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EXHIBIT 10.1
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment"),
dated as of July 26, 2000, but effective as of July 3, 2000, is entered into
among HOME INTERIORS & GIFTS, INC., a Texas corporation (the "Borrower"), the
institutions listed on the signature pages hereof that are parties to the Credit
Agreement defined below (collectively, the "Lenders"), THE CHASE MANHATTAN BANK,
as syndication agent (in said capacity, the "Syndication Agent"), NATIONAL
WESTMINSTER BANK, PLC , as documentation agent (the "Documentation Agent'), THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA, as a co-agent, SOCIETE GENERALE, as a
co-agent, CITICORP USA. INC., as a co-agent (collectively, the "Co-Agents'), and
BANK OF AMERICA, N.A., formerly known as NationsBank, N.A., as administrative
agent (in said capacity, the "Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders, the Documentation Agent, the Syndication
Agent, the Co-Agents, and the Administrative Agent are parties to that certain
Credit Agreement, dated as of June 4, 1998, as amended by that certain First
Amendment to Credit Agreement, dated as of December 18, 1998, that certain
Second Amendment to Credit Agreement dated as of March 12, 1999, and that
certain Third Amendment to Credit Agreement, dated as of November 19, 1999 (said
Credit Agreement, as amended, the "Credit Agreement"; the terms defined in the
Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
B. The Borrower, the Lenders, the Documentation Agent, the Syndication
Agent, the Co-Agents, and the Administrative Agent desire to make certain
amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Documentation Agent, the Syndication Agent, the Co-Agents, and the
Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Revolving Credit Commitment" set forth in
Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Revolving Credit Commitment" means $40,000,000, as reduced or
terminated pursuant to Sections 2.6 or 8.2 hereof, and as may be
increased pursuant to Section 2.17 hereof.
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(b) The definition of "Revolving Credit Specified Percentage" set forth
in Section 1.1 of the Credit Agreement is hereby amended to read as follows:
"Revolving Credit Specified Percentage" means, as to any
Lender, the percentage indicated beside its name on Schedule 1 hereto
as its Revolving Credit Specified Percentage, or as adjusted or
specified in any amendment to this Agreement, in any Assignment
Agreement, or as a result of any increase in the Revolving Credit
Commitment pursuant to Section 2.17 hereof.
(c) The definition of "Subsidiary" set forth in Section 1.1 of the
Credit Agreement is hereby amended by deleting the last sentence from the end
thereof.
(d) The definition of "Total Debt" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
"Total Debt" means, as of any date of determination,
determined for the Borrower and its Subsidiaries on a consolidated
basis, without duplication, (a) indebtedness for borrowed money, (b)
obligations evidenced by bonds, debentures, notes or similar
instruments, (c) obligations to pay the deferred purchase price of
property or services other than trade payables incurred in the ordinary
course of business, (d) Capitalized Lease Obligations, and (e) the face
amount of all letters of credit (other than documentary letters of
credit and standby letters of credit in aggregate face amount not in
excess of $5,000,000) and, without duplication, all unreimbursed
amounts drawn thereunder; provided that to the extent the Borrower has
cash-collateralized any letters of credit, the amount of such letters
of credit secured by cash collateral shall not be included in this
clause (e).
(e) The definition of "Total Specified Percentage" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Total Specified Percentage" means, as to any Lender, the
percentage indicated beside its name on Schedule 1 hereto as its Total
Specified Percentage, or as adjusted or specified in any amendment to
this Agreement, in any Assignment Agreement, or as a result of any
increase in the Revolving Credit Commitment pursuant to Section 2.17
hereof, as adjusted to account for any permanent reductions in the
Revolving Credit Commitment and any payments of Facility A Term Loan
Advances or Facility B Term Loan Advances which result in a reduction
of the outstanding Facility A Term Loan Advances or outstanding
Facility B Term Loan Advances.
