EXHIBIT 10-C
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1, dated as of December 8, 1997, to the Credit
Agreement, dated as of December 31, 1996 (the "Credit Agreement"), among
(i) ▇▇▇▇▇▇▇▇ BRANDS INTERNATIONAL, INC., a New Jersey corporation
("Borrower"), (ii) the financial institutions which are now, or in
accordance with Section 12.2 of the Credit Agreement hereafter become,
parties to the Credit Agreement (collectively, "Lenders"), (iii)
BANKBOSTON, N.A. (formerly named "The First National Bank of Boston"), as
Administrative Agent for the Lenders, and (iv) BANKBOSTON, N.A., ING BANK
N.V., GRONINGEN BRANCH, and PNC BANK, OHIO, NATIONAL ASSOCIATION, as
Co-agents for the Lenders.
RECITALS
The Borrower, the Lenders and the Agents party to this
Amendment No. 1 ("this Agreement") have agreed to amend certain of the
provisions contained in the Credit Agreement as set forth herein.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
ARTICLE II
AMENDMENTS
Effective on and as of September 30, 1997 ("Effective Date"), the
Credit Agreement is hereby amended in each of the following respects:
SECTION 2.1. Amendments to Defined Terms.
(a) The defined term "Consolidated EBITDA" appearing in
Section 1.1 of the Credit Agreement is hereby amended by inserting
the following new paragraph immediately after the first paragraph of
the defined term "Consolidated EBITDA":
"For purposes of determining the Consolidated EBITDA of
the Borrower and its Subsidiaries for any Reference Period,
(i) there shall be excluded from such Consolidated EBITDA the
sum of (A) all operating income for such period, (B) all
depreciation and amortization expense for such period, and (C)
"Other Income (Expense), net" as shown on the consolidated
statement of income of the Borrower and its Subsidiaries for
such period, but only to the extent, in the case of each of
subclause (A), (B) and (C), attributable to all Property that
is the subject of each Sale completed during such period by
the Borrower or its Subsidiaries other than in the ordinary
course of business as if no Property subject to any of such
Sales was owned at any time during such period by the Borrower
or its Subsidiaries, and (ii) there shall be included in such
Consolidated EBITDA the sum of (A) all operating income for
such period, (B) all depreciation and amortization expense for
such period, and (C) "Other Income (Expense), net" as shown on
the consolidated statement of income of the Borrower and its
Subsidiaries for such period, but only to the extent, in the
case of each of subclause (A), (B) and (C), attributable to
all Property that is the subject of each Acquisition completed
during such period by the Borrower or its Subsidiaries other
than in the ordinary course of business as if all Property
subject to any of such Acquisitions was owned by the Borrower
or its Subsidiaries at all times during such period."
(b) The defined term "Consolidated Net Interest Expense"
appearing in Section 1.1 of the Credit Agreement is hereby amended
by inserting the following new paragraph immediately after the first
paragraph of the defined term "Consolidated Net Interest Expense":
"For purposes of determining the Consolidated Net Interest
Expense of the Borrower and its Subsidiaries for any Reference
Period, (i) there shall be excluded from such Consolidated Net
Interest Expense the aggregate of the interest expense for such
period on all of the Indebtedness for Borrowed Money of the Borrower
or its Subsidiaries repaid in connection with the completion of each
Sale of Property by the Borrower or its Subsidiaries during such
period other than in the ordinary course of business, (ii) there
shall be included in such Consolidated Net Interest Expense the
aggregate of the interest expense on all of the Indebtedness for
Borrowed Money of the Borrower or its Subsidiaries incurred in
connection with the completion of each Acquisition by the Borrower
or its Subsidiaries during such period (A) as if all of the
Indebtedness for Borrowed Money so incurred in connection with each
such Acquisition had (in each case) been incurred on the first day
of such period, and (B) as if interest had accrued on such
Indebtedness for Borrowed Money during such period prior to the date
of the actual incurrence thereof at an annual interest rate equal to
the annual interest rate payable on such Indebtedness for Borrowed
Money on the date first incurred, and (C) the Consolidated Net
Interest Expense of the Borrower and its Subsidiaries for such
period shall also be adjusted to give pro forma effect to all
changes in interest income of the Borrower and its Subsidiaries for
such period directly attributable to each of the Sales or
Acquisitions completed during such period."
