EXHIBIT 10.13
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (this "AMENDMENT"), dated as of March 1, 2001,
to that certain Revolving Credit Agreement, dated as of August 20, 1998 (as
amended to the date hereof, the "CREDIT AGREEMENT"), among EVENFLO COMPANY,
INC., a Delaware corporation (the "BORROWER"), the Guarantors party thereto, the
Lenders party thereto (the "LENDERS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as Lead Arranger and Syndication Agent, DLJ
CAPITAL FUNDING, INC., as Documentation Agent, and BANK OF AMERICA, NATIONAL
ASSOCIATION (successor in interest to BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION), as Administrative Agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
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WHEREAS, pursuant to Section 11.01 of the Credit Agreement,
each of the Obligors and each of the undersigned Lenders hereby agree to amend
certain provisions of the Credit Agreement as set forth herein (the Credit
Agreement, as amended pursuant to the terms of this Amendment, being referred to
as the "AMENDED CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE: Definitions.
(a) CERTAIN DEFINITIONS. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural thereof):
"ADMINISTRATIVE AGENT" has the meaning specified in the
PREAMBLE hereto.
"AMENDED CREDIT AGREEMENT" has the meaning specified in the
RECITALS hereto.
"AMENDMENT" has the meaning specified in the PREAMBLE hereto.
"AMENDMENT EFFECTIVE DATE CERTIFICATE" means the amendment
effective date certificate executed and delivered by the Borrower pursuant to
Section Three hereto, substantially in the form of ANNEX I hereto.
"BORROWER" has the meaning specified in the PREAMBLE hereto.
"CREDIT AGREEMENT" has the meaning specified in the PREAMBLE
hereto.
"LENDERS" has the meaning specified in the PREAMBLE hereto.
(b) OTHER DEFINITIONS. Terms for which meanings are provided
in the Amended Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
SECTION TWO: AMENDMENTS.
(a) AMENDMENTS TO DEFINITIONS. Subject to the conditions
set forth in Section Three below, Section 1.01 of the Credit Agreement
designated "Certain Defined Terms" is amended by:
(i) inserting in such section the following
definitions in appropriate alphabetical order:
"DESIGNATED PERFORMANCE TRIGGER EVENT" shall mean, for any
Test Period, the Leverage Ratio being less than or equal to 4.00:1:00.
"DESIGNATED PERFORMANCE TRIGGER EVENT CERTIFICATE" shall mean
a certificate substantially in the form of ANNEX II to the Second Amendment.
"EQUIPMENT" shall mean all of the Borrower's and each of the
other Obligor's now owned and hereafter acquired equipment, machinery, computers
and computer hardware and software (whether owned or licensed), tools,
furniture, fixtures, all attachments, accessions and property new or hereafter
affixed thereto or used in connection therewith, and substitutions and
replacements thereof, wherever located.
"FIXED ASSETS" shall mean, with respect to any Obligor, any
and all Real Property or Equipment of such Obligor.
"NON-FIXED ASSETS" shall mean, with respect to any Obligor,
any and all assets or properties of such Obligor other than Fixed Assets.
"REAL PROPERTY" shall mean all now owned and hereafter
acquired real property of Borrower or any other Obligor, including any and all
leasehold interests, together with all buildings, structures, and other
improvements located thereon and all licenses, easements and appurtenances
relating thereto, wherever located.
"REAL PROPERTY/EQUIPMENT PERFECTION CERTIFICATE" means the
certificate evidencing that Borrower and the other Obligors have provided the
Administrative Agent with valid, binding, enforceable and perfected security
interests in, and liens upon, all of the Real Property and Equipment in
accordance with Section 7.15(c) hereof, which certificate shall be executed and
delivered by the Obligors and shall be substantially in the form of ANNEX III to
the Second Amendment.
"SECOND AMENDMENT" means Amendment No. 2, dated as of
March 1, 2001, to this Agreement.
"SECOND AMENDMENT EFFECTIVE DATE" has the meaning specified in
the Second Amendment.
