OMNIBUS AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENTS
EXHIBIT
10.3
EXECUTION
COPY
OMNIBUS
AMENDMENT TO
NOTE
PURCHASE AND
PRIVATE
SHELF AGREEMENTS
THIS OMNIBUS AMENDMENT (this “Amendment”) TO EACH OF THAT
CERTAIN Note Purchase and Private Shelf Agreement, dated as of March 21, 2001
(as amended by that certain Amendment, dated as of March 21, 2004, and as the
same may be further amended, supplemented or otherwise modified from time to
time, the “2001 Note
Agreement”), between The Prudential Insurance Company of America
(“Prudential”), Movado
Group, Inc., a New York corporation (the “Company”), and the other
Purchasers (as defined in the 2001 Note Agreement, the “2001 Purchasers”) party
thereto AND THAT CERTAIN Note Purchase and Private Shelf Agreement, dated as of
November 30, 1998 (as the same may be amended, supplemented or otherwise
modified from time to time, the “1998 Note Agreement”;
each of the 1998 Note Agreement and the 2001 Note Agreement a “Note Agreement” and,
collectively, the “Note
Agreements”; capitalized terms used herein but not otherwise defined
herein shall have the meanings set forth in the respective Note Agreement)
between Prudential, the Company and the other Purchasers (as defined in the 1998
Note Agreement, the “1998
Purchasers” and, collectively with the 2001 Purchasers, the “Purchasers”) party thereto IS
ENTERED INTO as of June 5, 2008, by the Purchasers and the Company.
WHEREAS, the Company and the
Purchasers party thereto have executed and delivered the respective Note
Agreements;
WHEREAS, Movado Retail Group,
Inc., a New Jersey corporation and successor by merger with SwissAm, Inc.
(“MRG”), and Movado LLC,
a Delaware limited liability company (“Movado LLC”, and together,
with MRG, the “Guarantors”), have each
guaranteed the obligations of the Company under the respective Note Agreements;
and
WHEREAS, the Company has
requested the amendment of certain provisions of each Note Agreement, and the
respective Purchasers have indicated their willingness to agree to such
amendments subject to certain limitations and conditions, as provided for
herein;
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual covenants and agreements
contained herein, and other good and valuable consideration, the parties hereto
agree as follows:
1. Amendments
to 2001 Note Agreement. The
2001 Purchasers and the Company hereby agree as follows:
(a) The 2001
Note Agreement is hereby amended by amending and restating Paragraph 2A(1) in
its entirety as follows:
“2A(1).
Facility. Prudential
is willing to consider, in its sole discretion and within limits which may be
authorized for purchase by Prudential and Prudential Affiliates from time to
time, the purchase of Shelf Notes pursuant to this Agreement. The
willingness of Prudential to consider such purchase of Shelf Notes is herein
called the “Facility”. At any
time, $70,000,000.00, minus the aggregate
principal amount of Shelf Notes purchased and sold pursuant to this Agreement
prior to such time, minus the aggregate
principal amount of Accepted Notes (as hereinafter defined) which have not yet
been purchased and sold hereunder prior to such time, is herein called the
“Available facility
Amount” at such time. NOTWITHSTANDING THE WILLINGNESS OF
PRUDENTIAL TO CONSIDER PURCHASES OF SHELF NOTES, THIS AGREEMENT IS ENTERED INTO
ON THE EXPRESS UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE SHELF NOTES,
OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF
SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY
PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE. NOTWITHSTANDING THE
WILLINGNESS OF THE COMPANY TO CONSIDER SALES OF SHELF NOTES, THIS AGREEMENT IS
ENTERED INTO ON THE EXPRESS UNDERSTANDING THAT THE COMPANY SHALL NOT BE
OBLIGATED TO MAKE OFFERS TO SELL SHELF NOTES, OR TO REQUEST RATES, SPREADS OR
OTHER TERMS WITH RESPECT TO SPECIFIC SALES OF SHELF NOTES, AND THE FACILITY
SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY THE
COMPANY.”
