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Exhibit 10(b)
CML GROUP, INC.
AND ITS UNDERSIGNED SUBSIDIARIES
524 Main Street
Acton, Massachusetts 01720
Dated as of December 10, 1996
The First National Bank of Boston
BankAmerica Business Credit, Inc.
c/o The First National Bank of Boston,
as Administrative Agent
100 Federal Street
Boston, Massachusetts 02110
Re: Amendment No. 2 to Credit Agreement and Consent
Ladies and Gentlemen:
We refer to the Revolving Credit Agreement, dated as of April 17, 1996
(as amended by a letter agreement dated as of June 5, 1996 and by an Amendment
No. 1 to Credit Agreement, Consent and Waiver dated as of October 15, 1996, the
"Credit Agreement"), among (i) CML Group, Inc. ("CML"), (ii) NordicTrack, Inc.,
Nordic Advantage, Inc., Smith & Hawken, Ltd. and Biscuit Factory Publications
Incorporated (d/b/a Hear Music), (iii) The First National Bank of Boston ("Bank
of Boston") and BankAmerica Business Credit, Inc. ("BankAmerica") (each a
"Lender" and collectively, the "Lenders") and (iv) Bank of Boston, as
administrative, collateral and documentation agent for the Lenders (the
"Administrative Agent") and as Issuing Bank. Capitalized terms used and not
otherwise defined in this letter agreement (this "Amendment Agreement") shall
have the meanings assigned to such terms in the Credit Agreement.
We have requested the undersigned Lenders to consent to certain
amendments to the Monogram Credit Card Program Agreement.
In addition, we have requested the undersigned Lenders to amend the
Credit Agreement to permit NordicTrack to enter into a new credit card program
with General Electric Capital Corporation.
The undersigned Lenders and the Administrative Agent have advised us
that they are prepared to so amend the Credit Agreement and to grant the
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requested consents on the terms, subject to the conditions and in reliance on
our representations contained herein.
Accordingly, CML, the Borrowers and the Lenders hereby agree as
follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is
hereby amended as set forth below.
(a) Definitions. Section 1.1 of the Credit Agreement is
amended as follows:
(i) the definition of "Eligible Accounts Receivable"
set forth in such section is amended by restating clause
(xiii) thereof to read as follows:
(xiii) that are not receivables arising
under any Private Label Credit Card Program or any
other credit card receivables;
(ii) the definition of "Private Label Credit Card
Programs" set forth in such section is amended by inserting
after the words "The Monogram Credit Card Program", the words
", the GE Capital Credit Card Program"; and
(iii) the following new definitions are inserted in
the appropriate alphabetical sequence in such section:
GE Capital Credit Card Program. The credit
card program made available to customers of
NordicTrack in accordance with the GE Capital Credit
Card Program Agreement.
GE Credit Card Program Agreement. The
Account Purchase and Consumer Credit Card Program
Agreement, dated as of December 10, 1996, among
General Electric Capital Corporation and NordicTrack.
(b) Private Label Credit Card Program. Section 9.19 of the
Credit Agreement is amended by (i) deleting the word "and" at the end
of clause (a) in the first sentence thereof and substituting in place
thereof a comma and (ii) inserting before the period at the end of
clause (b) thereof, the following: "and (c) has a Credit Review Point
(as such term is defined in the Monogram Credit Card Program Agreement)
of not less than $120,000,000".
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(c) Restrictions on Indebtedness. Section 10.1(k) of the
Credit Agreement is amended by deleting such paragraph in its entirety
and substituting in place thereof a new paragraph (k) as follows:
(k) Indebtedness of NordicTrack under the Monogram
Credit Card Program and the GE Credit Card Program.
(d) Restrictions on Liens. Section 10.2 of the Credit
Agreement is amended by (i) deleting the word "and" at the end of
paragraph (i) thereof, (ii) deleting the period at the end of paragraph
(j) thereof and substituting in place thereof the word "; and"; and
(iii) inserting a new paragraph (k) as follows:
(k) liens on assets of NordicTrack granted in
accordance with the Monogram Credit Card Program and the GE
Capital Credit Card Program.