(f) Section 2.16(a) of the Credit Agreement is hereby amended by
amending the first sentence thereof to read as follows:
The Borrower may request the Issuing Bank, on the terms and
conditions hereinafter set forth, to issue, and the Issuing Bank shall,
if so requested, issue, letters of credit to be
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denominated in Dollars (the "Letters of Credit") for the account of the
Borrower or for the joint account of the Borrower and any of its
Subsidiaries from time to time on any Business Day from the date of the
initial Advance until the Revolving Commitment Maturity Date in an
aggregate maximum amount (assuming compliance with all conditions to
drawing) not to exceed, at any time outstanding, the lesser of (i)
$30,000,000 (the "Letter of Credit Facility") and (ii) the sum of (A)
the Revolving Credit Commitment, minus (B) the aggregate principal
amount of Revolving Credit Advances and Swing Line Advances then
outstanding.
(g) Article 2 of the Credit Agreement is hereby amended by adding a new
Section 2.17 thereto to read as follows:
Section 2.17 Revolving Credit Commitment Increase.
(a) Amount and Timing of Increases. Upon written request by
the Borrower to the Administrative Agent not less than ten Business
Days prior to the proposed effective date of the proposed increase (or,
in the case of each proposed Lender, such lesser notice as any proposed
Lender is willing to accept), subject to the further terms and
conditions set forth below, the Borrower shall be entitled to increase
the Revolving Credit Commitment not more than three times, in an
aggregate amount for such increases not to exceed $30,000,000. Each of
the proposed increases shall be in an aggregate minimum amount of
$5,000,000 and $5,000,000 multiples thereof.
(b) Mechanics of Increases. Upon the Agent's receipt of the
notice referred to in Section 2.17(a), the Agent shall immediately make
an offer to the Lenders to elect to participate in such increase. Each
Lender electing to participate in such Revolving Credit Commitment
increase shall commit to an amount not less than $2,000,000 but shall
accept any allocation amount designated by the Borrower and the
Administrative Agent that is equal to or less than its proposed portion
of the Revolving Credit Commitment increase. Notwithstanding anything
herein or in any other Loan Document to the contrary, the Borrower and
the Administrative Agent may agree to add other creditors in connection
with any such proposed increase (without any further notice obligations
to the existing Lenders and without retriggering the timing
requirements set forth in Section 2.17(a)) if one or more of the
existing Lenders having a Revolving Credit Specified Percentage do not
elect to increase their respective portions of the Revolving Credit
Commitment in an amount equal to the requested Revolving Credit
Commitment increase within five Business Days after the Borrower
requests such increase pursuant to Section 2.17(a). If requested, each
Lender (including any new Lenders party hereto) shall upon the
surrender of any then-existing Revolving Credit Note held by such
Lender receive a new Revolving Credit Note evidencing its Revolving
Credit Specified Percentage, as adjusted.
(c) Conditions to Increase. The following conditions to the
increase of the Revolving Credit Commitment shall have been satisfied
or waived to the Administrative Agent's reasonable satisfaction:
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(i) On any date of proposed increase in the Revolving
Credit Commitment, the representations and warranties
contained in Article IV hereof are true and correct on such
date in all material respects, as though made on and as of
such date, except to the extent expressly made only as of a
prior date;
(ii) On any date of a proposed increase in the
Revolving Credit Commitment, no Default or Event of Default
shall exist on any such date, and no Default or Event of
Default would result from such increase in the Revolving
Credit Commitment and the subsequent Revolving Credit Advances
to the Borrower, up to the amount of the Revolving Credit
Commitment (as increased);
(iii) The Administrative Agent shall have received a
certificate from the Borrower to the effect that (A) such
increase has received all Necessary Authorizations, if
necessary, and is in compliance with all material Applicable
Laws, (ii) no other approvals or consents from any Person are
required by any such Person except to the extent they have
been received or are immaterial, and (iii) such increase in
the Revolving Credit Commitment does not conflict with, or
result in violation of, any material agreement or instrument
to which the Borrower or any of its Subsidiaries, or any of
their respective properties, is subject;
(iv) The Administrative Agent shall have delivered to
each Lender evidence of new Revolving Credit Specified
Percentages and Total Specified Percentages adjusted to give
effect to the increase in the Revolving Credit Commitment and
any reallocation required in order for each Lender with a
Revolving Credit Specified Percentage to have a proportionate
share of the Revolving Credit Advances;
(v) Each new Lender being added to this Agreement
shall deliver to the Borrower and the Administrative Agent
documentation acceptable to the Administrative Agent
evidencing such new Lender's acceptance of this Agreement and
all the other Loan Documents in form and substance reasonably
acceptable to the Administrative Agent (and making such Lender
a party to this Agreement and the other Loan Documents);
(vi) The Administrative Agent on behalf of each
Lender shall have received all amendments to any Loan
Documents as the Administrative Agent shall deem reasonably
necessary; and
(vii) The Administrative Agent shall have delivered
to the Borrower a notice of the cost of any LIBOR breakage or
other costs incurred by any Lender as a result of such
increase and any reallocation among the Lenders, and the
Borrower shall pay such costs on the date of such increase in
immediately available funds to the Administrative Agent on
behalf of such Lenders in accordance with the terms of the
Credit Agreement.
