Exhibit 4.6
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment"), dated as of June 2, 2004 is among ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC., a
Delaware Corporation (the "Borrower"), the banks listed on the signature pages
hereto (the "Banks"), JPMORGAN CHASE BANK, as the administrative agent (the
"Administrative Agent"), and FLEET NATIONAL BANK (the "Collateral Agent").
RECITALS:
A. The Borrower, the Administrative Agent, the Collateral Agent and the
banks party thereto have entered into that certain Second Amended and Restated
Credit Agreement dated as of December 24, 2002 (as the same has been modified
by that certain First Amendment to Second Amended and Restated Credit
Agreement dated February 25, 2004 and as the same may hereafter be amended or
otherwise modified from time to time, the "Agreement").
B. The Borrower and the Guarantors has requested that the Agents and
the Banks amend certain provisions of the Agreement to, among other things,
take into account the change in the Borrower's fiscal year to last day of the
month of June rather than the last day in the month of January. The
Administrative Agent, the Collateral Agent, and the Banks are willing to amend
the Agreement, in accordance with the terms herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows effective as of
the date hereof unless otherwise indicated:
ARTICLE I.
Definitions
Section 1.1. Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
ARTICLE II.
Amendments
Section 2.1. Amendment to Definition of "Borrowing Base". Clause (b) of
the definition of "Borrowing Base" contained in Section 1.01 of the Agreement
is amended and restated in its entirety to read as follows:
(b) Eligible Finished Goods Inventory; Packaged. The lesser of:
(i) the product of the percentage set forth in either clause
(A) or (B) below which is applicable as of the date of determination
multiplied by the aggregate amount of all Eligible Finished Goods
Inventory and Eligible Arden Finished Goods Inventory, in each case, which
have been packaged for delivery to a customer and valued based on the lower of
cost or market value:
(A) In Season. if the date of determination is during
the period from and including May 16 to and including November 15,
seventy-five percent (75%); and
(B) Out of Season. if the date of determination is
during the period from and including November 16 to and including May 15,
sixty-five percent (65%); or
(ii) eighty-five percent (85%) of the product of the Appraised
Liquidation Percentage (as defined below in this definition)
multiplied by the gross cost of all finished goods inventory of
Borrower which has been packaged for delivery to a customer; plus
Section 2.2. Amendment to Section 1.01. The following definition
contained in Section 1.01 of the Agreement is amended and restated in its
entirety to read as follows:
"Debt Service Pricing Ratio" means, as of any fiscal quarter end,
the ratio of the following calculated for the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP as of the end
of such fiscal quarter for the preceding twelve months:
(a) the sum of (i) Consolidated EBITDA minus (ii) Capital
Expenditures which were not financed with Indebtedness
permitted under clauses (viii), (ix) or (x) of the definition
of Permitted Indebtedness; minus (iii) all income and franchise
taxes paid in cash; to
(b) the sum of:
(i) Consolidated Net Interest Expense minus as of each
calculation date set forth below (A) $7,834,400 for the three months
ended June 30, 2004, (B) $3,835,800 for the fiscal quarter ended
September 30, 2004, and (C) $1,024,200 for the fiscal quarter ended
December 31, 2004; plus
(ii) regularly scheduled principal payments made in respect of
Indebtedness during such twelve month period excluding regularly
scheduled principal payments in respect of the 8.5% Subordinated
Notes due May 2004 and the 8.84% Mortgage Notes due July 2004; plus
(iii) all cash Dividends paid during such period.