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(ii) deleting the chart in the definition of "Applicable
Margin" and replacing it with the following:
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EURODOLLAR RATE
LEVERAGE RATIO MARGIN BASE RATE MARGIN COMMITMENT FEES
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< 3.0:1.0 2.000% 0.750% 0.300%
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< 3.5:1.0 but 3.0:1.0 2.250% 1.000% 0.300%
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< 4.0:1.0 but 3.5:1.0 2.500% 1.250% 0.375%
------------------------------------------------------------------------------------------------------------------------
< 4.5:1.0 but 4.0:1.0 2.750% 1.500% 0.375%
------------------------------------------------------------------------------------------------------------------------
< 5.0:1.0 but 4.5:1.0 3.000% 1.750% 0.425%
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5.0:1.0 3.250% 2.000% 0.500%
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(iii) amending and restating subclauses (vii) and (viii)
in the definition of "Consolidated EBITDA" as subclause (vii) as
follows:
"(vii) non-cash and non-recurring charges;
PROVIDED that such charges shall be limited
to only those charges directly attributable
to (w) the execution of the Second
Amendment, (x) the write-off of transaction
costs capitalized prior to the execution of
the Second Amendment, (y) the write-off of
intangibles and fixed assets, and (z) the
costs of restructuring, consolidating or
closing of plants together with the costs of
severance or other similar payments relating
to the termination of employees at such
plants or any other plant or office of any
of the Obligors not to exceed in the
aggregate $5,000,000 during any Test
Period"; and
(b) AMENDMENTS TO SECTION 2.01. Subject to the conditions
set forth in Section Three below, Section 2.01 of the Credit Agreement
designated "Amounts and Terms of Commitments" is amended by inserting the
following sentence at the end of clause (a) thereof:
"Notwithstanding anything in this Agreement, any Loan
Document or otherwise, from and after the Second
Amendment Effective Date the aggregate principal
amount of all outstanding Revolving Loans PLUS all
outstanding Swing Line Loans PLUS all outstanding
Special Facility Obligations shall not exceed at any
time $95,000,000 LESS the aggregate amount of Net
Disposition Proceeds realized by Borrower or any
Restricted Subsidiary after the Second Amendment
Effective Date that is required under Section 2.08(a)
to be applied to reduce the outstanding Revolving
Loans, unless the Designated Performance Trigger
Event has occurred for the most recently completed
Test Period (and a Designated
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Performance Trigger Event Certificate duly executed
by a Responsible Officer has been furnished to the
Administrative Agent in connection therewith)."
(c) AMENDMENTS TO SECTION 2.08. Subject to the conditions
set forth in Section Three below, Section 2.08 of the Credit Agreement
designated "Mandatory Prepayments of Revolving Loans and Reductions of
Commitments" is amended by amending clause (a) thereof by:
(i) deleting the word "If" at the beginning thereof
and inserting in replacement thereof "Prior to the Second Amendment
Effective Date, if" at the beginning thereof; and
(ii) adding the following at the end thereof:
"From and after the Second Amendment
Effective Date, (i) if Borrower or any Restricted
Subsidiary shall at any time make a Disposition of a
Non-Fixed Asset (other than (I) a Disposition
permitted pursuant to clause (a), (b) or (c) of
Section 8.02 or (II) Dispositions generating Net
Proceeds of less than $50,000 in the aggregate for
all such Dispositions for any Fiscal Year less the
amount of Disposition Proceeds generated by
Dispositions of Fixed Assets referred to in subclause
(II) in the parenthetical contained in Section
2.08(a)(iii) hereof for such Fiscal Year), then
Borrower or such Restricted Subsidiary shall,
concurrently with the receipt of the Net Disposition