(b) The 2001
Note Agreement is hereby amended by deleting the text in clause (i) of Paragraph
2A(2) and replacing it with the following text in its entirety: “June
5, 2011”.
(c) The 2001
Note Agreement is hereby amended by amending and restating Paragraph 5K(2) in
its entirety as follows:
“5K(2). The
Company covenants that if at any time after the date of this Agreement any
Domestic Subsidiary guarantees or provides collateral in any manner for any
Indebtedness of the Company under the Credit Agreement, it will simultaneously
cause such Domestic Subsidiary to guarantee or provide such collateral for the
notes equally and ratably with all indebtedness guaranteed or secured by such
Domestic Subsidiary for so long as such Indebtedness is guaranteed and pursuant
to a guarantee substantially in the form of Exhibit D hereto,
together with an opinion of counsel substantially in the form of paragraphs 1, 3
and 4 of Exhibit
E-1 hereto. Upon the execution and delivery of such guarantee,
such Domestic Subsidiary shall become a Subsidiary Guarantor.”
(d) The 2001
Note Agreement is hereby amended by amending and restating Paragraph 6A in its
entirety as follows:
“6A Intentionally
Omitted.”
(e) The 2001
Note Agreement is hereby amended by amending and restating ▇▇▇▇▇▇▇▇▇ ▇▇ in its
entirety as follows:
“6C Maintenance of Average Debt Coverage
Ratio. The Company shall not permit, as of the last day of any
fiscal quarter of the Company, the Average Debt Coverage Ratio for the period of
four consecutive fiscal quarters ending on such day to be greater than 3.25 to
1.0.”
(f) The 2001
Note Agreement is hereby amended by amending and restating Paragraph 6D in its
entirety as follows:
“6D Limitations on Priority
Debt. The Company covenants that it will not permit, at any
time, Priority Debt to exceed 20% of Consolidated Total
Capitalization.”
(g) The 2001
Note Agreement is hereby amended by amending the flush language at the end of
Paragraph 6E to read in its entirety as follows:
“provided, that at the
time of such merger, consolidation, sale, transfer or disposition and after
giving effect thereto there shall exist no Default or Event of Default; and
provided, further, that in the
case of the transactions described in clause (iv) above, (a) if such continuing,
surviving or acquiring corporation is a corporation organized under the laws of
Canada, the United Kingdom, Switzerland or any local governmental authority of
any of the aforesaid jurisdictions, provision satisfactory to the Required
Holders shall be made in respect of any tax issues arising out of such
transaction and (b) the Company shall have delivered to the holders of the Notes
an opinion of counsel satisfactory to the Required Holders and an Officer’s
Certificate each to the effect that the foregoing provisions have been complied
with.”
(h) The
2001 Note Agreement is hereby amended by amending Paragraph 6K to delete the
phrase “and the Company could not incur an additional $1 of Funded Debt pursuant
to the provisions of paragraph 6C(iv)”.
(i) The 2001
Note Agreement is hereby amended by amending Paragraph 6L to replace “2.50” with
“3.50”.
(j) The 2001
Note Agreement is hereby amended by amending Paragraph 7A by amending and
restating clause (xvi) thereof in its entirety as follows:
“(xvi) if
at any time the capital stock of the Company owned by the ▇▇▇▇▇▇▇▇ Group
represents less than 25% of the voting power of (x) all outstanding capital
stock of the Company and (y) all outstanding securities and rights that are then
convertible into or exchangeable for capital stock of the Company or upon the
exercise of which capital stock of the Company will be issued in respect of such
securities or rights;”
(k) The 2001
Note Agreement is hereby amended by amending Paragraph 10B by adding the
following definitions in their appropriate alphabetical order:
““Average Debt Coverage Ratio”
means the ratio of (i) the sum of indebtedness for borrowed money, indebtedness
for the deferred purchase price of property or services (excluding trade
payables in the ordinary course of business; and excluding wages or other
compensation payable to employees of the Company or any of its Restricted
Subsidiaries in the ordinary course of business), obligations arising under
acceptance facilities, and obligations as lessee under Capital Leases (in all
cases) of the Company and its Restricted Subsidiaries on a consolidated basis as
of the last day of each fiscal quarter for four consecutive fiscal quarters,
divided by four, to (ii) consolidated earnings before interest expense, taxes,
depreciation and amortization of the Company and its Restricted Subsidiaries on
a consolidated basis for such period of four consecutive fiscal
quarters. For purposes of this definition only, if such clause (ii)
is less than one dollar, it shall be deemed to be one dollar.”
““Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and
“Controlled” shall have meanings correlative thereto.”
““▇▇▇▇▇▇▇▇ Group” means the
group consisting of Gedalio ▇▇▇▇▇▇▇▇, his spouse, each of their estates and
their issue; and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, his spouse, each of their estates and their
issue; and every Person (other than an individual) Controlled by any of the
foregoing.”
““Lender” and “Lenders” shall have the
meaning specified in the Credit Agreement.”
(l) The 2001
Note Agreement is hereby amended by amending Paragraph 10B by deleting the
definitions of “Clean Down
Period” and “Excess
Current Debt” and by replacing the definitions of “Credit Agreement” and “Unrestricted Subsidiary” in
their respective entireties as follows:
““Credit Agreement” shall mean
the Credit Agreement dated as of December 15, 2005, by and among the Company,
Movado Watch Company SA and MGI Luxury Group S.A., the Lenders party thereto and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., as Administrative Agent for said Lenders, and any
amendment, modification or supplement thereto, or replacement or refinancing
thereof.”
““Unrestricted Subsidiary” shall
mean any Foreign Subsidiary not identified on Schedule 8A and any other Foreign
Subsidiary until designated as a Restricted Subsidiary in accordance with the
provision of paragraph 6K, provided, however, that any Subsidiary designated as
an Unrestricted Subsidiary must also be designated as such under the Company’s
Credit Agreement.”
(m) The 2001
Note Agreement is hereby amended by replacing the “Authorized Officers for
Prudential” contained in the Information Schedule in its entirety as
follows:
▇▇▇▇
▇▇▇▇▇▇▇, Managing
Director
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇
▇▇▇▇▇, Managing
Director (▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Vice
President (▇▇▇)
▇▇▇-▇▇▇▇
Engin
Okaya, Vice
President (▇▇▇)
▇▇▇-▇▇▇▇
Address for
above:
Prudential
Capital Group
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇”
2. Amendments
to 1998 Note
Agreement. The
1998 Purchasers and the Company hereby agree as follows:
(a) The 1998
Note Agreement is hereby amended by amending and restating Paragraph 5K(2) in
its entirety as follows:
“5K(2). The
Company covenants that if at any time after the date of this Agreement any
Domestic Subsidiary guarantees or provides collateral in any manner for any
Indebtedness of the Company under the Credit Agreement, it will simultaneously
cause such Domestic Subsidiary to guarantee or provide such collateral for the
notes equally and ratably with all indebtedness guaranteed or secured by such
Domestic Subsidiary for so long as such Indebtedness is guaranteed and pursuant
to a guarantee substantially in the form of Exhibit D hereto,
together with an opinion of counsel substantially in the form of paragraphs 1, 3
and 4 of Exhibit
E-1 hereto. Upon the execution and delivery of such guarantee,
such Domestic Subsidiary shall become a Subsidiary Guarantor.”
(b) The 1998
Note Agreement is hereby amended by amending and restating Paragraph 6A in its
entirety as follows:
“6A Intentionally
Omitted.”
