EXHIBIT 10.33
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of August 12, 1998 (this "AMENDMENT AND
WAIVER"), to the Second Amended and Restated Credit Agreement, dated as of June
18, 1998 (as heretofore amended and as the same may be further amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
among RECOTON CORPORATION, a New York corporation (the "BORROWER"), the several
banks and other financial institutions from time to time parties thereto (the
"LENDERS"), and THE CHASE MANHATTAN BANK, as administrative agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders, and the Administrative Agent are
parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders and the
Administrative Agent agree to amend or waive certain provisions of the Credit
Agreement, and the Lenders and the Administrative Agent have agreed to such
amendments and waivers upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the Borrower, the Lenders and the Administrative Agent
hereby agree as follows:
1. DEFINITIONS. All terms defined in the Credit Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
2. AMENDMENT OF CERTAIN PROVISIONS OF SECTION 7.1 OF THE CREDIT
AGREEMENT. Subsection 7.1(a) of the Credit Agreement is hereby amended effective
as of June 30, 1998 by deleting therefrom:
"March 31, 1998 through December 30, 1998 0.80 to 1.00";
and inserting in lieu thereof:
"March 31, 1998 through June 29, 1998 0.80 to 1.00
June 30, 1998 through December 30, 1998 0.62 to 1.00".
3. WAIVER OF CERTAIN PROVISIONS OF SECTION 7.2 OF THE CREDIT
AGREEMENT. Section 7.2 of the Credit Agreement is hereby waived to the extent,
and only to the extent, that the Borrower may not be in compliance therewith due
to the issuance and sale of Senior Notes (as defined in the Credit Agreement);
PROVIDED that any such Senior Notes shall be issued and sold (a) after the date
hereof and prior to September 30, 1998 and (b) in a principal amount not to
exceed $25,000,000.
4. WAIVER OF CERTAIN PROVISIONS OF SECTION 7.4 OF THE CREDIT
AGREEMENT. Section 7.4 of the Credit Agreement is hereby waived to the extent,
and only to the extent, that the Borrower may not be in compliance therewith due
to the guarantee by Subsidiaries of the Borrower of up to $25,000,000 in newly
issued and sold Senior Notes; PROVIDED that any such Senior Notes shall be
issued and sold (a) after the date hereof and prior to September 30, 1998 and
(b) in a principal amount not to exceed $25,000,000.
5. APPLICABLE MARGIN; COMMITMENT FEE RATE. (a) Notwithstanding the
definition of Applicable Margin set forth in subsection 1.1 of the Credit
Agreement, for the period commencing on the most recent Adjustment Date to have
occurred prior to the date hereof and ending on the second Adjustment Date
following the date hereof, the Applicable Margin shall equal (i) with respect to
ABR Loans, 0.50% per annum and (ii) with respect to Eurodollar Loans, 2.75% per
annum.
(b) Notwithstanding the definition of Commitment Fee Rate set forth in
subsection 1.1 of the Credit Agreement, for the period commencing on the most
recent Adjustment Date to have occurred prior to the date hereof and ending on
the second Adjustment Date following the date hereof, the Commitment Fee Rate
shall equal 0.50% per annum.
6. EFFECTIVENESS. This Amendment and Waiver shall become effective on
the condition that (a) the Borrower shall have delivered to the Administrative
Agent duly executed copies of this Amendment and Waiver, which copies shall
include the acknowledgement and consent of the Guarantors, (b) the
Administrative Agent shall have received duly executed copies of this Amendment
and Waiver from the Required Lenders and (c) to the extent there is any
violation of the covenants contained in the Note Purchase Agreement, dated as of
January 6, 1997, between the Borrower and the banks and other financial
institutions parties thereto, the Administrative Agent shall have received a
copy of a waiver (in form and substance reasonably satisfactory to the
Administrative Agent) waiving any violations of such covenants.
7. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants that the representations and warranties contained in the Credit
Agreement (except those which expressly speak as of a certain date) will be,
after giving effect to this Amendment and Waiver, true and correct in all
material respects, as if made on and as of the date hereof.
8. LIMITED WAIVER. Except as expressly waived hereby, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect in accordance with the provisions thereof. This
Amendment and Waiver shall not be deemed to be a waiver of, or consent to, any
other term or condition of the Credit Agreement or the other Loan Documents or
to prejudice any other right or rights which the Administrative Agent or any
Lender may now have or may have in the future under or in connection with the
Credit Agreement or any of the instruments or agreements referred to therein, as
the same may be amended from time to time.
9. FEES, COSTS AND EXPENSES. The Borrower agrees to pay or reimburse
the Administrative Agent for any fees that may be payable in connection with
this Amendment and Waiver and all its reasonable and customary out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and
execution of this Amendment and Waiver, including, without limitation, the
reasonable fees and disbursements of its counsel.
10. COUNTERPARTS. This Amendment and Waiver may be executed by one or
more of the parties hereto in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Amendment and Waiver
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
11. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed and delivered by their respective duly authorized
officers.
RECOTON CORPORATION
By: /s/ Stuart Mont
----------------------
(Signature)
Name: Stuart Mont
-------------------
(Print)
Title: Executive Vice President-
Operations & COO
(Print)
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxx
--------------------------
(Signature)
Name: Xxxxxx Xxxxxxx
--------------------------
(Print)
Title: Vice President
(Print)
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X. Xxxx, III
----------------------------
(Signature)
Name: Xxxxxxx X. Xxxx, III
-----------------------------
(Print)
Title: First Vice President
(Print)
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By:
(Signature)
Name:
(Print)
Title:
(Print)
MARINE MIDLAND BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------
(Signature)
Name: Xxxxx Xxxxxxx
-----------------------------
(Print) Vice President
Title:
(Print)
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------
(Signature)
Name: Xxxx X. Xxxxx
(Print)
Title: Vice President
(Print)
THE UNDERSIGNED GUARANTORS HEREBY CONSENT AND AGREE TO THE FOREGOING
AMENDMENT AND WAIVER AS OF THE DATE HEREOF:
Christie Design Corporation, a Delaware corporation
InterAct Accessories, Inc., a Delaware corporation
Recoton Audio Corporation, a Delaware corporation
ReCone, Inc., a Delaware corporation
Recoton Home Audio, Inc., a California corporation
Recoton Japan, Inc., an Illinois corporation
Recoton International Holdings, Inc., a Delaware
corporation
Recoton European Holdings, Inc., a Delaware
corporation
AAMP of Florida, Inc., a Florida corporation
By:/s/ Stuart Mont
---------------------------------------------
Name: Stuart Mont
Title: Vice President
Recoton German Holdings GmbH, a German corporation
Mac Audio Electronic GmbH, a German corporation
Magnat Audio-Produkte GmbH, a German corporation
Heco Audio-Produkte GmbH, a German corporation
Arcona s.r.l., an Italian corporation
Recoton Italia s.r.l., an Italian corporation
By:/s/Xxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
Recoton Canada Ltd., a Canadian corporation
By: /s/ Stuart Mont
--------------------------------------------
Name: Stuart Mont
Title: President
Recoton (Far East) Limited, a Hong Kong corporation
STD Holding Limited, a Hong Kong corporation
STD Electronic International Limited, a Hong Kong
corporation
STD Manufacturing Limited, a Hong Kong corporation
STD Plastic Industrial Limited, a Hong Kong
corporation
STD Trading Limited, a Hong Kong corporation
Peak Hero Limited, a Hong Kong corporation
Ever Smart Management Limited, a Hong Kong
corporation
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