Proceeds of such Non-Fixed Asset, apply 100% of the
Net Disposition Proceeds of such Non-Fixed Asset to
immediately reduce the outstanding Revolving Loans
and permanently reduce the Revolving Commitments in
accordance with Section 2.08(c) in an aggregate
amount equal to such Net Disposition Proceeds; (ii)
if the Borrower or any Restricted Subsidiary shall at
any time make a Disposition of a Fixed Asset (other
than a Disposition permitted pursuant to clause (a),
(b) or (c) of Section 8.02) and (A) the Designated
Performance Trigger Event has occurred for the most
recently completed Test Period, (B) no Event of
Default or payment Default has occurred and is then
continuing and (C) a Designated Performance Trigger
Event Certificate duly executed by a Responsible
Officer has been furnished to the Administrative
Agent, then (x) Borrower or such Restricted
Subsidiary may, within 360 days after the receipt by
Borrower or such Restricted Subsidiary of the Net
Disposition Proceeds of such Disposition of Fixed
Assets, (A) reinvest (subject to Section 8.03) up to
100% of such Net Disposition Proceeds in the
businesses described in Section 7.13 (including,
subject to the provisions of clause (h) of Section
8.03, making an Acquisition in such businesses) or
(B) retain the amount of such Net Disposition
Proceeds not so applied pending such application, and
(y) to the extent such Net Disposition Proceeds are
not so applied during such 360-day period, such Net
Disposition Proceeds shall immediately reduce the
outstanding Revolving Loans and permanently reduce
the Revolving
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Commitments in accordance with Section 2.08(c) in an
aggregate amount equal to the portion of such Net
Disposition Proceeds not so applied; and (iii) if the
Borrower or any Restricted Subsidiary shall at any time
make a Disposition of a Fixed Asset (other than (I) a
Disposition permitted pursuant to clause (a), (b) or
(c) of Section 8.02 or (II) Dispositions generating Net
Proceeds of less than $50,000 in the aggregate for all
such Dispositions for any Fiscal Year less the amount
of Disposition Proceeds generated by Dispositions of
Non-Fixed Assets referred to in subclause (II) in the
parenthetical contained in Section 2.08(a)(i) hereof
for such Fiscal Year) and the Designated Performance
Trigger Event has not occurred, then (x) Borrower or
such Restricted Subsidiary shall, concurrently with the
receipt of the Net Disposition Proceeds of such Fixed
Asset, apply the first $5,000,000 and 50% of the
balance of the Net Disposition Proceeds of such Fixed
Asset to prepay the outstanding Revolving Loans in
accordance with Section 2.08(d) without permanently
reducing the Revolving Commitments and (y) (A) reinvest
(subject to Section 8.03) up to 50% of the balance of
such Net Disposition Proceeds (after applying the first
$5,000,000 and 50% of the balance of such Net
Disposition Proceeds in accordance with the immediately
preceding clause (x)) in the businesses described in
Section 7.13 (including, subject to the provisions of
clause (h) of Section 8.03, making an Acquisition in
such businesses), unless at the time of such
reinvestment an Event of Default or payment Default has
occurred and is then continuing (except in the case
where Borrower or such Restricted Subsidiary is subject
to a definitive agreement that has been duly and fully
executed at a time when no Event of Default or payment
Default existed and pursuant to which it is obligated
to use such Net Disposition Proceeds for a purpose
permitted by this Section 2.08(a)) or (B) retain the
amount of such Net Disposition Proceeds not so applied
pending such application, and (z) to the extent such
Net Disposition Proceeds are not so applied during such
360-day period, such Net Disposition Proceeds shall
immediately reduce the outstanding Revolving Loans and
permanently reduce the Revolving Commitments in
accordance with Section 2.08(c) in an aggregate amount
equal to the portion of such Net Disposition Proceeds
not so applied."
