BANKBOSTON, N.A. (f/k/a The First National Bank of Boston), as Agent
100 Federal Street
Boston, MA 02110
May 21, 1997
Allou Health & Beauty Care, Inc.
and its Subsidiaries
50 Emjay Boulevard
Brentwood, NY 11717
Re: Fifth Amendment to Second Restated and Amended Revolving
Credit and Security Agreement, dated as of June 6, 1996
-------------------------------------------------------
Gentlemen:
Reference is made to the Second Restated and Amended Revolving Credit
and Security Agreement (as amended from time to time, the "Agreement"), dated as
of June 6, 1996 among Allou Health & Beauty Care, Inc. (the "Parent") and Allou
Distributors, Inc. ("Distributors") (collectively, including Subsidiaries of the
Parent and Distributors who have executed and delivered that certain Subsidiary
Tie-In Agreement dated December 10, 1991, as amended from time to time, the
"Borrowers"), BankBoston, N.A. (f/k/a The First National Bank of Boston), IBJ
Schroder Bank & Trust Company, Sanwa Business Credit Corporation, Lasalle
Business Credit, Inc. and The Bank of Tokyo - Mitsubishi Trust Company
(collectively the "Lenders"), and The First National Bank of Boston as Agent for
the Lenders (the "Agent"). Capitalized terms used and not otherwise defined
herein shall have the same respective meanings herein as set forth in the
Agreement.
You have requested that the Agreement be amended (i) to increase the
Maximum Amount set forth in Section 1.49 to $110,000,000.00, and (ii) to reflect
the addition of Bank Leumi Trust Company of New York ("BLT") as a Lender.
Accordingly, in consideration of these premises, the promises, mutual
covenants and agreements contained in this Amendment, and fully intending to be
legally bound by this Amendment, we hereby agree with you as follows:
1. AMENDMENTS TO AGREEMENT. In compliance with the terms of Section 10.8
of the Agreement:
1.1 (i) The first sentence of the preamble to the Agreement is hereby
amended to read as follows after zip code "10116-3138": ",BANK LEUMI TRUST
COMPANY OF NEW YORK ('BLT'), 562 Fifth Avenue, New York, New York, 10036; and
BKB as agent for the Lenders (the 'Agent')."
(ii) The second sentence of the preamble to the Agreement
is hereby amended to read as follows after "LBC": ", BOT and BLT are hereafter
referred to collectively as the 'Lenders'."
1.2 Section 1.20 of the Agreement is hereby amended to read in its
entirety as follows:
"1.20 'Commitment Percentage' shall mean in relation to each Lender
the percentage set forth opposite its name below:
Lender Percentage
------ ----------
BKB 31.8181820%
SBC 24.5454545%
IBJS 12.7272728%
LBC 18.1818182%
BOT 8.1818181%
BLT 4.5454545%
----------
100%"
11.3 Section 1.49 of the Agreement is hereby amended to read in its
entirety as follows:
"1.49 'Maximum Amount' shall mean $110,000,000.00."
1.4 Section 1.65 of the Agreement is hereby amended to read in its
entirety as follows:
"1.65 'Revolving Credit Commitment' shall mean, in relation to each
of the Lenders, the maximum amount of Revolving Loans that such Lender shall be
committed to make to the Borrowers upon the terms and subject to the conditions
contained in this Agreement, which amount shall be equal to the product of the
Maximum Amount times such Lender's Commitment Percentage (i.e. for BKB:
$110,000,000 x 31.8181820% = $35,000,000; for SBC: $110,000,000 x 24.5454545% =
$27,000,000; for IBJS: $110,000,000 x 12.7272728% = $14,000,000; for LBC
$110,000,000 x 18.1818182% = $ 20,000,000; for BOT: $110,000,000 x 8.1818181% =
$9,000,000 and for BLT $110,000,000 x 4.5454545% =$5,000,000)."
1.5 The Agreement is hereby amended to include Section 4.5 as follows:
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"4.5 Heter Iska. This Agreement is being entered into by BLT in accordance
with BLT's heter iska."
1.6 Section 10.1 of the Agreement is hereby amended to read as follows
after "Attn: Christopher Young, Vice President": "(vi) if to BLT to it at 562
Fifth Avenue, New York, New York 10036 Attn: Paul Tine, Vice President or such
other officers as may be designated by the Agreement or the Lenders. Any notice,
unless otherwise specified, may be given orally or in writing."