Section 2.3. Amendment to Section 5.01. Clause (f) contained in Section
5.01 of the Agreement is amended and restated in its entirety to read as
follows:
(f) a Borrowing Base Certificate together with an accounts
receivable aging report (reflecting all journal entries and adjustments
including all customer credits and debits), a report showing all amounts
payable by the Borrower to the account debtors whose accounts receivable
are included in the Borrowing Base, a collections report, a sales report
and lockbox statements all certified by Borrower's principal financial
officer: (i) within fifteen (15) days after the end of each month, with
the Borrowing Base Certificate and reports being prepared as of the last
day of such month, (ii) during the period from and including May 16 to
and including November 15, on Tuesday of each week, with the Borrowing
Base Certificate and reports being prepared as of the immediately
preceding Saturday, and (iii) if a Default exists, within three days
after any other date requested by the Administrative Agent with the
Borrowing Base Certificate and such reports being prepared as of the date
of the request;
Section 2.4. Amendment to Section 5.06. Section 5.06 of the Agreement
is amended in its entirety to read as follows:
Section 5.06 Inspection of Property, Books and Records. The
Borrower will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower will permit, and will cause each of its Subsidiaries
to permit, representatives of the Administrative Agent, at Borrower's
expense to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records, to discuss
their respective affairs, finances and accounts with their respective officers
and independent public accountants and to otherwise conduct inventory
inspections, appraisals, collateral audits or other field examinations as
follows: (a) unless an Event of Default shall have occurred hereunder, the
Administrative Agent may not conduct more than two (2) field examinations in
any calendar year; (b) unless Borrowing Availability is less than $20,000,000
at any time during the period from and including November 16 to and including
May 15 or an Event of Default shall have occurred at any time, the
Administrative Agent may not conduct, and the Borrower shall not be obligated
to pay for, more than one appraisal of the Inventory each calendar year; and
(c) the exercise by the Administrative Agent of its rights under this sentence
shall require reasonable prior notice to the Borrower and shall be conducted
during normal business hours in a reasonable manner so as not to disrupt the
normal conduct of the Borrower's business. Notwithstanding anything contained
to the contrary herein or in any of the Loan Documents, upon the occurrence of
an Event of Default, the Administrative Agent may visit and inspect the
Borrower, any of its Subsidiaries and any of their respective properties in
order to examine and make abstracts from any of their respective books and
records, to discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants and to otherwise
conduct inventory inspections, appraisals, collateral audits or other
field examinations as often as may reasonably be desired. If Borrowing
Availability is less than $20,000,000 at any time during the period from
and including November 16 to and including May 15, then the Administrative
Agent may conduct one additional appraisal of the Inventory during such
year at the Borrower's expense. If an Event of Default shall have occurred
hereunder at any time, the Administrative Agent may conduct such number of
appraisals of the Inventory as it deems necessary in its reasonable sole
discretion and the Borrower shall be obligated to pay from all such
appraisals. In addition, Administrative Agent has the right at any time
and from time to time, at the Borrower's expense, to conduct routine and
periodic verifications as to the existence and condition of Accounts, in
each case without prior notice to or consent of Borrower and whether or
not a Default exists. In conducting the verifications hereunder, the
Administrative Agent will advise the parties contacted that the verification
is routine. The Administrative Agent will not conduct verifications of
Accounts under this Section 5.06 more frequently than is reasonably necessary.
Section 2.5. Amendment to Section 5.21. Clause (e) of Section 5.21 of
the Agreement is amended and restated in its entirety to read as follows:
(e) any other Prepayment which is not permitted by clause (d)
preceding but only if:
(i) no Default exists or would result;
(ii) if the Prepayment is made:
(A) during the period from and including May 16 to and
including November 15, then the sum of the following must equal or exceed
$25,000,000 as of the date of calculation (which date must not be more
than 30 days prior to the date of the Prepayment): (x) the most recent
Borrowing Base in effect on the calculation date; minus (y) the Committed
Exposure on the calculation date; minus (z) the amount of the Prepayment;
or
(B) during the period from and including November 16 to
and including May 15, then the sum of the following must equal or exceed
$50,000,000 as of the date of calculation (which date must not be more
than 30 days prior to the date of the Prepayment): (x) the most recent
Borrowing Base in effect on the calculation date; minus (y) the Committed
Exposure on the calculation date; minus (z) the amount of the Prepayment;
and
(iii) the Borrower shall have delivered to the Administrative
Agent a certificate certifying as to its compliance with the forgoing
clauses (i) and (ii) and shall show in reasonable detail the calculation
required by clause (ii).
