(c) In connection with the execution of this Second Amendment,
Housewares has executed and delivered a mortgage in favor of the Agent with
respect to property in Chicago, Illinois and Manufacturing has executed and
delivered a mortgage in favor of the Agent with respect to property in
Massillon, Ohio. The Agent has not currently required a title insurance policy
or other due diligence with respect to such mortgages. Within 90 days of a
request by Agent, Borrower agrees to provide Agent with (i) a title insurance
policy relating to such mortgage in such amount and such form as the Agent may
reasonably request, (ii) such opinions of counsel relating to such mortgages as
the Agent may reasonably request, including, without limitation, an opinion as
to enforceability and zoning; and (iii) such other matters of due diligence as
the Agent may reasonably request."
14. Section 8.8. Use of Proceeds is amended in its entirety to
read as follows:
"Group will use the proceeds of the Revolving Credit Facility (a) to
pay off all outstanding Advances made to Housewares or Frem under this Credit
Agreement prior to the effective date of this Second Amendment; and (b) for
general corporate purposes including, without limitation, working capital for
itself and its Subsidiaries. Group will not use any of the proceeds to purchase
or carry "margin stock" (as defined in Regulation U)."
15. Section 8.11. Additional Housewares Covenants is amended in
its entirety to read as follows: "deleted."
16. Section 9.1. Restrictions on Borrowed Funds Indebtedness is
amended by replacing subsection (d) in its entirety by the following:
"(d) Borrowed Funds Indebtedness of Group arising from the Senior
Notes, or from any refinancing or replacement of the Senior Notes; provided,
however, that (i) the aggregate principal amount of such Indebtedness shall not
exceed the then outstanding principal balance of the Senior Notes; (ii) the
periodic installments of interest or fees under such Indebtedness shall not
exceed the periodic installments of interest or fees required under the Senior
Notes; (iii) the final maturity of such Indebtedness shall not be earlier than
the final maturity of the Senior Notes; and (iv) the Average Life of such
Indebtedness shall not be less than the Average Life of the Senior Notes."
17. Section 9.5. Assumptions, Guarantees, Etc., subsection (iv)
is amended in its entirety as follows:
"Guarantees by Subsidiaries of the Senior Notes and any Indebtedness
permitted under Section 9.1(d) as refinancing or replacement of the Senior
Notes."
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18. Section 9.6. Mergers and Acquisitions is amended as follows:
Subsection (a) is amended by the addition of the following:
"and further provided, that no individual acquisition shall involve an
expenditure in excess of $25,000,000 and the aggregate of all expenditures for
acquisitions during the three year period ending Fiscal Year End 1998 shall not
exceed $50,000,000. (For purposes of determining the amount of such
expenditures, the fair market value of any securities issued, and the principal
amount of any Indebtedness assumed or guaranteed, by the Borrower or any
Subsidiary shall be considered expenditures.)"
Subsection (b) is amended to read as follows: "deleted."
19. Section 9.13. Amendments to Certain Agreements shall be
amended in its entirety to read as follows:
"Neither the Borrower nor any of its subsidiaries shall agree to any
amendment to the terms and provisions of the Senior Notes relating to an
increase in fees or interest rates thereunder, any increase in principal or
interest payment amounts or total principal amounts thereunder, an acceleration
of the maturity thereof or the scheduled dates of principal and interest or
payments thereof, any change to the subordination provisions contained therein,
if any, or any change to the financial covenants or other material covenants
contained therein making such covenants more restrictive to Group or its
subsidiaries, as the case may be."
20. Section 9.14. Transactions with Housewares is deleted.
21. Section 10.1. Guaranties of Lender Obligations. The first
sentence is amended in its entirety to read as follows:
"For value received and hereby acknowledged, and as an inducement to
the Lenders to make the Revolving Credit Facilities and the Advances available
hereunder, each of Frem and Housewares (for purposes of this Article 10 each
such Person, in its capacity as a guarantor hereunder, is hereinafter referred
to as the "Guarantor"), jointly and severally, hereby guarantees to the Lenders
the full and punctual payment when due (whether at maturity, by acceleration or
otherwise), and the performance by Group, of all its Lender Obligations, whether
now existing or hereafter arising (collectively the "Guaranteed Obligations")."
22. Section 10.6. Security; Set-Off is amended by deleting
"(other than Housewares)" in the first sentence, and by deleting the last
sentence beginning "The Agent" and ending "Housewares."
23. The Agent and the Lenders consent to the repurchase of the
12.70% Notes and 1818 Notes with the proceeds of the Senior Notes.
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24. The Borrower represent and warrants that each of the Schedules
to the Credit Agreement remain true, accurate and correct as of the date hereof
except as to Schedules 5.4, 5.12, 5.13, 5.14, 5.15, 5.17(c), 5.18, 5.19(a),
5.19(b), 5.23, 5.24 and 8.13 which are replaced by the Schedules attached
hereto.
25. The Borrower shall pay an amendment fee to the Agent in
connection with the execution of this Second Amendment as set forth in a
separate fee letter.
26. The Revolving Credit Commitment and Revolving Credit
Commitment Percentage of each Lender is set forth below such Lender's name on
the execution page of this Second Amendment, which replace and supersede the
Revolving Credit Commitment and Revolving Credit Commitment Percentage set forth
on the execution pages to the original Credit Agreement.
27. Except as specifically set forth herein and in the First
Amendment to Credit Agreement dated December 31, 1995, the Credit Agreement
remains in full force and effect.
WITNESS, the execution hereunder under seal as of the date set forth
above:
BORROWER:
EKCO GROUP, INC.
By: /s/XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
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GUARANTORS:
EKCO HOUSEWARES, INC.
By: /s/XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
FREM CORPORATION
By: /s/XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President and Treasurer
AGENT:
FLEET BANK OF MASSACHUSETTS, N.A., as
Agent
By: /s/XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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LENDERS:
FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: Fleet Bank of Massachusetts, N.A.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx,
Vice President
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 53.33%
Revolving Credit Commitments: $40,000,000
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ABN AMRO BANK N.V., BOSTON BRANCH
By: /s/XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior V.P. and Managing
Director
By: /s/XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: V.P.
Address: ABN AMRO Bank, N.V.,
Boston Branch
Xxx Xxxx Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Managing
Director
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 20%
Revolving Credit Commitments: $15,000,000
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THE SUMITOMO BANK, LIMITED
By: /s/X. X. XXXXXXX
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Name: X. X. Xxxxxxx
Title: V.P. and Manager
By: /s/XXXXXX XxXXXXXX
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: V. P.
Address: The Sumitomo Bank, Limited
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx XxXxxxxx, Vice President
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 13.33%
Revolving Credit Commitments: $10,000,000
PNC BANK, NATIONAL ASSOCIATION
By: /s/XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant V. P.
Address: PNC Bank, National Association
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
Telefax: (000) 000-0000
Revolving Credit
Commitment Percentage: 13.33%
Revolving Credit Commitments: $10,000,000
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