(e) Disposition of Assets. Section 10.5.2 of the Credit
Agreement is amended by (i) deleting the word "and" at the end of
clause (b) thereof, and (ii) deleting the period at the end of clause
(c) thereof and substituting in place thereof the following: "and (d)
the sale of accounts receivable of NordicTrack to General Electric
Capital Corporation in accordance with the GE Capital Credit Card
Program Agreement."
(f) Private Label Credit Card Programs. Section 10.14 of the
Credit Agreement is amended and restated in its entirety as follows:
10.14. PRIVATE LABEL CREDIT CARD PROGRAMS. Neither
CML nor NordicTrack will amend, supplement or otherwise modify
any terms or provisions of any Private Label Credit Card
Program without the prior written consent of the
Administrative Agent. Without limitation of the foregoing,
neither CML nor NordicTrack will (a) increase the Credit
Review Point (as such term is defined in the Monogram Credit
Card Program Agreement) above $123,000,000 without the prior
written consent of the Administrative Agent or (b) increase
the Credit Review Point (as such term is defined in the GE
Capital Credit Card Program Agreement) above $20,000,000
without the prior written consent of the Administrative Agent.
CML and NordicTrack will promptly notify the Administrative
Agent of the termination of the GE Capital Credit Card Program
and of the termination of the Intercreditor Agreement dated as
of December 10, 1996 among General Electric Capital
Corporation, the Banks and the Administrative Agent.
SECTION 2. Consent and Direction. The Administrative Agent hereby
consents to NordicTrack entering into the Second Amendment to Consumer Credit
Card Program Agreement in the form delivered to the Administrative
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Agent on or prior to the date hereof (the "Monogram Amendment"). The Lenders
hereby direct the Administrative Agent to enter into an Intercreditor Agreement
with General Electric Capital Corporation (the "Intercreditor Agreement")
provided that such Intercreditor Agreement is in form and substance satisfactory
to the Administrative Agent.
SECTION 3. Conditions. The effectiveness of Sections 1 and 2 above is
subject to satisfaction of the following conditions precedent:
(a) This Amendment Agreement shall have been duly authorized,
executed and delivered to the Administrative Agent by CML, the
Borrowers, the Lenders and the Administrative Agent.
(b) The Monogram Amendment shall have been duly authorized,
executed and delivered by the parties thereto, a copy thereof shall
have been delivered to the Administrative Agent by NordicTrack and such
amendment shall be in form and substance satisfactory to the
Administrative Agent.
(c) The GE Capital Credit Card Program Agreement shall have
been duly authorized, executed and delivered by the parties thereto, a
copy thereof shall have been delivered to the Administrative Agent by
NordicTrack and such agreement shall be in form and substance
satisfactory to the Administrative Agent.
(d) The Intercreditor Agreement shall have been duly
authorized, executed and delivered by the parties thereto, a copy
thereof shall have been delivered to the Administrative Agent by
NordicTrack and such agreement shall be in form and substance
satisfactory to the Administrative Agent.
(e) All representations and warranties of CML and the
Borrowers contained in Section 4 of this Amendment Agreement shall be
true and correct.
SECTION 4. Representations and Warranties. Each of the Borrowers and
CML hereby represents and warrants to the Administrative Agent and the Lenders,
on and as of the date hereof, as follows:
(a) This Amendment Agreement has been duly executed and
delivered by each of the Borrowers and CML. The execution and delivery
by each of the Borrowers and CML of this Amendment Agreement and the
performance by each of the Borrowers and CML of this Amendment
Agreement and the Loan Documents, as amended hereby (collectively, the
"Amendment Documents"), have been duly authorized by proper corporate
proceedings by such Person, and each Amendment Document to which any of
the Borrowers and CML is a party constitutes the legal,
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valid and binding obligation of such Person, enforceable against such
Person in accordance with the terms of such Amendment Document.
(b) The execution, delivery and performance of this Amendment
Agreement by each of the Borrowers and CML (i) are within the corporate
authority of such Person, (ii) have been duly authorized by all
necessary corporate proceedings, (iii) do not conflict with or result
in any breach or contravention of any provision of law, statute, rule
or regulation to which CML, any of the Borrowers, or any of their
Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to CML, any of the Borrowers, or any of
their Subsidiaries and (iv) do not conflict with any provision of the
corporate charter or bylaws of, or any agreement or other instrument
binding upon, CML, any of the Borrowers, or any of their Subsidiaries.