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(d) Additional Agreements. Each Lender shall have the right
(but not the obligation) to increase the dollar amount of its share of
the Revolving Credit Commitment. In connection with any increase to the
Revolving Credit Commitment in accordance with the terms of this
Section 2.17, each existing Lender (regardless of whether such Lender
is participating in such increase) and the Borrower and its
Subsidiaries agrees to execute any and all agreements reasonably
requested by the Administrative Agent to effectuate the intent of this
Section 2.17. Notwithstanding anything contained herein to the
contrary, the limitations placed upon assignments set forth in Section
11.6 shall not apply to proposed increases pursuant to this Section.
(h) Section 7.1(c) of the Credit Agreement is hereby amended to read as
follows:
(c) Indebtedness, including in respect of Capitalized Lease
Obligations, incurred to purchase, or to finance the purchase of assets
which constitute property, plant and equipment, not to exceed
$30,000,000 in aggregate principal amount outstanding at any time;
(i) Section 7.3 of the Credit Agreement is hereby amended by revising
the introductory language therein immediately preceding clause (a) thereof as
follows:
The Borrower shall not, and shall not permit any of its
Subsidiaries to, make any Investment, except that the Borrower and its
Subsidiaries may make, purchase or otherwise acquire and own:
(j) Section 7.3(d) of the Credit Agreement is hereby amended to read as
follows:
(d) Investments in (i) Domestic Subsidiaries (or Persons that
become Domestic Subsidiaries simultaneously with such Investment) (A)
which have executed a Subsidiary Guaranty and Collateral Documents
granting a first priority Lien in all unencumbered assets of such
Subsidiary required by the Determining Lenders to be pledged, to secure
the Obligations, (B) 100% of whose Capital Stock shall be pledged to
secure the Obligations and (C) which have delivered to the Lenders such
board resolutions, officer's certificates, corporate and other
documents and opinions of counsel as the Administrative Agent shall
reasonably request, (ii) direct Foreign Subsidiaries 65% of whose
Capital Stock shall be pledged to secure the Obligations, (iii)
indirect Foreign Subsidiaries not to exceed $15,000,000 in aggregate
amount outstanding at any time, and (iv) the Borrower (including, in
each of clauses (i), (ii) and (iii) any new Subsidiary);
(k) Section 7.3(k) of the Credit Agreement is hereby amended to read as
follows:
(k) Investments in respect of Candle Making Joint Venture not
to exceed $6,000,000 in aggregate amount prior to satisfaction of the
requirements set forth in the first sentence of Section 5.12 hereof
with respect to Candle Making Joint Venture becoming a Domestic
Subsidiary;
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(l) Schedule 5 of the Credit Agreement is hereby amended to be in the
form of Schedule 5 to this Fourth Amendment.
(m) Schedule 8 of the Credit Agreement is hereby amended to be in the
form of Schedule 8 to this Fourth Amendment.