(c) The defined term "Special Covenant Conditions" appearing
in Section 1.1 of the Credit Agreement is hereby amended by amending
and restating in its entirety clause (d) of such defined term as
follows:
"(d) no breach of the financial covenant set forth in Section
9.2.3(b) would have occurred as at the end of the Reference Period
ending immediately prior to the date of completion of such
Restricted Transaction had such financial covenant been calculated
for such Reference Period (i) as if such Restricted Transaction and
all (if any) of the other Restricted Transactions completed after
the end of such Reference Period but prior to completion of such
Restricted Transaction had been completed immediately prior to the
beginning of such Reference Period, (ii) as if all (if any)
Indebtedness for Borrowed Money incurred in connection with each of
such Restricted Transactions had (in each case) been incurred on the
first day of such Reference Period, (iii) as if interest had accrued
on such Indebtedness for Borrowed Money during such Reference Period
at an annual interest rate equal to the annual interest rate payable
on such Indebtedness for Borrowed Money on the date it is first
incurred, and (iv) as if all (if any) Indebtedness for Borrowed
Money repaid in connection with each of such Restricted Transactions
had (in each case) been repaid immediately prior to the beginning of
such Reference Period; and"
SECTION 2.2. Amendment to Section 9.2.4. Paragraph (a) of Section
9.2.4 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"(a) the making by any Subsidiary of the Borrower (i) to the
Borrower or to any other Subsidiary of the Borrower of any
Restricted Payments of the kind described in clause (c) of the
definition "Restricted Payments", and (ii) of any Restricted
Payments of the kind described in clause (b) of the definition
"Restricted Payments"; provided, however, that no such Restricted
Payments of the kind described in clause (b) of the definition
"Restricted Payments" shall in any event be permitted unless any
such Restricted Payments on any shares of a particular class of
Capital Stock of a corporation shall be made on or with respect to
all of the issued and outstanding shares of such class of Capital
Stock of such corporation on a pro rata basis, at the same time and
on the same terms."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Agent and Lender as
follows:
SECTION 3.1. Representations in Loan Documents. Each of the
representations and warranties made by or on behalf of the Borrower to the
Agents and the Lenders in the Loan Documents was true and correct in all
material respects when made and is true and correct in all material
respects on and as of the date hereof, except, in each case, (a) as
affected by the consummation of the transactions contemplated by the Loan
Documents (including this Agreement), and (b) to the extent that any such
representation or warranty relates by its express terms solely to a prior
date.
SECTION 3.2. Corporate Authority, etc. The execution and delivery
by the Borrower of this Agreement and the performance by the Borrower of
its agreements and obligations under this Agreement have been duly and
properly authorized by all necessary corporate or other action on the part
of the Borrower, and do not and will not conflict with, result in any
violation of, or constitute any default under (a) any provision of any
Governing Document of the Borrower, (b) any Contractual Obligation of the
Borrower, or (c) any Applicable Law.
SECTION 3.3. Validity, etc. This Agreement has been duly executed
and delivered by the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
at the time in effect affecting the enforceability of the rights of
creditors generally and to general equitable principles. The Borrower
hereby ratifies and confirms all of the Obligations in all respects.
SECTION 3.4. No Defaults. Before and after giving effect to this
Agreement, no Defaults or Events of Default are or will be continuing
under the Credit Agreement.
ARTICLE IV
PROVISIONS OF GENERAL APPLICATION
This Agreement shall become effective on and as of the Effective
Date once the Administrative Agent has received duly executed counterparts
hereof signed by the Borrower and the Required Lenders. Except as
otherwise expressly provided by this Agreement, all of the terms,
conditions and provisions of the Credit Agreement and each of the other
Loan Documents shall remain unaltered. This Agreement is a Loan Document
for all purposes of the Credit Agreement. This Agreement and the rights
and obligations hereunder of each of the parties hereto shall in all
respects be construed in accordance with and governed by the internal laws
of the State of New York. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, but
all of such counterparts shall together constitute but one and the same
agreement. In making proof of this Agreement, it shall not be necessary
to produce or account for more than one counterpart hereof signed by each
of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be executed by their respective authorized officers as of the
date first above written.
THE BORROWER:
▇▇▇▇▇▇▇▇ BRANDS INTERNATIONAL, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE AGENTS AND LENDERS:
BANKBOSTON, N.A., as Administrative Agent, as one of the
Co-agents, and as one of the Lenders
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ING BANK N.V., GRONINGEN BRANCH, as one of the Co-agents and as
one of the Lenders
By: /s/U.P. ▇▇▇▇▇▇▇
----------------------------
Name:U.P. ▇▇▇▇▇▇▇
Title:
PNC BANK, OHIO, NATIONAL ASSOCIATION, as one of the Co-agents
and as one of the Lenders
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH, as one of the Lenders
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA ILLINOIS, as one of the Lenders
By: /s/W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH, as one of the
Lenders
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/Hans Chr. Kjelsrud
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Hans Chr. Kjelsrud
Title: First Vice President First Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION, as one of the
Lenders
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name:▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Chief Manager
STAR BANK, N.A., as one of the Lenders
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK, N.A., as one of the Lenders
By: /s/▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