Section 2.6. Amendment to Exhibits. Exhibit C [Form of Borrowing Base
Certificate] and Exhibit E [Form of Compliance Certificate] of the Agreement
are amended and restated in their respective entireties to read as Exhibits C
and E attached hereto.
ARTICLE III.
Conditions Precedent
Section 3.1. Conditions. The effectiveness of Article II of this
Amendment is subject to the satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received this Amendment
duly executed by the Borrower, the Guarantors and the Required Banks;
(b) The representations and warranties contained herein and in all
other Loan Documents, as amended hereby, shall be true and correct in all
material respects as of the date hereof as if made on the date hereof, except
for such representations and warranties limited by their terms to a specific
date;
(c) No Default shall exist; and
(d) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal matters
incident thereto shall be satisfactory to Administrative Agent and its legal
counsel, Jenkens & ▇▇▇▇▇▇▇▇▇, a Professional Corporation.
ARTICLE IV.
Miscellaneous
Section 4.1. Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement, and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower, the Agents and the Banks agree that the Agreement as
amended hereby and the other Loan Documents shall continue to be legal, valid,
binding and enforceable in accordance with their respective terms. For all
matters arising prior to the effective date of this Amendment, the Agreement
(as unmodified by this Amendment) shall control.
Section 4.2. Representations and Warranties; Release. The Borrower
hereby represents and warrants to the Agents and the Banks as follows: (a) no
Default exists, and (b) the representations and warranties set forth in the
Loan Documents are true and correct on and as of the date hereof with the same
effect as though made on and as of such date except with respect to any
representations and warranties limited by their terms to a specific date. IN
ADDITION, TO INDUCE THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE
BANKS TO AGREE TO THE TERMS OF THIS AMENDMENT, THE BORROWER AND EACH GUARANTOR
(BY ITS EXECUTION BELOW) REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS
EXECUTION OF THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR RIGHTS
OF RECOUPMENT WITH RESPECT TO OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS
UNDER THE LOAN DOCUMENTS.
Section 4.3. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan
Document including any Loan Document furnished in connection with this
Amendment shall survive the execution and delivery of this Amendment, and no
investigation by any Agent or any Bank or any closing shall affect the
representations and warranties or the right of the any Agent or any Bank to
rely upon them.
Section 4.4. Reference to Agreement. Each of the Loan Documents,
including the Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Agreement shall
mean a reference to the Agreement as amended hereby.
Section 4.5. Expenses of Administrative Agent. As provided in the
Agreement, Borrower agrees to pay on demand all reasonable costs and expenses
incurred by the Administrative Agent in connection with the preparation,
negotiation, and execution of this Amendment, including without limitation,
the reasonable costs and fees of the Administrative Agent's legal counsel
provided it sends an invoice to Borrower beforehand and addresses reasonable
questions.
Section 4.6. Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 4.7. Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York and the
applicable laws of the United States of America.
Section 4.8. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agents, each Bank, the Borrower, each
Guarantor and their respective successors and assigns, except neither Borrower
nor any Guarantor may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Banks.
Section 4.9. Counterparts. This Amendment may be executed in one or
more counterparts and on telecopy counterparts, each of which when so executed
shall be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 4.10. Effect of Waiver. No consent or waiver, express or
implied, by any Agent or any Bank to or for any breach of or deviation from
any covenant, condition or duty by the Borrower or any Guarantor shall be
deemed a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
Section 4.11. Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 4.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS
AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.13. Required Banks. Pursuant to Section 9.05 of the Agreement,
the Agreement may be modified as provided in this Amendment with the agreement
of the Required Banks which means Banks having (a) more than fifty percent
(50%) of the Commitments or (b) if the Commitments have been terminated, more
than fifty percent (50%) of the aggregate Committed Exposure (such percentage
applicable to a Bank, herein such Bank's "Required Bank Percentage"). For
purposes of determining the effectiveness of this Amendment, each Bank's
Required Bank Percentage is set forth on Schedule 4.13 hereto.
Executed as of the date first written above.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC., as the Borrower
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
JPMORGAN CHASE BANK, individually as a
Bank, an Issuing Bank and as Administrative
Agent
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK,
as Collateral Agent and a Bank
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
LASALLE BUSINESS CREDIT, L.L.C., successor
by merger to LaSalle Business Credit, Inc.
