or more counterparts and on telecopy or
other electronic counterparts, each of which when so executed shall be deemed to
be an original, but all of which when taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of a signature page of
this Amendment by telecopy or other electronic communication shall be effective
as delivery of a manually executed counterpart of this Amendment.
Section 4.10
Effect of Waiver. No consent or waiver, express or
implied, by any Agent or any Bank to or for any breach of or deviation from any
covenant, condition or duty by the Borrower or any
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Page 3
Guarantor shall be deemed a consent or waiver to or of any other breach of the
same or any other covenant, condition or duty.
Section 4.11
Headings. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 4.12
ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY
NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 4.13
Required Banks. Pursuant to Section 9.05 of the
Agreement, the Agreement may be modified as provided in this Amendment with the
agreement of the Required Banks which means Banks having more than fifty percent
(50%) of the Commitments, or if the Commitments have been terminated, Banks with
Committed Exposure of more than fifty percent (50%) of the aggregate Committed
Exposure (such percentage applicable to a Bank, herein such Bank's "Required
Bank Percentage"). For purposes of determining the effectiveness of this
Amendment, each Bank's Required Bank Percentage is set forth on Schedule 4.13
hereto.
Executed as of the date first written above.
ELIZABETH ARDEN, INC.
, as the Borrower
By:
/s/ Marcey Becker
Marcey Becker
Senior Vice President, Finance &
Corporate Development
JPMORGAN CHASE BANK, N.A.
(formerly JPMorgan Chase Bank), individually as a Bank, an Issuing Bank and as
Administrative Agent
By:
/s/ Christy L. West
Christy L. West, Authorized Officer
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Page 4
BANK OF AMERICA, N.A.
(successor in interest by merger to Fleet National Bank), as Collateral Agent
and a Bank
By:
/s/ Seth Tyminski
Seth Tyminski
VP
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Page 5
OTHER BANKS
:
WELLS FARGO CAPITAL FINANCE, LLC
(successor in interest to Wachovia Bank, National Association)
By:
/s/ Mark Bradford
Name:
Mark Bradford
Title:
Vice President
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Page 6
PNC BANK, NATIONAL ASSOCIATION
(successor in interest to National City Business Credit, Inc.)
By:
Name:
Title:
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
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