(d) AMENDMENTS TO SECTION 7.01. Subject to the conditions set
forth in Section Three below, Section 7.01 of the Credit Agreement designated
"Financial Statements" is amended by:
(i) deleting the word "and" at the end of clause (a)
thereof;
(ii) deleting the period at the end of clause (b) thereof
and inserting in replacement thereof "; and"; and
(iii) adding at the end thereof a new clause (c) as
follows:
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"(c) promptly after available, but not later than 30
days after the end of each month of each Fiscal Year
(other than with respect to any month at the end of any
Fiscal Quarter or at the end of any Fiscal Year), a
copy of the unaudited consolidated balance sheet of
Borrower and the Restricted Subsidiaries as of the end
of such month and the related consolidated statements
of earnings, cash flows and, to the extent prepared,
shareholders' equity for the period commencing on the
first day and ending on the last day of such month, and
certified by a Responsible Officer of Borrower as
fairly presenting in all material respects, in
accordance with GAAP (subject to year-end audit
adjustments), the financial position and the results of
operations of Borrower and the Restricted Subsidiaries
as of the date thereof (together with a comparison of
such monthly financial results against the Projections
prepared by the Borrower and provided to the
Administrative Agent and the Lenders, including an
explanation, in reasonable detail, of any variances
therefrom)."
(e) AMENDMENTS TO SECTION 7.15. Subject to the conditions set
forth in Section Three below, Section 7.15 of the Credit Agreement designated
"Pledged Stock of Foreign Subsidiaries; Post-Closing Collateral Matters" is
amended by inserting a new clause (c) at the end thereof as follows:
"(c) EQUIPMENT; REAL PROPERTY. Within 90 days after the
Second Amendment Effective Date, the Borrower shall,
and shall cause its Subsidiaries to, deliver to the
Administrative Agent duly executed security
documentation and mortgages (together with the Real
Property/Equipment Perfection Certificate and any other
documents and instruments as may be reasonably
requested by the Administrative Agent), which shall
create valid, binding, enforceable and perfected liens
upon, and security interests in, all of the Obligors'
Equipment and Real Property located in the United
States (other than with respect to such Real Property
or Equipment that the Administrative Agent has
determined, in its sole and absolute discretion, it is
not commercially practical to take such liens and
security interests), accompanied by appropriate legal
opinions of outside counsel to the Borrower in respect
of such collateral and appropriate title insurance, in
each case, reasonably satisfactory in form and
substance to the Administrative Agent, all at the
Borrower's sole expense. Without limitation on any of
the foregoing, Borrower shall reimburse the
Administrative Agent for the cost and expense of
conducting environmental audits and appraisals on any
Real Properties that may be conducted by or on behalf
of the Administrative Agent."
(f) AMENDMENTS TO SECTION 8.01. Subject to the conditions set
forth in Section Three below, Section 8.01 of the Credit Agreement designated
"Limitation on Liens" is amended by:
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(i) deleting the Dollar amount "$25,000,000" in clause (q)
thereof and inserting in replacement thereof "$2,000,000";
(ii) deleting the Dollar amount "$10,000,000" in clause
(r) thereof and inserting in replacement thereof "$5,000,000"; and
(iii) deleting the Dollar amount "$20,000,000" in
clause (t) thereof and inserting in replacement thereof "$5,000,000."
(g) AMENDMENTS TO SECTION 8.02. Subject to the conditions set
forth in Section Three below, Section 8.02 of the Credit Agreement designated
"Consolidations and Mergers; Sale of Assets" is amended by:
(i) deleting the Dollar amount "$20,000,000" in clause
(c) thereof and inserting in replacement thereof "$5,000,000"; and
(ii) deleting the Dollar amount "$50,000,000" in clause
(d) thereof and inserting in replacement thereof "$30,000,000".