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
U. S. Bank business credit
(f/n/a Firstar Bank N.A.)
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/n/a First Union National Bank)
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
SIEMENS FINANCIAL SERVICES, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President - Cedit
CREDIT SUISSE FIRST BOSTON, Cayman Island
Branch
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By:/s/ ▇▇▇▇▇▇ Dudwig
------------------
Name: ▇▇▇▇▇▇ Dudwig
Title: Assistant Vice President
THE PROVIDENT BANK
By:/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Credit Officer
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President - Credit
CONSENT OF GUARANTORS AND REAFFIRMATION OF LOAN DOCUMENTS
Each of the Guarantors consent and agree to this Amendment (including
without limitation, the provisions of Section 4.2 hereof) and agree that the
Loan Documents to which it is a party shall remain in full force and effect
and shall continue to be the legal, valid and binding obligation of such
Guarantor enforceable against it in accordance with their respective terms.
FD MANAGEMENT, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. Marina
Title: Vice President
DF ENTERPRISES, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. Marina
Title: Vice President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL HOLDING, INC.,
(formerly FFI International, Inc.)
By:/s/ ▇▇▇▇▇ ▇. Marina
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
RDEN MANAGEMENT, INC.
By:/s/ ▇▇▇▇▇ ▇. Marina
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (FINANCING), INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. Marina
Title: Vice President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ TRAVEL RETAIL, INC.
By:/s/ ▇▇▇▇▇ ▇. Marina
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Index of Exhibits and Schedules
Exhibits
C Form of Borrowing Base Certificate
E Form of Compliance Certificate
Schedule
4.13 Required Lender Percentage
EXHIBIT C
to
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Form of Borrowing Base Certificate
BORROWING BASE CERTIFICATE
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Previously Faxed: Yes No (circle one)
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Company Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC. As of [ENTER DATE]
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--
Ffi Accounts Receivable
1. Total FFI Accounts Receivable per attached aging ............. $
----------
2. Less: Ineligible Accounts Receivables of Borrower
Consignment or similar sales $
-----------
Evidenced by chattel paper or note $
-----------
Insolvent or bankrupt account debtor $
-----------
Foreign account debtor $
-----------
In controversy $
-----------
Not subject to the Collateral Agent's lien $
-----------
Subject to other liens $
-----------
60 days past due $
-----------
120 days past invoice $
-----------
Government accounts $
-----------
Affiliate or related party $
-----------
50% Cross Aging Exclusion $
-----------
Not payable in Dollars $
-----------
Accounts excluded by Administrative Agent $
-----------
Amount of Contra Accounts and other offsets $
-----------
15% concentration exclusion $
-----------
3. Total Ineligibles ($
----------
4. Eligible Accounts Receivable (line 1 minus line 3) $
----------
5. Accounts Receivable Advance Rate
85%
6. Accounts Receivable Availability (Line 4 x Line 5) (A) $
==========
Eligible Finished Goods Inventory; Packaged
1. Total inventory of Borrower consisting of finished goods tracked on FFI
Accounting System which has been packaged:(lesser of fair market value or
cost of such inventory)
$
------------
2. Ineligible inventory consisting of finished goods packaged
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Finished Goods Inventory; Packaged (line 1 minus line 2)
$
------------
4. Advance Rate
%
------------
. From the period May 16 through November 15 = 75%
. From the period November 16 through May 15 = 65%
5. Packaged finished goods availability (line 3 x line 4)
$
------------
6. Cost of total packaged finished goods
$
------------
7. Net liquidation value as a percentage of gross
%
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5 or line 9
(B) $
============
Eligible Finished Goods Inventory; Un-packaged
1. Total inventory of Borrower consisting of finished goods tracked on FFI
Accounting System which have not been packaged:(lesser of fair market
value
or cost of such inventory)
$
------------
2. Ineligible inventory consisting of finished goods; un-packaged
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Un-packaged Finished Goods Inventory (line 1 minus line 2 )
$
------------
4. Un-packaged finished goods advance rate
40%
------------
5. Un-packaged finished goods availability (line 3 x line 4)
$
------------
6. Cost of Total un-packaged finished goods
$
------------
7. Net liquidation value as a percentage of gross
%
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5 or line 9
(C) $
============
Eligible Raw Material Inventory
1. Total inventory of Borrower consisting of raw material and work-in-process
tracked on FFI Accounting System:(lesser of fair market value or cost of
such inventory)
$
------------
2. Ineligible inventory consisting of raw material and work-in-process
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Raw Material Inventory (line 1 minus line 2)
$
------------
4. Raw material advance rate
25%
------------
5. Eligible Raw Material Inventory availability (line 3 x line 4)
$
------------
6. Cost of raw material and work-in- process
$
------------
7. Net liquidation value as a percentage of gross %
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5 or line 9
(D)
