exv10w3



 





EXHIBIT 10.3




FIRST AMENDMENT TO GUARANTY AGREEMENT




     THIS FIRST AMENDMENT TO GUARANTY AGREEMENT (this “First Amendment”), dated as of November 15,
2005, is entered into among HELEN OF TROY LIMITED, a Bermuda company, HELEN OF TROY LIMITED, a
Barbados corporation, HOT NEVADA, INC., a Nevada corporation, HELEN OF TROY NEVADA CORPORATION, a
Nevada corporation, HELEN OF TROY TEXAS CORPORATION, a Texas corporation, IDELLE LABS LTD., a Texas
limited partnership, and OXO INTERNATIONAL LTD., a Texas limited partnership (the “Guarantors”),
and BANK OF AMERICA, N.A., as Guarantied Party (the “Guarantied Party”).



BACKGROUND





	A.	 	The Guarantors and the Guarantied Party are parties to that certain Guaranty Agreement,
dated as of August 1, 2005 (the “Guaranty Agreement”). The terms defined in the Guaranty
Agreement and not otherwise defined herein shall be used herein as defined in the Guaranty
Agreement.
	 
	B.	 	The parties to the Guaranty Agreement desire to make certain amendments to the Guaranty
Agreement.
	 
	C.	 	The Guarantied Party hereby agrees to amend the Guaranty Agreement, subject to the terms and
conditions set forth herein.





     NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the Guarantors and the Guarantied Party covenant and agree as follows:


1. AMENDMENTS.





	 	(a)	 	The definition of “Capital Expenditures” set forth in Section 1.01 of the Guarantee
Agreement is hereby amended to read as follows:
	 
	 	 	 	“Capital Expenditures” means, with respect to any Person for any period, the sum of the
aggregate of any expenditures by such Person during such period for an asset which is
properly classifiable in relevant financial statements of such Person as property,
equipment or improvement, fixed assets or a similar type of tangible capital asset in
accordance with GAAP; provided, however, the aggregate amount of Capital Expenditures
during any period shall be reduced by the cash proceeds received by such Person from the
Disposition of such assets during such period, and, provided, further, however, (a)
Capital Expenditures incurred in connection with an Acquisition will not be considered
Capital Expenditures for purposes of this Agreement and (b) Capital Expenditures during any
period shall be reduced by $16,000,000 as a result of the warehouse of the Borrower located
in Mississippi and offered for sale until the earlier of (i) the sale of such warehouse and
(ii) May 30, 2006.
	 
	 	(b)	 	Section 8(k)(3) of the Guarantee Agreement is hereby amended to read as follows:






	 	(c)	 	Leverage Ratio. Permit the Leverage Ratio at any time during any period of
four fiscal quarters of Limited set forth below to be greater than the ratio set forth
opposite such period:





	 	 	 
	Four Fiscal Quarters Ending:	 	 
	November 30, 2005
	 	4.00 to 1.00
	Each fiscal quarter thereafter
	 	3.50 to 1.00







	 	(c)	 	Exhibit E, Compliance Certificate, is hereby amended to be in the form of Exhibit A to this
First Amendment.




2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, each of the Guarantors represents and warrants that, as of the date hereof:





	 	(a)	 	the representations and warranties contained in the Guarantee Agreement and the other
Loan Documents are true and correct on and as of the date hereof as made on and as of such
date, except to the extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct on such earlier date;





 









 






	 	(b)	 	no event has occurred and is continuing which constitutes a Default or an Event of Default;
	 
	 	(c)	 	(i) each Guarantor has full power and authority to execute and deliver this First
Amendment, (ii) Limited has full power and authority to execute and deliver this First
Amendment, (iii) this First Amendment has been duly executed and delivered by the
Guarantors, and (iv) this First Amendment and the Guarantee Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Borrower and Limited, as the
case may be, 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 First Amendment or the
Guarantee Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will conflict with any Law or Organization Documents of
the Borrower or Limited, or any indenture, agreement or other instrument to which the
Borrower or Limited or any of their respective property is subject; and
	 
	 	(e)	 	no authorization, approval, consent, or other action by, notice to, or filing with,
any Governmental Authority or other Person not previously obtained is required for (i) the
execution, delivery or performance by the Guarantors of this First Amendment or (ii) the
acknowledgment by each Borrower of this First Amendment.