(h) AMENDMENTS TO SECTION 8.03. Subject to the conditions set
forth in Section Three below, Section 8.03 of the Credit Agreement designated
"Loans, Acquisitions and Investments" is amended by:
(i) deleting the Dollar amount "$20,000,000" in clause
(c) thereof and inserting in replacement thereof "$10,000,000";
(ii) deleting clause (h) thereof and inserting in
replacement thereof:
"(h) Intentionally Deleted"; and
(iii) deleting the words "in the sum of (i) $15,000,000
plus (ii)" from clause (i) thereof:
(i) AMENDMENTS TO SECTION 8.04. Subject to the conditions set
forth in Section Three below, Section 8.04 of the Credit Agreement designated
"Limitation on Indebtedness" is amended by:
(i) deleting the Dollar amount "$20,000,000" in clause
(d) thereof and inserting in replacement thereof "$5,000,000";
(ii) deleting the Dollar amount "$20,000,000" in clause
(f) thereof and inserting in replacement thereof "$2,000,000";
(iii) deleting the Dollar amount "$20,000,000" in
clause (g) thereof and inserting in replacement thereof "$5,000,000";
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(iv) deleting the Dollar amount "$20,000,000" and the
ratio "5.0:1.0" in clause (i) thereof and inserting in replacement
thereof "$5,000,000" and "4.0:1.0", respectively;
(v) deleting the Dollar amount "$20,000,000" and the
ratio "5.0:1.0" in clause (j) thereof and inserting in replacement
thereof "$5,000,000" and "4.0:1.0", respectively;
(j) AMENDMENTS TO SECTION 8.06. Subject to the conditions set
forth in Section Three below, Section 8.06 of the Credit Agreement designated
"Financial Covenants" is amended
(i) by deleting that portion of the chart in clause (a)
thereof after September 30, 2000 and replacing it with the following:
DATE RATIO
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December 31, 2000 1.10:1.00
March 31, 2001 0.90:1.00
June 30, 2001 0.90:1.00
September 30, 2001 0.95:1.00
December 31, 2001 1.15:1.00
March 31, 2002 1.15:1.00
June 30, 2002 1.15:1.00
September 30, 2002 1.15:1.00
December 31, 2002 1.30:1.00
March 31, 2003 1.30:1.00
June 30, 2003 1.30:1.00
September 30, 2003 1.30:1.00
December 31, 2003 1.60:1.00
March 31, 2004 1.60:1.00
June 30, 2004 1.60:1.00
September 30, 2004 1.60:1.00
December 31, 2004 and the last
day of each December, March,
June and September thereafter 1.90:1.00
; and
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(ii) by deleting that portion of the chart in
clause (b) thereof after September 30, 2000 and replacing it with the
following:
DATE RATIO
---- -----
December 31, 2000 8.25:1.00
March 31, 2001 8.50:1.00
June 30, 2001 8.20:1.00
September 30, 2001 7.20:1.00
December 31, 2001 6.00:1.00
March 31, 2002 6.00:1.00
June 30, 2002 6.00:1.00
September 30, 2002 6.00:1.00
December 31, 2002 5.50:1.00
March 31, 2003 5.50:1.00
June 30, 2003 5.50:1.00
September 30, 2003 5.50:1.00
December 31, 2003 4.75:1.00
March 31, 2004 4.75:1.00
June 30, 2004 4.75:1.00
September 30, 2004 4.75:1.00
December 31, 2004 and the last day of each
December, March, June and September
thereafter 4.25:1.00
(k) AMENDMENTS TO SECTION 8.07. Subject to the conditions set
forth in Section Three below, Section 8.07 of the Credit Agreement designated
"Capital Expenditures" is amended by:
(i) amending clause (a) thereof by (x) inserting the
words "Prior to the Second Amendment Effective Date," at the beginning
thereof; and (y) adding the following at the end thereof:
"From and after the Second Amendment
Effective Date, the Borrower shall not, and shall not
permit any Restricted Subsidiary to, make any Capital
Expenditures that would cause the aggregate amount of
all Capital Expenditures made by the Borrower and the
Restricted Subsidiaries (A) in the 2001 Fiscal Year
of Borrower to exceed an amount equal to $13,500,000
PLUS the amount of any Net Disposition Proceeds not
used to reduce the outstanding Revolving Loans or
permanently reduce the Revolving Commitments pursuant
to Section 2.08; and (B) in each Fiscal Year
thereafter to exceed an amount equal to the greater
of (x) $10,000,000 PLUS the amount of any Net
Disposition Proceeds not used to reduce the
outstanding Revolving Loans or permanently reduce the
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Revolving Commitments pursuant to Section 2.08 or
(y) the amount by which Consolidated EBITDA for the
immediately preceding Fiscal Year exceeds
Consolidated Interest Expense for the immediately
preceding Fiscal Year PLUS the amount of any Net
Disposition Proceeds not used to reduce the
outstanding Revolving Loans or permanently reduce
the Revolving Commitment.";
(ii) amending clause (b) thereof by deleting the word
"Notwithstanding" at the beginning thereof and inserting in replacement
thereof "Prior to the Second Amendment Effective Date, notwithstanding"
at the beginning thereof; and
(iii) amending clause (c) thereof by inserting
immediately after the words "during any Fiscal Year" in the third line
thereof the words "occurring after the Second Amendment Effective
Date".