(c) The 1998
Note Agreement is hereby amended by amending and restating ▇▇▇▇▇▇▇▇▇ ▇▇ in its
entirety as follows:
“6C Maintenance of Average Debt Coverage
Ratio. The Company shall not permit, as of the last day of any
fiscal quarter of the Company, the Average Debt Coverage Ratio for the period of
four consecutive fiscal quarters ending on such day to be greater than 3.25 to
1.0.”
(d) The 1998
Note Agreement is hereby amended by amending the flush language at the end of
Paragraph 6E to read in its entirety as follows:
“provided, that at the
time of such merger, consolidation, sale, transfer or disposition and after
giving effect thereto there shall exist no Default or Event of Default; and
provided, further, that in the
case of the transactions described in clause (iv) above, (a) if such continuing,
surviving or acquiring corporation is a corporation organized under the laws of
Canada, the United Kingdom, Switzerland or any local governmental authority of
any of the aforesaid jurisdictions, provision satisfactory to the Required
Holders shall be made in respect of any tax issues arising out of such
transaction and (b) the Company shall have delivered to the holders of the Notes
an opinion of counsel satisfactory to the Required Holders and an Officer’s
Certificate each to the effect that the foregoing provisions have been complied
with.”
(e) The
1998 Note Agreement is hereby amended by amending Paragraph 6K to delete the
phrase “and the Company could not incur an additional $1 of Funded Debt pursuant
to the provisions of paragraph 6C(iv)”.
(f) The 1998
Note Agreement is hereby amended by adding a new Paragraph 6L that reads in its
entirety as follows:
“6L Interest Coverage
Ratio. The
Company will not permit the Interest Coverage Ratio as of the last day of any
fiscal quarter or the end of any fiscal year to be less than 3.5 to
1.00.”
(g) The 1998
Note Agreement is hereby amended by amending Paragraph 7A by (i) adding the word
“or” at the end of clause (xv) thereof and (ii) adding a new clause (xvi)
thereof in its entirety as follows:
“(xvi) if
at any time the capital stock of the Company owned by the ▇▇▇▇▇▇▇▇ Group
represents less than 25% of the voting power of (x) all outstanding capital
stock of the Company and (y) all outstanding securities and rights that are then
convertible into or exchangeable for capital stock of the Company or upon the
exercise of which capital stock of the Company will be issued in respect of such
securities or rights;”
(h) The 1998
Note Agreement is hereby amended by amending Paragraph 10B by adding the
following definitions in their appropriate alphabetical order:
““Average Debt Coverage Ratio”
means the ratio of (i) the sum of indebtedness for borrowed money, indebtedness
for the deferred purchase price of property or services (excluding trade
payables in the ordinary course of business; and excluding wages or other
compensation payable to employees of the Company or any of its Restricted
Subsidiaries in the ordinary course of business), obligations arising under
acceptance facilities, and obligations as lessee under Capital Leases (in all
cases) of the Company and its Restricted Subsidiaries on a consolidated basis as
of the last day of each fiscal quarter for four consecutive fiscal quarters,
divided by four, to (ii) consolidated earnings before interest expense, taxes,
depreciation and amortization of the Company and its Restricted Subsidiaries on
a consolidated basis for such period of four consecutive fiscal
quarters. For purposes of this definition only, if such clause (ii)
is less than one dollar, it shall be deemed to be one dollar.”
““Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and
“Controlled” shall have meanings correlative thereto.”
““▇▇▇▇▇▇▇▇ Group” means the
group consisting of Gedalio ▇▇▇▇▇▇▇▇, his spouse, each of their estates and
their issue; and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, his spouse, each of their estates and their
issue; and every Person (other than an individual) Controlled by any of the
foregoing.”
““Lender” and “Lenders” shall have the
meaning specified in the Credit Agreement.”
(i) The 1998
Note Agreement is hereby amended by amending Paragraph 10B by deleting the
definitions of “Clean Down
Period” and “Excess
Current Debt” and by replacing the definitions of “Credit Agreement” and “Unrestricted Subsidiary” in
their respective entireties as follows:
““Credit Agreement” shall mean
the Credit Agreement dated as of December 15, 2005, by and among the Company,
Movado Watch Company SA and MGI Luxury Group S.A., the Lenders party thereto and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., as Administrative Agent for said Lenders, and any
amendment, modification or supplement thereto, or replacement or refinancing
thereof.”
