Exhibit 10.1
Third Amendment, dated as of June 12, 1998 to the Financing Agreement,
dated as of September 25, 1997, as amended and supplemented prior to the date
hereof, (as so amended and supplemented, the "Financing Agreement"), by and
among Norton XxXxxxxxxx, Inc., a Delaware corporation (the "Company"), Norton
XxXxxxxxxx of Xxxxxx, Inc., a New York corporation ("Squire"), Miss Xxxxx, Inc.,
a Delaware corporation formerly known as ME Acquisition Corp. ("Miss Xxxxx" and
together with Squire, each a "Borrower" and collectively, the "Borrowers"), the
lenders listed on Schedule 1.01A to the Financing Agreement (each a "Lender" and
collectively the "Lenders"), NationsBanc Commercial Corporation, as collateral
agent for the Lenders (in such capacity, the "Collateral Agent") and The CIT
Group/Commercial Services, Inc., as administrative agent for the Lenders (in
such capacity, the "Administrative Agent" and together with the Collateral
Agent, each an "Agent" and collectively, the "Agents").
The Company, the Borrowers, the Lenders and the Agents desire to amend
the Financing Agreement on the terms and conditions hereafter set forth.
Accordingly, the Company, the Borrowers, the Agents and the Lenders hereby agree
as follows:
1. Definitions. All capitalized terms used herein and not otherwise
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defined herein are used herein as defined in the Financing Agreement.
2. Financial Covenants.
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(a) Tangible Net Worth. Section 7.02(p)(i) of the Financing
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Agreement is hereby amended by deleting the amount corresponding to the Fiscal
Quarter ending May 2, 1998 and substituting in lieu thereof $35,400,000.
(b) Working Capital. Section 7.02(p)(iii) of the Financing
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Agreement is hereby amended by deleting the amount corresponding to the Fiscal
Quarter ending May 2, 1998 and substituting in lieu thereof, $39,400,000.
(c) Fixed Charge Coverage Ratio. Section 7.02(p)(iv) of the
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Financing Agreement is hereby amended by deleting the ratio corresponding to the
Fiscal Quarter ending May 2, 1998 and substituting in lieu thereof, 1.50:1.0.
(d) Cash Flow Ratio. Section 7.02(p)(v) of the Financing
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Agreement is hereby amended by deleting the ratio corresponding to the Fiscal
Quarter ending May 2, 1998 and substituting in lieu thereof 2.30:1.0
3. Conditions to Effectiveness. This Amendment shall become
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effective only upon satisfaction in full of the following conditions precedent
(the first date upon which all such conditions shall have been satisfied being
herein called the "Amendment Effective Date"):
(a) The representations and warranties contained in this
Amendment and in Article VI of the Financing Agreement shall be correct in all
material respects on and as of the Amendment Effective Date as though made on
and as of such date (except where such representations and warranties relate to
an earlier date in which case such representations and warranties shall be true
and correct as of such earlier date); no Event of Default or Default shall have
occurred and be continuing on the Amendment Effective Date, or result from this
Amendment becoming effective in accordance with its terms.
(b) The Agents shall have received counterparts of this Amendment
which bear the signatures of the Company, the Borrowers and each of the Lenders.
(c) All legal matters incident to this Amendment shall be
satisfactory to the Agents and their counsel.
4. Representations and Warranties. Each of the Company and the
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Borrowers represents and warrants to the Lenders as follows:
(a) The Company and each Borrower (i) is duly organized, validly
existing and in good standing under the laws of the state of its organization
and (ii) has all requisite power, authority and legal right to execute, deliver
and perform this Amendment, and to perform the Financing Agreement, as amended
hereby.
(b) The execution, delivery and performance by the Company and
the Borrowers of this Amendment and the performance by the Company and the
Borrowers of the Financing Agreement as amended hereby (i) have been duly
authorized by all necessary action, (ii) do not and will not violate or create a
default under the Company's or any Borrower's organizational documents, any
applicable law or any contractual restriction binding on or otherwise affecting
the Company or any Borrower or any of the Company's or such Borrower's
properties, and (iii) except as provided in the Loan Documents, do not and will
not result in or require the creation of any Lien, upon or with respect to the
Company's or any Borrower's property.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required in connection with the due execution, delivery and performance by the
Company or any of the Borrowers of this Amendment and the performance by the
Company and the Borrowers of the Financing Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Company and
the Borrowers party thereto, enforceable against such Persons in accordance with
their terms except to the extent the enforceability thereof may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect affecting generally the enforcement of
creditors' rights and remedies and by general principles of equity.
(e) The representations and warranties contained in Article VI of
the Financing Agreement are correct on and as of the Amendment Effective Date as
though made on and as of the Amendment Effective Date (except to the extent such
representations and warranties expressly relate to an earlier date), and no
Event of Default or Default, has occurred and is continuing on and as of the
Amendment Effective Date.
5. Continued Effectiveness of Financing Agreement. Each of the
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Company and the Borrowers hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Amendment Effective Date of this Amendment all references in any such Loan
Document to "the Financing Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment, and (ii) confirms and agrees
that to the extent that any such Loan Document purports to assign or pledge to
the Collateral Agent, or to grant to the Collateral Agent a Lien on any
collateral as security for the Obligations of the Company and the Borrowers from
time to time existing in respect of the Financing Agreement and the Loan
Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and
confirmed in all respects.
6. Miscellaneous.
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(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) The Borrowers will pay on demand all reasonable out-of-pocket
costs and expenses of the Agents in connection with the preparation, execution
and delivery of this Amendment, including, without limitation, the reasonable
fees, disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to
the Agents.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NORTON XXXXXXXXXX, INC.
By:_____________________________________
Title:__________________________________
NORTON XXXXXXXXXX OF XXXXXX, INC.
By:_____________________________________
Title:__________________________________
MISS XXXXX, INC.
By:_____________________________________
Title:__________________________________
AGENTS AND LENDERS
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THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Administrative Agent and Lender
By:_____________________________________
Title:__________________________________
NATIONSBANC COMMERCIAL
CORPORATION, as Collateral Agent and Lender
By:_____________________________________
Title:__________________________________
LENDERS
BANKBOSTON, N.A.
By:_____________________________________
Title:__________________________________
FLEET BANK, N.A.
By:_____________________________________
Title:__________________________________
PNC BANK, NATIONAL ASSOCIATION
By:_____________________________________
Title:__________________________________