(c) Each of the representations and warranties of any of CML,
the Borrowers and their Subsidiaries contained in the Credit Agreement,
the other Loan Documents or in any document or instrument delivered
pursuant to or in connection with the Credit Agreement are true as of
the date as of which they were made and are true as of the date of this
Amendment Agreement, except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents and except to the extent that such representation
and warranties relate expressly to any earlier date.
(d) The Monogram Credit Card Program Agreement, as amended by
the Monogram Amendment, is in full force and effect and no default or
event of default is continuing thereunder.
(e) No Default or Event of Default is continuing under the
Credit Agreement.
SECTION 5. Continued Validity of Loan Documents. Except for the
amendments of the Credit Agreement pursuant to Section 1 hereof and the consent
and direction granted pursuant to Section 2 hereof, this Amendment Agreement
shall not, by implication or otherwise, limit, impair, constitute a waiver of or
otherwise affect any rights or remedies of the Administrative Agent or the
Lenders under the Credit Agreement or the other Loan Documents, nor alter,
modify, amend or in any way affect any of the obligations or covenants contained
in the Credit Agreement or any of the other Loan Documents, all of which are
ratified and confirmed in all respects and shall continue in full force and
effect. The Lenders shall not have any obligation to grant any further consent
with respect to the subject matter of the consent granted herein or any other
consents.
SECTION 6. Legal Fees. Each of the Borrowers and CML confirms and
agrees that it shall pay or reimburse the Administrative Agent for all legal
fees and disbursements of legal counsel for the Administrative Agent in
connection
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with this Amendment Agreement, the transactions contemplated hereby,
and the financing arrangements governed by the Credit Agreement.
SECTION 7. Loan Documents. From and after the date hereof, this
Amendment Agreement shall be deemed a Loan Document for all purposes of the
Credit Agreement, and each reference to Loan Documents in the Credit Agreement
shall be deemed to include this Amendment Agreement.
SECTION 8. APPLICABLE LAW. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL SUBSTANTIVE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
SECTION 9. Counterparts. This Amendment Agreement may be executed in
any number of counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of a signature page by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
date first above written.
Very truly yours,
CML GROUP, INC.
By: /s/ Glenn E. Davis
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Glenn E. Davis, Vice President - Finance
NORDICTRACK, INC.
NORDIC ADVANTAGE, INC.
SMITH & HAWKEN, LTD.
BISCUIT FACTORY PUBLICATIONS
INCORPORATED (d/b/a HEAR MUSIC)
By: /s/ Glenn E. Davis
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Glenn E. Davis, Vice President
Agreed to and Accepted By:
THE FIRST NATIONAL BANK
OF BOSTON, individually and as
Administrative Agent, Co-Agent and Issuing Bank
By: /s/ Brent E. Shay
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Brent E. Shay, Director
BANKAMERICA BUSINESS CREDIT, INC.,
individually and as Co-Agent
By: /s/ Ira A. Mermelstein
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Ira A. Mermelstein, Vice President
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CONSENT OF GUARANTORS AND FOREIGN GUARANTORS
Each of the undersigned hereby acknowledges and consents to the
foregoing Amendment No. 2 to Credit Agreement and Consent, dated as of December
10, 1996 and agrees that the Guaranty, dated as of April 17, 1996, executed by
such Person in favor of the Administrative Agent and the Lenders or, as the case
may be, the Foreign Guaranty, dated in April 1996, executed by such Person in
favor of the Administrative Agent and the Lenders, and all of the other Loan
Documents to which such Person is a party remain in full force and effect, and
such Person confirms and ratifies all of its obligations thereunder.
OCR, INC.
OBW, INC.
WFH GROUP, INC.
CML INTERNATIONAL (FSC), LTD.
THE NATURE COMPANY LIMITED
NORDICTRACK (U.K.) LTD.
NORDIC ADVANTAGE OF ONTARIO, INC.
OTNC, INC.
By: /s/ Glenn E. Davis
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Glenn E. Davis, Vice President
NORDICTRACK GmbH
By: /s/ Glenn E. Davis
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Title: Vice President