(n) Exhibit E, Compliance Certificate, to the Credit Agreement is
hereby amended to be in the form of Exhibit E to this Fourth Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendment contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement (other than those representations and warranties that specifically
relate to an earlier date) and the other Loan Documents are true and correct in
all material respects on and as of the date hereof as made on and as of such
date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) the Borrower has full corporate power and authority to execute and
deliver this Fourth Amendment, and this Fourth Amendment constitutes the legal,
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
Debtor Relief Laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Fourth
Amendment nor the consummation of any transactions contemplated herein will
conflict with any material Applicable Law, the articles of incorporation, bylaws
or other governance document of the Borrower or any of its Subsidiaries, or any
material indenture, agreement or other instrument to which the Borrower or any
of its Subsidiaries or any of their respective property may be bound;
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person (other than the Board
of Directors of the Borrower or any Guarantor), is required for the execution,
delivery or performance by the Borrower of this Fourth Amendment or the
acknowledgment of this Fourth Amendment by any Guarantor other than (i) those
approvals and consents already obtained, and (ii) consents under immaterial
contractual obligations; and
(f) the total amount of Indebtedness which may be outstanding under the
Credit Agreement as a result of any increase in the Revolving Credit Commitment
pursuant to Section 2.17
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of the Credit Agreement will at all times be "Permitted Indebtedness" as such
term is defined in the Senior Subordinated Notes Indenture.
3. CONDITIONS OF EFFECTIVENESS. This Fourth Amendment shall be
effective as of July 3, 2000, subject to the following:
(a) the Administrative Agent shall receive counterparts of this Fourth
Amendment executed by the Determining Lenders;
(b) the Administrative Agent shall receive counterparts of this Fourth
Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Agent shall have received a certified resolution
of the Board of Directors of the Borrower authorizing the execution, delivery
and performance of this Fourth Amendment;
(d) the Administrative Agent shall have received an opinion of counsel
to the Borrower, in form and substance satisfactory to the Administrative Agent,
with respect to the matters set forth in Sections 2(c), (d) and (e) of this
Fourth Amendment; and
(e) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall reasonably
require.
4. AMENDMENT FEE. Provided this Fourth Amendment becomes effective, the
Borrower covenants and agrees to pay an amendment fee to the Administrative
Agent on behalf of the Lenders which execute and deliver this Fourth Amendment
to the Administrative Agent (or its counsel) not later than 5:00 p.m., Dallas
time, July 26, 2000 in an amount equal to the product of (a) 0.125% multiplied
by (b)(i) with respect to each Lender having a portion of the Revolving Credit
Commitment, an amount equal to such Lender's portion of the Revolving Credit
Commitment and (ii) with respect to each Lender which is owed Facility A Term
Loan Advances or Facility B Term Loan Advances, the aggregate principal amount
of Facility A Term Loan Advances and Facility B Term Loan Advances owed to such
Lender on the date of this Fourth Amendment. Such amendment fee shall be paid in
immediately available funds and shall be due and payable to each Lender eligible
for payment pursuant to the preceding sentence no later than two Business Days
after the date which this Fourth Amendment becomes effective. The Borrower
agrees that the failure to pay the amendment fee provided in this Section 4
shall be an Event of Default under Section 8.1(b)(ii) of the Credit Agreement.
5. STRUCTURING FEE. Provided this Fourth Amendment becomes effective,
the Borrower covenants and agrees to pay to the Administrative Agent a
structuring fee in an amount agreed to by the Administrative Agent and the
Borrower. The structuring fee shall be paid in immediately available funds and
shall be due and payable to the Administrative Agent no later than
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two Business Days after the date which this Fourth Amendment becomes effective.
The Borrower agrees that the failure to pay the structuring fee provided in this
Section 5 shall be an Event of Default under Section 8.1(b) (ii) of the Credit
Agreement.
6. GUARANTOR ACKNOWLEDGMENT. By signing below, each of the Guarantors
(i) acknowledges, consents and agrees to the execution and delivery of this
Fourth Amendment, (ii) acknowledges and agrees that its obligations in respect
of its Subsidiary Guaranty (a) are not released, diminished, waived, modified,
impaired or affected in any manner by this Fourth Amendment or any of the
provisions contemplated herein and (b) cover, among other things, any increase
in the Revolving Credit Commitment as provided for in this Fourth Amendment,
(iii) ratifies and confirms its obligations under its Subsidiary Guaranty, and
(iv) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, its Subsidiary Guaranty solely as a result of the
execution and delivery of this Fourth Amendment.
7. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Fourth Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this Fourth
Amendment.
(b) The Credit Agreement, as amended by this Fourth Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
8. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent in connection with the preparation, negotiation, execution and delivery of
this Fourth Amendment and the other instruments and documents to be delivered
hereunder and with respect to advising the Administrative Agent as to its rights
and responsibilities under the Credit Agreement, as amended by this Fourth
Amendment).
9. EXECUTION IN COUNTERPARTS. This Fourth Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
10. GOVERNING LAW: BINDING EFFECT. This Fourth Amendment shall be
governed by and construed in accordance with the Laws of the State of Texas
without regard to the principles of the conflicts of Laws and the applicable
federal Laws and shall be binding upon the Borrower, the Administrative Agent,
the Syndication Agent, the Documentation Agent and each Lender and their
respective successors and assigns.
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11. HEADINGS. Section headings in this Fourth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fourth Amendment for any other purpose.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FOURTH
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as the date first above written.
HOME INTERIORS & GIFTS, INC.
By: /s/ KENNETH CICHOCKI
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Name: Kenneth Cichocki
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Title: Vice President of Finance & CFO
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BANK OF AMERICA, N.A., as Administrative Agent
and as a Lender
By:
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Name:
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Title:
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THE CHASE MANHATTAN BANK, as Syndication Agent and as a
Lender
By:
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Name:
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Title:
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as Co-Agent and
as a Lender
By:
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Name:
---------------------------------
Title:
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SOCIETE GENERALE, as Co-Agent and as a Lender
By:
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Name:
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Title:
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CITICORP USA, INC., as Co-Agent and as a Lender
By:
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Name:
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Title:
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BANK ONE, TEXAS, N.A.
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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BHF (USA) CAPITAL CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
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Title:
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HELLER FINANCIAL, INC.
By:
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Name:
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Title:
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NATIONAL CITY BANK OF KENTUCKY
By:
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Name:
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Title:
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BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) CAPITAL CORPORATION, acting as
attorney-in-fact
By:
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Name:
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Title:
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By:
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Name:
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Title:
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KZH ING-2 LLC
By:
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Name:
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Title:
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DELANO COMPANY
By: Pacific Investment Management Company, as its
Investment Advisor
By:
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Name:
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Title:
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VAN KAMPEN CLO II, LIMITED
By: Van Kampen American Capital Management, Inc., as
Collateral Manager
By:
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Name:
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Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment
Manager
By:
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Name:
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Title:
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as General Partner
By:
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Name:
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Title:
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By: TCW Investment Management Company, as Investment
Manager
By:
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Name:
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Title:
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TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd., as General Partner
By:
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Name:
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Title:
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By: TCW Investment Management Company, as Investment
Manager
By:
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Name:
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Title:
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CAPTIVA III FINANCE LTD., as advised by Pacific Investment
Management Company
By:
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Name:
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Title:
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ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC
as Collateral Manager
By:
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Name:
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Title:
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UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
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Title:
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SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
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Name:
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Title:
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EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management, as Investment Advisor
By:
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Name:
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Title:
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EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as Investment Advisor
By:
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Name:
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Title:
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ARCHIMEDES FUNDING III LTD.
By: ING Capital Advisors LLC
as Collateral Manager
By:
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Name:
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Title:
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COMPASS BANK
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
DALLAS WOODCRAFT, INC., a Texas corporation
GIA, INC., a Nebraska corporation
HOMCO, INC., a Texas corporation
By: /s/ KENNETH J. CICHOCKI
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Name: Kenneth J. Cichocki
---------------------------------
Title: Vice President
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HOMCO PUERTO RICO, INC., a Delaware corporation
SPRING VALLEY SCENTS, INC., a Texas corporation
By: /s/ KENNETH J. CICHOCKI
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Name: Kenneth J. Cichocki
---------------------------------
Title: Vice President
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