(l) AMENDMENTS TO SECTION 10.11. Subject to the conditions set
forth in Section Three below, Section 10.11 of the Credit Agreement designated
"Collateral Matters" is amended by adding at the end thereof a new clause (c)
as follows:
"(c) Without limitation on any of Borrower's other
obligations under this Agreement, Borrower hereby agrees to
reimburse the Administrative Agent, on demand, for the cost
and expense of asset-based field examinations conducted by or
on behalf of the Administrative Agent with respect to all of
the collateral on a semi-annual basis."
SECTION THREE: CONDITIONS TO EFFECTIVENESS. This Amendment, and the
amendments and modifications contained herein, shall be and become effective
on the date (the "SECOND AMENDMENT EFFECTIVE DATE") when each of the
conditions set forth in this Section Three shall have been fulfilled to the
satisfaction of the Administrative Agent.
(a) EXECUTION OF COUNTERPARTS. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of each Obligor and each of the Required Lenders.
(b) RESOLUTIONS; INCUMBENCY. The Administrative Agent shall
have received copies of the resolutions of the board of directors of each
Obligor authorizing the execution, delivery and performance of this
Amendment, each other Loan Document to be delivered by any Obligor in
connection herewith and the transactions contemplated hereby and thereby,
certified as of the Second Amendment Effective Date by the Secretary or an
Assistant Secretary of each such Obligor, together with a certificate of the
Secretary or Assistant Secretary of each Obligor dated the Second Amendment
Effective Date, certifying the names and true signatures of the officers of
each Obligor authorized to execute, deliver and perform, as applicable, this
Amendment, and such other Loan Documents to be delivered by it in connection
herewith.
(c) ORGANIZATION DOCUMENTS. The Administrative Agent shall have
received the articles or certificates of incorporation and the bylaws of each
of Obligors for which such documents have not previously been delivered and
certified, in each case, as in effect on the Second Amendment Effective Date,
certified by the Secretary or Assistant Secretary of such
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Person as of the Second Amendment Effective Date, together with a
certification that any documents that were previously delivered are in full
force and effect and have not, since the date of such delivery, been amended.
(d) APPROVALS. All necessary material governmental,
shareholders' and third-party approvals in connection with the execution,
delivery and performance of this Amendment and the other Loan Documents
delivered in connection herewith.
(e) AMENDMENT EFFECTIVE DATE CERTIFICATE. The Administrative
Agent shall have received the Amendment Effective Date Certificate, dated the
Second Amendment Effective Date and duly executed and delivered by a
Responsible Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct (in all material respects) representations and warranties of
the Borrower made as of such date, and, at the time each such certificate is
delivered, such statements shall in fact be true and correct.
(f) LEGAL OPINIONS. The Administrative Agent shall have
received a favorable legal opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
to the Obligors and (ii) the General Counsel to the Borrower, in each case,
addressed to the Administrative Agent and the Lenders and dated the Second
Amendment Effective Date, substantially in the forms of Annex A-1 and Annex
A-2, respectively.
(g) AMENDMENT FEE. The Administrative Agent shall have
received, for the benefit of each Lender actually approving this Second
Amendment by duly executing the signature pages hereto on or prior to March
14, 2001, an amendment fee equal to 0.25% of the Commitment of such Lender.
(h) STRUCTURING FEE. The Administrative Agent shall have
received, for its own account, the non-refundable structuring fee required to
be paid to it in accordance with the Side Letter, dated as of March 1, 2001
on or prior to the Second Amendment Effective Date.