============
Arden Accounts Receivable
1. Total Domestic Arden Accounts Receivable per attached aging .............
$
----------
2. Less: Ineligible Arden Accounts Receivables of Borrower
Consignment or similar sales $
-----------
Evidenced by chattel paper or note $
-----------
Insolvent or bankrupt account debtor $
-----------
Foreign account debtor $
-----------
In controversy $
-----------
Not subject to the Collateral Agent's lien $
-----------
Subject to other liens $
-----------
60 days past due $
-----------
120 days past invoice $
-----------
Government accounts $
-----------
Affiliate or related party $
-----------
50% Cross Aging Exclusion $
-----------
Not payable in Dollars $
-----------
Accounts excluded by Administrative Agent $
-----------
Amount of Contra Accounts and other offsets $
-----------
15% concentration exclusion $
-----------
3. Total Ineligibles
($
----------
4. Eligible Accounts Receivable (line 1 minus line 3)
$
----------
5. Accounts Receivable Advance Rate
85%
----------
6. Accounts Receivable Availability (Line 4 x Line 5)
(E) $
==========
Eligible Arden Finished Goods Inventory; Packaged
1. Total Domestic Arden inventory:(lesser of fair market value or cost of
such inventory) $
------------
Less WIP (Category "I" & "B"
($ )
------------
Gross Raw Materials, Un-packaged finished goods and Finished Goods
$
2. Finished Goods Inventory Packaged (Category "F" & "W")
$
------------
3. Ineligible inventory consisting of packaged finished goods
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
4. Eligible Finished Goods Inventory Packaged (line 2 minus line 3)
$
------------
5. Advance Rate
%
------------
. From the period May 16 through November 15= 75%
. From the period November 16 through May 15= 65%
6. Packaged finished goods availability (line 4 x line 5)
$
------------
7. Cost of total Arden packaged finished goods
$
------------
8. Net liquidation value as a percentage of gross
%
------------
9 Net liquidation value (line 7 x line 8)
$
------------
10. 85% of net liquidation value (.85 x line 9)
------------
11. Lessor of line 10 or line 6
(F) $
============
Eligible Arden Finished Goods Inventory; Un-packaged
1. Total Un-packaged Arden Finished Inventory:(lesser of fair market value or
cost of such inventory)
$
------------
2. Ineligible inventory consisting of un-packaged finished goods
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Un-packaged finished goods inventory (line 1 minus line 2)
$
------------
4. Un-packaged finished goods advance rate
40%
------------
5. Un-packaged finished goods availability (line 3 x line 4)
$
------------
6. Cost of total un-packaged Arden finished goods
$
------------
7. Net liquidation value as a percentage of gross
%
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5 or line 9
(G) $
============
Eligible Arden Raw Material Inventory
1. Total raw material and work-in-process tracked on Arden Accounting System:
(lesser of fair market value or cost of such inventory)
$
------------
2. Ineligible inventory consisting of raw material and work-in-process
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Raw Material Inventory (line 1 minus line 2 )
$
------------
4. Eligible Raw Material Inventory advance rate (25%)
%
------------
5. Eligible Raw Material Inventory availability (line 3 x line 4)
$
------------
6. Cost of Arden raw material and work-in- process
$
------------
7. Net liquidation value as a percentage of gross
%
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5 or line 9
(H) $
============
Eligible Gift Inventory
1. Total inventory of Borrower consisting of gift given with purchased
merchandise in the ordinary course of Borrower's business or as
promotional
merchandise in the ordinary course of business:(lesser of fair market
value
or cost of such inventory)
$
------------
2. Ineligible inventory consisting of finished goods
Bad condition
$
--------------
Does not meet governmental standards $
--------------
Currently un-usable $
--------------
Currently un-saleable $
--------------
On consignment $
--------------
Excluded by Administrative Agent $
--------------
Not at Borrower's principal place
of business, at an Approved
Location, in transit between
Approved Locations, or if not
so located, no reserves for 3/rd/
party claims $
--------------
Promotional merchandise $