2. CONDITIONS PRECEDENT TO THIS AMENDMENT. The Agreements of the Lenders
set forth in this Amendment are subject to the receipt by (i) the Agent, on
behalf of the Lenders, and (ii) BLT, respectively, of the following in form and
substance satisfactory to the respective recipient and duly executed and
delivered by the Borrowers:
(a) BLT shall have received a Second Restated and Amended Revolving
Credit Note in the form of Exhibit A attached hereto;
(b) The Agent shall have received multiple counterparts of an
Amendment to Guaranty and Subsidiary Tie-In Agreement in the form of Exhibit B
attached hereto in sufficient numbers for itself and each of the other Lenders;
(c) The Agent shall have received certified copies of resolutions of
the Borrowers' respective boards of directors, in sufficient numbers for itself
and each of the other Lenders, evidencing the due authorization of this
Amendment and the entering into of the transactions contemplated hereby;
(d) The Agent shall have received certificates as of the date hereof
signed by the Secretary of each of the Borrowers regarding the incumbency and
true signature of the officers authorized to sign this Amendment in sufficient
numbers for itself and each of the other Lenders; and
(e) The Agent shall have received multiple counterparts of a
favorable legal opinion addressed to the Agent and each of the Lenders from
Parker Chapin, Flattau and Klimpl, LLP, counsel to the Borrowers, in sufficient
quantities for itself and each of the other Lenders.
3. GENERAL.
3.1 The Agreement is hereby ratified and confirmed and shall continue
in full force and effect as amended hereby.
3.2 The Borrowers hereby represent and warrant that there is no
default or Event of Default outstanding or continuing under the Agreement or any
instrument or document executed in connection with the Agreement, or any event
or condition which with the giving of notice or the passage of time, or both,
would result in a default or an
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Event of Default under the Agreement or any instrument or document executed in
connection with the Agreement.
3.3 This Amendment may be signed in any number of counterparts with
the same effect as if the signatures hereto and thereto were upon the same
instrument.
3.4 Allou Personal Care Corporation, M. Sobol, Inc., Superbuy of New
York, In., Rona Beauty Supplies, Inc., Hempstead Health & Beauty Aids, Inc.,
Pastel Cosmetic and Beauty Aids, Inc., HBA National Sales Corp., HBA
Distributors, Inc., Russ Kalvin Personal Care Corporation, Stanford Personal
Care Manufacturing, Inc., and Cosmetic Plus Two, Inc. are each executing and
delivering this Amendment as a Borrower pursuant to the terms of the Subsidiary
Tie-In Agreement, as amended through the date hereof.
If the foregoing sets forth your understanding of the matters
addressed herein, please evidence your agreement by countersigning this
Amendment in the space set forth
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below, whereupon this Amendment shall take effect as an agreement under seal as
of the day first written above.
THE FIRST NATIONAL BANK OF BOSTON
By:/s/
--------------------------------
Title: Vice President
IBJ SCHRODER BANK & TRUST COMPANY
By:/s/
--------------------------------
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION
By:/s/
--------------------------------
Title: Vice President
LASALLE BUSINESS CREDIT, INC.
By:/s/
--------------------------------
Title: First Vice President
THE BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By:/s/ Amanda S. Ryan
--------------------------------
Title: Vice President
BANK LEUMI TRUST COMPANY OF NEW
YORK
By:/s/
--------------------------------
Title: First Vice President,
Vice President
(Signatures continued on next page)
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ALLOU HEALTH & BEAUTY CARE, INC.
ALLOU DISTRIBUTORS, INC.
ALLOU PERSONAL CARE CORPORATION
M. SOBOL, INC.
SUPERBUY OF NEW YORK, INC.
RONA BEAUTY SUPPLIES, INC.
HEMPSTEAD HEALTH & BEAUTY AIDS, INC.
PASTEL COSMETIC AND BEAUTY AIDS, INC.
HBA NATIONAL SALES CORP.
HBA DISTRIBUTORS, INC.
RUSS KALVIN PERSONAL CARE CORP.
STANFORD PERSONAL CARE MANUFACTURING, INC.
COSMETIC PLUS TWO, INC.