(i) FEES AND EXPENSES. The Administrative Agent shall have
received all expenses due and payable pursuant to Section Six hereof and
pursuant to the Credit Agreement (including all previously invoiced fees and
expenses).
SECTION FOUR: REPRESENTATIONS AND WARRANTIES; COVENANTS. In order to
induce the Lenders and the Agents to enter into this Amendment, each Obligor
represents and warrants to each of the Lenders and the Agents that, after
giving effect to this Amendment, (a) no Default or Event of Default has
occurred and is continuing; and (b) all of the representations and warranties
in the Credit Agreement are true and complete in all material respects on and
as of the date hereof as if made on the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
SECTION FIVE: REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
NOTES. On and after the Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each
of the other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
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and be a reference to the Credit Agreement, as amended by this Amendment. The
Credit Agreement, the Notes and each of the other Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of any Lender or any Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents. This Amendment is a
Loan Document executed pursuant to the Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Credit Agreement (and, following the date hereof, the
Amended Credit Agreement). Any breach of any representation or warranty or
covenant or agreement contained in this Amendment shall be deemed to be an
Event of Default for all purposes of the Credit Agreement and the other Loan
Documents. Each Guarantor ratifies and confirms its Guarantee as in full
force and effect after giving effect to the amendments herein set forth and
to any prior amendment or waiver to the Credit Agreement.
SECTION SIX: COSTS, EXPENSES AND TAXES. Borrower agrees to pay all
reasonable costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, if any (including,
without limitation, the reasonable fees and expenses of Wachtell, Lipton,
▇▇▇▇▇ & ▇▇▇▇) in accordance with the terms of Section 11.04 of the Credit
Agreement. In addition, Borrower shall pay or reimburse any and all stamp and
other taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and
documents to be delivered hereunder, if any, and agrees to save each Agent
and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes.
SECTION SEVEN: FURTHER ASSURANCES. The Borrower hereby agrees that it
will take any action that from time to time may be reasonably necessary to
effectuate the agreements contemplated herein.
SECTION EIGHT: HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions thereof.
SECTION NINE: EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION TEN: SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION ELEVEN: NO THIRD PARTIES BENEFITED. This Amendment is made and
entered into for the sole protection and legal benefit of the Borrower, the
Lenders, each Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be
-12-
a direct or indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with, this Amendment or any of the
other Loan Documents.
SECTION TWELVE: GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW).
-13-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER:
EVENFLO COMPANY, INC.
By:
-------------------------------------
Name:
Title:
GUARANTORS:
LISCO FURNITURE, INC.
By:
-------------------------------------
Name:
Title:
LISCO FEEDING, INC.
By:
-------------------------------------
Name:
Title:
AGENT:
BANK OF AMERICA, NATIONAL
ASSOCIATION (successor in interest to
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION),
as Administrative Agent
By:
-------------------------------------
Name:
Title:
S-1
LENDERS:
BANK OF AMERICA, NATIONAL
ASSOCIATION (successor in interest to
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION),
as Fronting Lender and as a Lender
By:
-------------------------------------
Name:
Title:
S-2
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & CO., as a Lender
By:
-------------------------------------
Name:
Title:
S-3
HIGHLAND CAPITAL MANAGEMENT, LP, as a Lender
By:
-------------------------------------
Name:
Title:
S-4
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION.,
as a Lender
By:
-------------------------------------
Name:
Title:
S-5
BANK OF AMERICA, N.A., as a Lender
By:
-------------------------------------
Name:
Title:
S-6
TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
By:
-------------------------------------
Name:
Title:
▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:
-------------------------------------
Name:
Title:
S-8
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:
-------------------------------------
Name:
Title:
S-9
SOVEREIGN BANK, as a Lender
By:
-------------------------------------
Name:
Title:
S-10
ML CBO IV (Cayman) Ltd., as a Lender
By:
-------------------------------------
Name:
Title:
▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
as a Lender
By:
-------------------------------------
Name:
Title:
S-12