3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be effective upon satisfaction
or completion of the following:





	 	(a)	 	the Administrative Agent shall have received counterparts of this First Amendment
executed by each of the Guarantors and acknowledged by the Borrower; and
	 
	 	(b)	 	the Guarantied Party shall have received, in form and substance satisfactory to the
Guarantied Party and its counsel, such other documents, certificates and instruments as
the Guarantied Party shall reasonably require.




4. REFERENCE TO THE GUARANTEE AGREEMENT.





	 	(a)	 	Upon the effectiveness of this First Amendment, each reference in the Guarantee
Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a
reference to the Guarantee Agreement, as affected and amended hereby.
	 
	 	(b)	 	The Guarantee Agreement, as amended by the amendments referred to above, shall remain
in full force and effect and is hereby ratified and confirmed.




5. COSTS, EXPENSES AND TAXES. The Guarantors agree to pay on demand all reasonable
costs and expenses of the Guarantied Party in connection with the preparation, reproduction,
execution and delivery of this First Amendment and the other instruments and documents to be
delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for the
Guarantied Party with respect thereto).



6. BORROWER’S ACKNOWLEDGMENT. By signing below, the Borrower (a) acknowledges, consents
and agrees to the execution, delivery and performance by the Guarantors of this First Amendment,
(b) acknowledges and agrees that its obligations in respect of its Loan Agreement (i) are not
released, diminished, waived, modified, impaired or affected in any manner by this First Amendment
or any of the provisions contemplated herein, (c) ratifies and confirms its obligations under its
Loan Agreement, and (d) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, its Loan Agreement.



7. EXECUTION IN COUNTERPARTS. This First 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 when taken together shall
constitute but one and the same instrument. For purposes of this First Amendment, a counterpart hereof (or signature
page thereto) signed and transmitted by any Person party hereto to the Guarantied Party (or its
counsel) by facsimile machine, telecopier or electronic mail is to be treated as an original. The
signature of such Person thereon, for purposes hereof, is to be considered as an original
signature, and the counterpart (or signature page thereto) so transmitted is to be considered to
have the same binding effect as an original signature on an original document.



8. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be governed by and
construed in accordance with the laws of the State of Texas applicable to agreements made and to be
performed entirely within such state, provided that each party shall retain all rights arising
under federal law, and shall be binding upon the parties hereto and their respective successors and
assigns.




 









 




9. HEADINGS. Section headings in this First Amendment are included herein for
convenience of reference only and shall not constitute a part of this First Amendment for any other
purpose.



10. ENTIRE AGREEMENT. THE GUARANTY AGREEMENT, AS AMENDED BY THIS FIRST 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.




     IN WITNESS WHEREOF, this Second Amendment is executed as of the date first set forth above.



	 	 	 	 	 
	 	 	HELEN OF TROY LIMITED, a Bermuda corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	HELEN OF TROY LIMITED, a Barbados corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	HOT NEVADA,
INC.,
 a Nevada corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gary B. Abromovitz
	 

	 	 	 	 
	 

	 	 	 	Gary B. Abromovitz
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	HELEN OF TROY NEVADA CORPORATION,
	 	 	a Nevada corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	HELEN OF TROY TEXAS CORPORATION,
	 	 	a Texas corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	IDELLE LABS LTD., a Texas limited partnership
	 
	 	 	 	 
	 

	 	By:
	 	HELEN OF TROY NEVADA CORPORATION,
	 

	 	 	 	a Nevada corporation, General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President






 









 






	 	 	 	 	 
	 	 	OXO INTERNATIONAL LTD., a Texas limited partnership
	 
	 	 	 	 
	 

	 	By:
	 	HELEN OF TROY NEVADA CORPORATION,
	 

	 	 	 	a Nevada corporation, General Partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gerald J. Rubin
	 

	 	 	 	 
	 

	 	 	 	Gerald J. Rubin
	 

	 	 	 	Chairman, Chief Executive Officer and
	 

	 	 	 	President
	 
	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Guarantied Party
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gary Mingle
	 

	 	 	 	 
	 

	 	 	 	Gary Mingle
	 

	 	 	 	Senior Vice President