By:/s/David Shamilzadeh
-----------------------------
Title: Senior Vice President, CFO
CONSENT OF GUARANTORS
Each of Victor Jacobs, Herman Jacobs and Jacob Jacobs (collectively,
the "Guarantors") has guaranteed certain of the Obligations under the Agreement
by executing separate Limited Guaranties dated as of December 10, 1991
(collectively, as amended, the "Guaranties"). By executing this letter, each of
the Guarantors hereby absolutely and unconditionally reaffirms the Guaranty to
which he is a party, and acknowledges and agrees to the terms and conditions of
this Amendment and the Agreement as so amended.
/s/ Victor Jacobs
--------------------------------
Victor Jacobs
/s/ Jacob Jacobs
--------------------------------
Jacob Jacobs
/s/ Herman Jacobs
--------------------------------
Herman Jacobs
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EXHIBIT A
---------
Second Restated and Amended Revolving Credit Note
-------------------------------------------------
$5,000,000.00 Boston, Massachusetts
May 21, 1997
FOR VALUE RECEIVED, the undersigned hereby absolutely and
unconditionally, jointly and severally, promise to pay to Bank Leumi Trust
Company of New York, a national bank with its head office at 562 Fifth Avenue,
NewYork, New York 10036 (the "Lender"), or order, on the Maturity Date, the
principal amount of Five Million and 00/100 Dollars ($5,000,000.00) or, if less,
the aggregate unpaid principal amount of all Revolving Loans and other advances
made by the Lender to the Borrowers pursuant to the Agreement (as hereinafter
defined) and noted on the records of the Agent in accordance with the terms of
the Agreement, together with interest (computed on the basis of the actual
number of days elapsed over a 360-day year) on the unpaid principal amount
hereof until paid in full at the times and rates set forth in the Agreement
referred to below.
All payments under this Note shall be made at the head office of the
Agent at 100 Federal Street, Boston, Massachusetts 02110 (or at such other place
as the Agent may designate from time to time in writing) in lawful money of the
United States of America in federal or other immediately available funds. The
Borrowers may prepay this Note in whole or in part at any time subject to the
terms and conditions set forth in the Agreement. Amounts so paid and other
amounts may be borrowed and reborrowed by the Borrowers hereunder from time to
time as provided in the Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and
is subject to the provisions of a certain Second Restated and Amended Revolving
Credit and Security Agreement, dated June 6, 1996 (as amended from time to
time), among the undersigned, the Lender, BankBoston, N.A. (f/k/a The First
National Bank of Boston), IBJ Schroder Bank and Trust Company, Sanwa Business
Credit Corporation, LaSalle Business Credit, Inc., Bank of Tokyo - Mitsubishi
Trust Company, and BankBoston, N.A. as Agent (herein, as the same may from time
to time have been or may be amended, restated or extended, referred to as the
"Agreement"), but neither this reference to the Agreement nor any provision
thereof shall affect or impair the absolute and unconditional joint and several
obligation of each of the undersigned makers of this Note to pay the principal
of and interest on this Note as herein provided. All capitalized terms used
herein shall have the meanings set forth herein or in the Agreement.
Upon an Event of Default, the aggregate unpaid balance of principal
plus accrued interest may become or may be declared to be due and payable in the
manner and with the effect provided in the Agreement.
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Except as may otherwise be provided in the Agreement, each of the
undersigned makers of this Note, hereby waives presentment, demand, notice of
dishonor, protest and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note.
WITNESS the execution of this Note under seal on the date written
above.
ALLOU DISTRIBUTORS, INC.
By:
--------------------------------
Title:
ALLOU HEALTH & BEAUTY CARE, INC.
By:
--------------------------------
Title:
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EXHIBIT B
---------
AMENDMENT TO GUARANTY AND SUBSIDIARY TIE-IN AGREEMENT
-----------------------------------------------------
THIS AMENDMENT TO GUARANTY AND SUBSIDIARY TIE-IN AGREEMENT, made as
of May 21 1997, among the undersigned Borrowers and Guarantors, is for the
benefit of the Lenders and Agent. All capitalized terms used herein which are
not otherwise defined herein shall have the same meanings herein as ascribed to
them in the Second Restated and Amended Revolving Credit and Security Agreement,
dated as of June 6, 1996, as amended from time to time, among the undersigned
Borrowers, the Agent and the Lenders (the "Loan Agreement").