““Unrestricted Subsidiary” shall
mean any Foreign Subsidiary not identified on Schedule 8A and any other Foreign
Subsidiary until designated as a Restricted Subsidiary in accordance with the
provision of paragraph 6K, provided, however, that any Subsidiary designated as
an Unrestricted Subsidiary must also be designated as such under the Company’s
Credit Agreement.”
3. Representations
and Warranties of the Company. The Company
hereby:
(a)
Repeats (and confirms as true and correct) as of the date hereof, for the
Purchasers’ benefit, each of the representations and warranties set forth in
Paragraphs 8A, 8C, 8E, 8G, 8H, 8I, 8J, 8K, 8L, 8M, 8N, 8O, 8P, 8Q, 8R, 8S and 8T
of each Note Agreement, and further agrees that by this reference such
representations and warranties are hereby incorporated herein (as though set
forth herein) in their entirety;
(b)
Further represents and warrants as of the date hereof that:
(i) no
Default or Event of Default has occurred and is continuing;
(ii) the
Company and the Guarantors have the corporate or equivalent power to execute and
deliver this Amendment, and to perform the provisions hereof, and this Amendment
has been duly authorized by all necessary corporate or equivalent action on the
part of each such Person;
(iii) this
Amendment has been duly executed and delivered by the Company and the Guarantors
and constitutes such Person’s legal, valid and binding obligation, enforceable
in accordance with its terms, except as such enforceability may be limited (x)
by general principles of equity and conflicts of laws or (y) by bankruptcy,
reorganization, insolvency, moratorium or other laws of general application
relating to or affecting the enforcement, of creditors' rights;
(iv) no
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or administrative or governmental body or third
party is required in connection with the execution, delivery or performance by
such Person of this Amendment;
(v) the
Company has furnished Prudential with the audited consolidated and consolidating
balance sheets of the Company and its Subsidiaries at January 31, 2006, January
31, 2007 and January 31, 2008 and the related consolidated and consolidating
statements of income and cash flows and changes in shareholders’ equity for each
of the years in the three-year period ended January 31, 2008, all reported on by
PriceWaterhouseCoopers LLP. All of such financial statements
(including any related schedules and/or notes) are true and correct in all
material respects (subject, as to interim statements, to changes resulting from
audits and year-end adjustments) and fairly present the consolidated financial
position and the consolidated results of the operations and consolidated cash
flows of the corporations described therein at the dates and for the periods
shown, all in conformity with generally accepted accounting principles applied
on a consistent basis (except as otherwise stated therein or in the notes
thereto stated) throughout the periods involved. None of the Company and its
Subsidiaries has any contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments which are substantial and material in amount in relation
to the consolidated financial condition of the Company, except as referred to or
reflected or provided for in the financial statements. Since January 31, 2008,
(i) there has been no change in the assets, liabilities or condition (financial
or otherwise) of the Company or any of its Subsidiaries, other than changes
which have not been, either in any case or in the aggregate, materially adverse
to the Company and its Subsidiaries taken as a whole and (ii) neither the
business, operations, affairs nor any of the properties or assets of the Company
or any of its Subsidiaries have been affected by any occurrence or development
(whether or not insured against) which has been, either in any case or in the
aggregate, materially adverse to the Company and its Subsidiaries taken as a
whole.
(vi) Schedule 8A to this
Amendment sets forth a complete and correct list as to each of the Company’s
Subsidiaries as of the date hereof.