--------------
Gifts included in purchase merchandise $
--------------
Not Subject to Collateral Agent's Lien $
--------------
Subject to other liens $
--------------
Samples, displays and testers $
--------------
Subject to a restrictive licensing or
distribution agreement $
--------------
25% of Slow Moving Inventory $
--------------
Total ineligibles
($ )
------------
3. Eligible Gift Inventory (line 1 minus line 2)
$
------------
4. Gift Inventory advance rate
10%
------------
5. Eligible Gift Inventory Availability (line 3 x line 4)
$
------------
6. Cost of gift inventory
$
------------
7. Net liquidation value as a percentage of gross
%
------------
8. Net liquidation value (line 6 x line 7)
$
------------
9. 85% of net liquidation value (.85 x line 8)
------------
10. Lessor of line 5, line 9 or $500,000
(I) $
============
AVAILABLE COLLATERAL SUMMARY
A/R Availability (A+E): $
Plus: Inventory Availability (B+C+D+F+G+H+I) $
----
Plus: Cash collateral pledged $
----
Less: ACCOUNT RECEIVABLE:
----
Allowance Accounts $
Customer Markdowns $
Destroyed-in-field $
Others $
Total
($ )
Less: BANK PRODUCT RESERVE
($ )
----
Less: INVENTORY RESERVES:
----
Inventory outside of USA or Puerto Rico $
Classified as long term $
Inventory in transit $
Capitalized costs $
Third party claims $
Other $
($ )
BORROWING BASE:
$
TOTAL AVAILABILITY (Lesser of $200,000,000 or Borrowing Base)
$
Committed EXPOSURE:
Swingline Loans $
Other Loans $
Letter of Credit Exposure $
Other Obligations $
TOTAL
($ )
BORROWING AVAILABILITY (Total Availability-Committed Exposure):
$
------------------------------------------------------------------------------
This Borrowing Base Certificate is delivered by the undersigned to JPMorgan
Chase Bank, in its capacity as Administrative Agent (the "Agent") pursuant to
that certain Second Amended and Restated Credit Agreement dated as of December
24, 2002 (as amended, the "Agreement") among the undersigned, the Agent, Fleet
National Bank as collateral agent and certain other parties named therein.
Terms defined by the Agreement are incorporated herein by reference where
applicable. The undersigned represents and certifies that this Borrowing Base
Certificate is true and correct in every respect and that all existing
Accounts and Inventory, referenced above for inclusion in the Borrowing Base,
represent Eligible Accounts Receivables and eligible Inventory of the type
described in accordance with the definitions set forth in the Agreement. The
undersigned warrants that all collections received or credits allowed on
Accounts reported on previous Borrowing Base Certificates have been duly and
regularly entered to the credit of the respective account debtors on the books
and records of the undersigned and that all collections have been remitted and
that all credits have been reported to date to the Administrative Agent as
required by the Agreement. In the event of any conflict between the terms of
this Borrowing Base Certificate and the Agreement, the terms of the Agreement
shall control.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
EXHIBIT E
to
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Form of Compliance Certificate
COMPLIANCE CERTIFICATE
Effective as of __________, 200_ (the "Effective Date")
(last day of fiscal year or fiscal period, as applicable)
Reference is made to the certain Second Amended and Restated Credit Agreement
dated as of December 24, 2002, among ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("Borrower"),
JPMorgan Chase Bank, as Administrative Agent for the Banks as provided therein
("Administrative Agent"), and each of the Banks from time to time party
thereto
(as such agreement may be amended or otherwise modified from time to time, the
"Credit Agreement"). Unless otherwise defined herein, capitalized terms used
this Compliance Certificate that are defined in the Credit Agreement, wherever
used herein, shall have the same meanings as are prescribed by the Credit
Agreement. In the event of any conflict between the terms of this Compliance
Certificate and the Credit Agreement, the Credit Agreement shall control. The
undersigned, duly appointed and acting authorized signatory of the Borrower,
being duly authorized, hereby delivers this Compliance Certificate to
Administrative Agent pursuant to Section 5.01 of the Credit Agreement.