WITNESSETH:
WHEREAS, the Borrowers, the Agent and the Lenders have previously
executed and delivered that certain Revolving Credit and Security Agreement,
dated December 10, 1991, as amended and restated by the Restated and Amended
Revolving Credit and Security Agreement, dated as May 9, 1994, as further
amended as of August 24, 1994, March 23, 1995, August 7, 1995, October 2, 1995,
February 27, 1996 and March 12, 1996 (as so amended, the "Prior Loan
Agreement");
WHEREAS, as contemplated by the terms of the Prior Loan Agreement and
the Loan Agreement, the Borrowers executed and delivered with the Lenders that
certain Subsidiary Tie-In Agreement, dated as of December 10, 1991, as amended
from time to time (as amended, the "Subsidiary Tie-In Agreement");
WHEREAS, also as contemplated by the terms of the Prior Loan
Agreement and the Loan Agreement, the Guarantors executed and delivered those
certain Limited Guaranties, dated as of December 10, 1991, as amended from time
to time (as amended, individually, a "Guaranty" and collectively, the
"Guaranties"); and
WHEREAS, the Fifth Amendment to the Loan Agreement is a continuation
of the Loan Agreement and further amends the Loan Agreement to increase the
Maximum Amount to $110,000,000.00 and to reflect the addition of Bank Leumi
Trust Company of New York as one of the Lenders.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Borrowers and the Guarantors
hereby agree as follows:
1. From and after the date hereof, each of the Guaranties are hereby
amended as follows:
(i) The first sentence of the preamble to the Guaranty is
hereby further amended to insert the following after the zip code
"10116-3138,": "; Bank
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Leumi Trust Company of New York ("BLT"), 562 Fifth Avenue, New York,
New York, 10036."; and
(ii) Section 12 of the Guaranty is hereby further amended
to insert the following immediately after the zip-code "10116-3138,
Attention Mr. Christopher Young, Assistant Vice President": ";
Attention: Mr. Paul Tine, Vice President, if to BLT, 562 Fifth
Avenue, New York, New York 10036.";
(iii) The Guaranty is hereby amended to include Section 15
as follows:
HETER ISKA. This Guaranty is being provided to BLT in
accordance with BLT's heter iska.
2. From and after the date hereof, the Subsidiary Tie-In Agreement is
hereby further amended as follows:
The first sentence of the preamble to the Subsidiary Tie-In
Agreement is hereby further amended to insert the following after the
zip code "10116-3138": "; Bank Leumi Trust Company of New York
('BLT'), with an address at 562 Fifth Avenue, New York, New York,
10036. (BKB, IBJS, SBC, LBC, BOT and BLT are hereafter referred to
collectively as the 'Lenders')".
IN WITNESS WHEREOF, the parties hereto have executed this
Acknowledgment and Agreement under seal on the day and year first above written.
THE BORROWERS:
--------------
ALLOU HEALTH & BEAUTY CARE, INC.
ALLOU DISTRIBUTORS, INC.
ALLOU PERSONAL CARE CORPORATION
M. SOBOL, INC.
SUPERBUY OF NEW YORK, INC.
RONA BEAUTY SUPPLIES, INC.
HEMPSTEAD HEALTH & BEAUTY AIDS, INC.
PASTEL COSMETIC AND BEAUTY AIDS, INC.
HBA NATIONAL SALES CORP.
HBA DISTRIBUTORS, INC.
RUSS KALVIN PERSONAL
CARE CORP.
STANFORD PERSONAL CARE
MANUFACTURING, INC.
COSMETIC PLUS TWO, INC.
By: ___________________________________
In his capacity as ________________
of each of the above-named entities
(Signatures continued on next page)
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GUARANTORS:
-----------
____________________________
Victor Jacobs
____________________________
Herman Jacobs
____________________________
Jacob Jacobs
ACKNOWLEDGED AS OF THE DATE
FIRST SET FORTH ABOVE
THE FIRST NATIONAL BANK OF BOSTON
By: ____________________________
Title:
IBJ SCHRODER BANK & TRUST COMPANY
By: ____________________________
Title:
SANWA BUSINESS CREDIT CORPORATION
By: ____________________________
Title:
LASALLE BUSINESS CREDIT, INC.
By: ____________________________
Title:
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THE BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: ____________________________
Title:
BANK LEUMI TRUST COMPANY OF NEW YORK
By: ____________________________
Title:
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