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(vii)
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except
as described therein, Schedule 8D to
this Amendment sets forth a complete and correct list of all outstanding
Debt of the Company and its Subsidiaries as of January 31,
2008. There exists no default or temporary waiver or default
under the provisions of any instrument evidence such Debt or of any
agreement relating thereto;
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(viii) (A)
the Company and each of its Subsidiaries has (to the extent material to the
Company and its Subsidiaries taken as a whole) good and indefeasible title to
its respective real properties (other than properties which it leases) and good
title to all of its other respective properties and assets, including the
properties and assets reflected in the balance sheet as at January 31, 2008
(other than properties and assets disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by Paragraph 6B
of the Note Agreements, and (B) all leases necessary in any material respect for
the conduct of the respective businesses of the Company and its Subsidiaries are
valid and subsisting and are in full force and effect;
(ix) neither
the Company nor any of its Subsidiaries (A) is listed on the Specially
Designated Nationals and Blocked Persons List (the “SDN List”)
maintained by the Office of Foreign Assets Control, Department of the Treasury
(“OFAC”), or
on any other list of terrorists or terrorist organizations maintained pursuant
to any of the rules and regulations of OFAC or pursuant to any other applicable
Executive Order (such other lists are referred to herein, collectively, as the
“Other
Lists”; the SDN List and the Other Lists are referred to herein,
collectively, as the “Lists”),
(B) has been determined by competent authority to be subject to
the prohibitions contained in Executive Order No. 13224 (Sept. 23, 2001) or any
other similar prohibitions contained in the rules and regulations of OFAC or in
any enabling legislation or other Executive Orders in respect thereof, (C) is
owned or controlled by, or acts for or on behalf of, any person on the Lists or
any other person who has been determined by competent authority to be subject to
the prohibitions contained in Executive Order No. 13224 (Sept. 23, 2001) or
similar prohibitions contained in the rules and regulations of OFAC or any
enabling legislation or other Executive Orders in respect thereof, and (D) is
failing to comply in any material way with the requirements of Executive Order
No. 13224 (Sept. 23, 2001) and other similar requirements contained in the rules
and regulations of OFAC and in any enabling legislation or other Executive
Orders in respect thereof; and
(x) neither
the Company nor any Guarantor has any defenses, offsets or counterclaims against
any of their obligations under or in respect of either Note Agreement or any
Subsidiary Guarantee in respect thereof.
4. Acknowledgement
and Consent of Guarantors. Each Guarantor hereby acknowledges
that it has reviewed the terms and provisions of the Note Agreements, the Notes
with respect thereto, each Subsidiary Guarantee and this Amendment and consents
to the amendments to each Note Agreement effected pursuant to this
Amendment. Each Guarantor confirms that its Subsidiary Guarantee will
continue to guarantee to the fullest extent possible the payment and performance
of all guaranteed Obligations (as defined in each Subsidiary
Guarantee). Each Guarantor acknowledges and agrees that (a) its
Subsidiary Guarantee shall continue in full force and effect and that its
obligations thereunder shall be valid and enforceable and shall not be impaired
or limited by the execution or effectiveness of this Amendment, and (b) (i)
notwithstanding the conditions to effectiveness hereof, such Guarantor is not
required by the terms of either Note Agreement, the Notes thereunder or the
Subsidiary Guarantee in respect thereof to consent to the amendments to the Note
Agreements effected pursuant to this Amendment, and (ii) nothing in either Note
Agreement, the Notes thereunder or the Subsidiary Guarantee in respect thereof
shall be deemed to require the consent of any such Guarantor to any future
amendments to such Note Agreement.