1. Borrower hereby delivers to Administrative Agent (check as applicable):
[__] Copies of the audited financial statements required by Section
5.01(a) for Borrower's fiscal year ending on the Effective Date.
[__] Copies of the financial statements required by Section 5.01(b) for
Borrower's fiscal quarter ending on the Effective Date.
Such financial statements are complete and correct in all material respects
and
have been prepared in accordance with the requirements of the Credit
Agreement.
2. Exhibit "A" attached hereto sets forth the calculation of the Debt
Service
Pricing Ratio and the corresponding percentages for the Applicable Margin,
Applicable Letter of Credit Fee, and the Commitment Fee Rate
3. Exhibit "B" attached hereto sets forth the status of compliance with the
covenant contained in Section 5.19 ("Minimum Quarterly Debt Coverage Ratio"),
as
of the Effective Date, calculated for the applicable period as required by the
Credit Agreement.
4. The undersigned hereby states that (check as applicable):
[__] No Default exists as of the Delivery Date.
[__] One or more Defaults have occurred or exist as of the Delivery
Date.
Included within Exhibit "C" attached hereto is a written
description
specifying each such Default or Event of Default, its nature, when
it
occurred, whether it is continuing as of the date hereof, and the
steps being taken by the Borrower with respect thereto. Except as
so
specified, no Default exists as of the Delivery Date.
5. The undersigned hereby states that all Material Subsidiaries that are
required to be Guarantors by the terms of the Credit Agreement are Guarantors
under the Guarantee Agreement.
Executed and delivered by the undersigned on ___________, 200_ (the "Delivery
Date").
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By:____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT "A"
to
COMPLIANCE CERTIFICATE
by
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
Effective Date: ____________, 200_
Debt Service Pricing Ratio
The following is attached to and made a part of the above referenced
Compliance
Certificate:
The Debt Service Pricing Ratio calculated as of the fiscal quarter ending
_________, 200_ was ___ to 1.0:
Cash Flow
(a) Consolidated EBITDA $
-----------
(b) Capital Expenditures which were not
financed with Indebtedness permitted
under clauses (viii), (ix) or (x) of
the definition of Permitted
Indebtedness $
-----------
(c) Cash taxes $
-----------
(d) Sum of (a) - (b) - (c) $
-----------
Modified Debt Service
(e) Interest Expense $
-----------
(f) Deduction from Interest Expense ($ )
$7,834,400 for three months ended
6/30/04
$3,835,800 for FQE 9/31/04
$1,024,200 for FQE 12/31/04
Regularly scheduled principal
(g) payments in respect of Indebtedness $
-----------
Regularly scheduled principal
payments in respect 8.5% Subordinated
(h) Notes and 8.84% Mortgage Notes ($ )
-----------
(i) Dividends $
-----------
(j) Sum of (e) - (f) + (g) - (h) + (i) $
-----------
Debt Service Pricing Ratio = (d) / (i) = ____ to 1.0
------------------------------------------------------------------------------
Base
Commitment Fee
Tier Debt Service Pricing Ratio LIBOR Loans Rate
Loans Rate
------------------------------------------------------------------------------
I Greater than 3.50:1.00 200 25
25
------------------------------------------------------------------------------
II Less than or equal to 3.50:1.00 but 225 50
37.5
greater than 2.75:1.00
------------------------------------------------------------------------------
III Less than or equal to 2.75:1.00 but 250 75
37.5
greater than 1.75:1.00
------------------------------------------------------------------------------
IV Less than or equal to 1.75:1.00 275 100
50
------------------------------------------------------------------------------
Based on the foregoing table:
(i) Applicable Margin for LIBOR Loans _____(bps)
(ii) Applicable Margin for Base Rate Loans _____(bps)
(iii) Commitment Fee Rate _____(bps)
(iv) Applicable Letter of Credit Fee: _____(bps)
EXHIBIT "B"
to
COMPLIANCE CERTIFICATE
by
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
Effective Date: ____________, ____
Minimum Quarterly Debt Coverage Ratio
The following is attached to and made a part of the above referenced
Compliance
Certificate:
1. Average Borrowing Base Capacity determination.
As of the Effective Date, is the Average Borrowing Base Capacity as
calculated for the 30 day period then ended (as detailed on an attached
schedule) equal to or less than $50,000,000. Yes_______ No _______
If yes, Borrower must be in compliance with the Minimum Quarterly Debt
Coverage Ratio below.
2. Section 5.19 ("Minimum Debt Coverage Ratio")
The ratio of Cash Flow to Debt Service, calculated as of the Effective
Date
for the twelve month period ending on such date was ___ to 1.0 (as set
forth below).
Cash Flow
(a) Consolidated EBITDA $
---------
(b) Capital Expenditures which were not
financed with Indebtedness permitted
under clauses (viii), (ix) or (x) of
the definition of Permitted Indebtedness $
---------
(c) Cash taxes $
---------
(d) Sum of (a) - (b) - (c) $
---------
Debt Service
(e) Interest Expense $
---------
Regularly scheduled principal
(f) payments in respect of Indebtedness $
---------
(g) Dividends $
---------
(h) Sum of (e) + (f) + (g) $
---------
Debt Service Ratio = (d) / (h) = ____ to 1.0
Credit Agreement requires that it be not less than
1.10 to 1.0. Compliance? Yes No
EXHIBIT "C"
to
COMPLIANCE CERTIFICATE
by
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
Effective Date: ____________, ____
Defaults
The following is attached to and made a part of the foregoing Compliance
Certificate:
1. As of the Delivery Date, each of the following instances of a Default has
occurred (describe):
2. Applicable Section(s) of Credit Agreement:
3. Date of first occurrence:
4. Check as applicable: The above referenced Default(s)
[___] continue(s) in existence on the Delivery Date
[___] do/does not continue to exist on the Delivery Date
5. The following steps have been and are being taken with respect to the
foregoing:
Schedule 4.13
to
Second Amendment to Credit Agreement
REQUIRED LENDER PERCENTAGE
==============================================================================
Lenders Agreeing to Amendment
(insert % from prior column if Lender
Required Lender
signs this Amendment then total
Lender Commitment Percentage Held
percentages in this column)
==============================================================================
JPMorgan Chase Bank $ 45,250,000.00 22.625%
22.625%
------------------------------------------------------------------------------
Fleet National Bank $ 35,000,000.00 17.500%
17.500%
------------------------------------------------------------------------------
LaSalle Business Credit, Inc. $ 25,000,000.00 12.500%
12.500%
------------------------------------------------------------------------------
U. S. Bank Business Credit $ 20,000,000.00 10.000%
10.000%
------------------------------------------------------------------------------
General Electric Capital Corporation $ 28,500,000.00 14.250%
14.250%
------------------------------------------------------------------------------
Wachovia Bank, National Association $ 15,000,000.00 7.500%
7.500%
-----------------------------------------------------------------------------
Siemens Financial Services, Inc. $ 11,250,000.00 5.625%
5.625%
-----------------------------------------------------------------------------
Credit Suisse First Boston $ 10,000,000.00 5.000%
5.000%
-----------------------------------------------------------------------------
The Provident Bank $ 10,000,000.00 5.000%
5.000%
=============================================================================
TOTAL $ 200,000,000.00 100.00%
100.00%
=============================================================================