Exhibit 99.1
AMENDMENT
TO
FORBEARANCE AGREEMENT AND AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT TO FORBEARANCE AGREEMENT AND AMENDMENT NO. 4 (this
“ Amendment ”), dated as of March 6, 2009, by
and among LIFETIME BRANDS, INC. , (the “
Borrower ”), the several financial institutions party
hereto and HSBC BANK USA, NATIONAL ASSOCIATION , as
Administrative Agent for the Lenders.
RECITALS
A. The Borrower, the Lenders,
Citibank, N.A. and Wachovia Bank, National Association, as
Co-Documentation Agents, JPMorgan Chase Bank, N.A., as Syndication
Agent, and the Administrative Agent are parties to the Second
Amended and Restated Credit Agreement, dated as of October 31, 2006
(as it may be amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement ”).
Unless otherwise defined herein, all capitalized terms used herein
or in the Acknowledgement and Consent annexed hereto shall have the
meanings ascribed to them in the Credit Agreement.
B. The Borrower has advised the
Administrative Agent and the Lenders that it was not, as at
December 31, 2008, in compliance with the provisions of Sections
7.13, 7.15 and 7.18 of the Credit Agreement (the “ Subject
Events of Default ”).
C. In connection with the Subject Events of
Default, the Borrower, the Required Lenders and the Administrative
Agent entered into Forbearance Agreement and Amendment No. 4 to
Second Amended and Restated Credit Agreement, dated as of February
12, 2009 (the “ Forbearance Agreement ”),
pursuant to which (1) the Administrative Agent and the Required
Lenders agreed, during the Forbearance Period, to forbear from (a)
declaring the Obligations, all interest thereon and all other
amounts payable under the Loan Documents to be due and payable as a
result of the occurrence of the Subject Events of Default and
(b) (i) terminating any obligation of the Lenders to make
Loans and any obligation of the Issuer to issue Letters of Credit,
or (ii) demanding that the Borrower pay to the Administrative Agent
an amount equal to the Letter of Credit Exposure outstanding on the
Forbearance Effective Date, as a result of the occurrence of the
Subject Events of Default and (c) instituting any judicial or
non-judicial action or proceeding to enforce or obtain payment of
the Obligations or to enforce the Administrative Agent’s
security interests as a result of the Subject Events of Default and
(2) the Credit Agreement was amended and modified in certain
respects.
D. The Borrower has requested that the
Administrative Agent and the Required Lenders extend the
Forbearance Period to March 31, 2009.
E. The Administrative Agent has
advised the Borrower that the Required Lenders are willing to agree
to its request on the terms and subject to the conditions set forth
in this Amendment.
Accordingly, in consideration of the foregoing, the parties hereto
hereby agree as follows:
1. Acknowledgments .
(a) The Borrower hereby acknowledges,
confirms and declares that, as of the date hereof, all amounts due
to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents without any acceleration of
amounts are unconditionally due and owing, without any setoff,
deduction, counterclaim, or defense of any kind or nature to the
payment thereof.
(b) The Borrower and each of the
Guarantors, by its execution of the Acknowledgment and Consent
annexed hereto, acknowledges that the agreement of the
Administrative Agent and the Lenders to forbear contained in the
Forbearance Agreement (as modified hereby) does not (i) except as
expressly set forth in Section 4 of the Forbearance Agreement,
constitute a waiver of the Subject Events of Default,
(ii) constitute a waiver of any other Event of Default that
may have occurred, that currently exists or that may hereafter occur
under the Credit Agreement or any other Loan Document, and
(iii) except as expressly set forth in Section 2 hereof,
constitute an amendment or modification of any term, covenant or
condition of the Forbearance Agreement, the Credit Agreement or any
other Loan Document.
(c) The Borrower acknowledges that (i) as a
result of the Subject Events of Default and, notwithstanding the
agreement of the Administrative Agent and the Required Lenders to
extend the Forbearance Period pursuant hereto, but for the
agreements of the parties set forth in the Forbearance Agreement,
the Lenders would be under no obligation to continue to make
Loans or
otherwise make available Extensions of Credit to or for the account
of the Borrower and (ii) notwithstanding the Subject Events
of Default, the election of the Lenders to continue to make Loans
and issue Letters of Credit under the Credit Agreement during the
Forbearance Period on and the terms and conditions set forth herein
shall not (A) constitute a waiver of the Subject Events of
Default or any future Events of Default, (B) constitute an
agreement or commitment by any Lender to continue to make Loans or
otherwise make available Extensions of Credit (including, without
limitation, Letters of Credit) in the event that any other Events
of Default occur hereafter or (C) constitute an agreement or
commitment by any Lender to continue to make Loans or otherwise
make available Extensions of Credit (including, without limitation,
Letters of Credit) on or after the Forbearance Termination
Date.
(d) The Borrower and each of the
Guarantors, by its execution of the Acknowledgment and Consent
annexed hereto, acknowledges that: (i) it has been advised by
counsel in the negotiation, execution and delivery of this
Amendment; and (ii) neither the Administrative Agent nor any
Lender has any fiduciary relationship with or duty to the Borrower
or the Guarantors arising out of or in connection with the Credit
Agreement, the other Loan Documents or this Amendment, and the
relationship between the Administrative Agent and the Lenders, on
the one hand, and the Borrower and the Guarantors, on the other, in
connection herewith and therewith is solely that of creditor and
debtor.
2. Amendments to the Forbearance
Agreement .
(a) Forbearance Termination
Date . Section 1 of the Forbearance Agreement is hereby amended
by deleting the reference to “March 6, 2009” in clause
(ii) of the definition of “ Forbearance Termination
Date ” and substituting therefor “March 31,
2009”.
(b) Extensions of Credit .
Section 5(a) of the Forbearance Agreement is hereby amended by
deleting the table set forth therein in its entirety and
substituting the following therefor:
|
Week
|
Aggregate Principal Amount of Outstanding
Extensions of Credit
|
|
Week commencing February 9, 2009
|
$85,881,000.00
|
|
Week commencing February 16, 2009
|
$90,343,000.00
|
|
Week commencing February 23, 2009
|
$92,260,000.00
|
|
Week commencing March 2, 2009
|
$92,260,000.00
|
|
Week commencing March 9, 2009
|
$94,110,000.00
|
|
Week commencing March 16, 2009
|
$91,966,000.00
|
|
Week commencing March 23, 2009
|
$92,817,000.00
|
|
Week commencing March 30, 2009
|
$90,082,000.00
|
(c) General . All references
to “ this Agreement ” in the Forbearance
Agreement shall be deemed to refer to the Forbearance Agreement as
amended and supplemented hereby.
3. Conditions to Effectiveness
. This Amendment shall be effective upon the satisfaction of each
of the following conditions:
(a) The Administrative Agent shall
have received an executed counterpart of this Amendment signed by
the Borrower, the Required Lenders and the Administrative
Agent.
(b) The Administrative Agent shall
have received an executed counterpart of the acknowledgement and
consent annexed