5. Effectiveness
of Amendment. This Amendment shall become effective upon
the date each of the following conditions thereto is satisfied:
(a) receipt
by the Purchasers of counterparts of this Amendment, executed and delivered by
each of the parties hereto,
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(b)
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receipt
by the Purchasers of:
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(i) Certified
copies of the resolutions of the Board of Directors of the Company and each
Guarantor, authorizing the execution and delivery of this Amendment, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Amendment;
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(ii)
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a
certificate dated the date hereof of the Secretary or an Assistant
Secretary and one other officer of the Company (together with such
evidence thereof as may be reasonably requested by the Purchasers)
certifying that (A) the certificate of such Person previously delivered
pursuant to Paragraph 3A(iii)(a) of the respective Note Agreement
continues to be true, current and correct and (B) the Certificate of
Incorporation and By-laws of such Person previously delivered pursuant to
Paragraph 3A(iv)(a) of the Note Agreements continue to be in full force
and effect and have not been modified or amended in any respect (in each
case, except as specifically set forth therein, which modifications or
amendments shall be in form and substance acceptable to the
Purchasers);
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(iii) a
corporate good standing certificate for the Company from the Secretary of State
of New York dated of a recent date;
(iv) favorable
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the
date hereof, satisfactory to the Purchasers and in form and substance
substantially identical to Exhibit E-1 to the
Note Agreements. The Company hereby directs such counsel to deliver such
opinion(s) and agrees that each Purchaser receiving such an opinion will and is
hereby authorized to rely on such opinion; and
(v) such
additional documents or certificates with respect to legal matters or corporate
or other proceedings related to the transactions contemplated hereby as may be
reasonably requested by the Purchasers.
(c) the
representations and warranties contained in Section 2 above shall be true on and
as of the date hereof, and there shall exist on the date hereof no Event of
Default or Default;
(d) the
Company shall have paid Prudential Investment Management, Inc. (and Prudential
Investment Management, Inc. shall have received) on the date hereof a facility
fee in the amount of $50,000;
(e) all
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto shall be
satisfactory in substance and form to the Purchasers, the Purchasers shall have
received all such counterpart originals or certified or other copies of such
documents as it may reasonably request;
(f) the
execution and delivery of this Amendment shall (i) not violate any applicable
law or governmental regulation (including, without limitation, Section 5 of the
Securities Act or Regulation T, U or X of the Board of Governors of the Federal
Reserve System) and (ii) shall not subject any Purchaser to any tax, penalty,
liability or other onerous condition under or pursuant to any applicable law or
governmental regulation;
(g) counsel
for the Purchasers shall be satisfied as to all legal matters relating to this
Amendment, and the Purchasers shall have received from such counsel favorable
opinions as to such legal matters as they may request; and
(h) the
Company shall have made all requests, filings and registrations with, and
obtained all consents and approvals from, the relevant national, state, local or
foreign jurisdiction(s), or any administrative, legal or regulatory body or
agency thereof, that are necessary in connection with this Amendment and any and
all other documents relating hereto, and the transactions contemplated
hereby.
6. Miscellaneous.
(a) This
Amendment may be executed in any number of counterparts and by any combination
of the parties hereto in separate counterparts, each of which counterparts shall
be an original and all of which taken together shall constitute one and the same
agreement.
(b) This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New
York.
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[Signature
page follows.]
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IN WITNESS WHEREOF, the
parties have caused this Amendment to be executed and delivered by their
respective officers thereunto duly authorized as of the date first above
written.
MOVADO GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP/Treasurer
1998
Purchaser:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
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By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Vice
President
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2001
Purchasers:
THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA
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By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Vice
President
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PRUCO
LIFE INSURANCE COMPANY
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By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Assistant
Vice President
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PRUDENTIAL
RETIREMENT INSURANCE AND ANNUITY COMPANY
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By:
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Prudential
Investment Management, Inc., as investment
manager
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By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Vice
President
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RELIASTAR
LIFE INSURANCE COMPANY
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By:
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Prudential
Private Placement Investors,
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L.P.
(as Investment Advisor)
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By:
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Prudential
Private Placement Investors, Inc. (as its General
Partner)
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By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Vice President
CONSENT AND ACKNOWLEDGEMENT
OF GUARANTORS
MOVADO
RETAIL GROUP, INC., (as successor by merger with SwissAm,
Inc.)
By:________________________________
Name:______________________________
Title:_______________________________
MOVADO LLC
By:_________________________________
Name:_______________________________
Title:________________________________