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SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT

Security Agreement

SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT | Document Parties: SWANK, INC. | WELLS FARGO FOOTHILL, INC You are currently viewing:
This Security Agreement involves

SWANK, INC. | WELLS FARGO FOOTHILL, INC

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Title: SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Governing Law: Massachusetts     Date: 11/21/2008
Industry: Jewelry and Silverware     Sector: Consumer Cyclical

SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, Parties: swank  inc. , wells fargo foothill  inc
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Exhibit 10.01

 

 

SEVENTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

 

Seventh Amendment dated as of November 20, 2008 to Loan and Security Agreement (the “ Seventh Amendment ”), by and between SWANK, INC., a Delaware corporation (the “ Borrower ”) and WELLS FARGO FOOTHILL, INC. (the “ Lender ”), amending certain provisions of the Loan and Security Agreement dated as of June 30, 2004 (as amended and in effect from time to time, the “ Agreement ”) by and between the Borrower and the Lender. Terms not otherwise defined herein which are defined in the Agreement shall have the same respective meanings herein as therein.

 

WHEREAS , the Borrower and the Lender have agreed to modify certain terms and conditions of the Agreement as specifically set forth in this Seventh Amendment;

 

NOW, THEREFORE , in consideration of the premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

§1.          Amendment to Section 1 of the Agreement . Section 1.1 of the Agreement is hereby amended as follows:

 

(a)        The definition of “Permitted Investment” set forth in Section 1.1 of the Agreement is hereby amended by deleting such definition in its entirety and restating it as follows:

 

Permitted Investments ” means (a) Investments in cash and Cash Equivalents; (b) Investments in negotiable instruments for collection or deposit; (c) advances or prepayments made in connection with purchases of goods or services in the ordinary course of business consistent with past practices; (d) Investments received in settlement of amounts due to Borrower or any of its Subsidiaries effected in the ordinary course of business or owing to Borrower or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure or enforcement of any Lien in favor of Borrower or its Subsidiaries; (e) Investments existing on the Closing Date and set forth on Schedule PI-1 hereto; (f) Investments consisting of the granting of trade credit in the ordinary course of business consistent with past practices; (g) Investments consisting of advances to employees in the nature of draws against commissions made in the ordinary course of business consistent with past practices, provided, the aggregate amount of all such Investments do not exceed $40,000 per month per employee at any time; (h) Investments consisting of expense advances to employees in the ordinary course of business consistent with past practices, provided no single expense advance exceeds $1,000; (i) Investments consisting of obligations of Account Debtors to Borrower arising

 

 


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from amounts owing on past due Accounts and which amounts are evidenced by a written promissory note from such Account Debtor to Borrower, provided all actions necessary to perfect Lender’s security interest in such note have been taken (including such original note being endorsed to Lender and delivered to Lender); and (j) so long as no Default or Event of Default has occurred and is continuing, Investments by Borrower (i) in The New Swank Inc. Retirement Plan consisting of advances made by Borrower to The New Swank Inc. Retirement Plan, the proceeds of which are used by The New Swank Inc. Retirement Plan to repurchase from employees of Borrower shares of the Stock of Borrower owned by such employee and (ii) consisting of advances to employees of Borrower to repurchase from such employees shares of the Stock of Borrower owned by such employee, provided, (x) the aggregate amount of any such Investment made pursuant to this paragraph (j) shall be deducted from the calculation of EBITDA in the applicable period in which such Investment was made (whether such deduction is a result of such Investment being expensed or otherwise deducted); (y) the aggregate amount of such Investment shall not exceed the amount set forth in Section 7.10 hereof; and (z) the Borrower’s Availability both before and after making such Investment is not less than $3,000,000.

 

(b)        Section 1.1 of the Agreement is further amended by inserting the following definitions in the appropriate alphabetical order:

 

Borrowing Base Calculation Amount ” means, as of any relevant date of determination, an amount equal to (a) the sum of (i) 85% of Eligible Accounts as of such date, plus (ii) the lesser of (1) 60% of Eligible Inventory as of such date and (2) 85% timesthe Net Liquidation Percentage times the book value of Borrower’s Inventory at such date less (b) the Letter of Credit Usage.

 

Revolver Commitment Amount ” means, as of any relevant date of determination, the Maximum Revolver Amount less the Letter of Credit Usage.

 

Unused Availability Amount ” means, as at any date of determination, an amount equal to (a) the lesser of (i) the Revolver Commitment Amount on such date and (ii) the Borrowing Base Calculation Amount on such date, minus (b) book overdrafts on such date, minus (c) accounts payable which are more than sixty (60) days past due, minus (d) the Revolver Usage on such date.

 

§2.          Amendment to Section 2 of the Agreement . Section 2 of the Agreement is hereby amended as follows:

 

(a)        Section 2.1(c) of the Agreement is hereby amended by inserting immediately after the end of the text of Section 2.1(c) the following sentence: “In addition, Lender shall have no obligation to make additional Advances hereunder to the extent such additional Advances would cause the Unused Availability Amount to be less than $3,000,000.”

 

(b)        Section 2.4 of the Agreement is hereby amended by deleting the first sentence of Section 2.4 in its entirety and restating it as follows: “If, at any time or for any reason, the amount of Obligations (other than Bank Product Obligations) owed by Borrower to Lender

 


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pursuant to Section 2.1 or Section 2.11 is greater than any of the limitations set forth in Section 2.1 or Section 2.11 , as applicable (including, without limitation, if any time the Unused Availability Amount is less than $3,000,000) (an “ Overadvance ”), Borrower shall immediately pay to Lender, in cash, the amount of such excess, which amount shall be used by Lender to reduce the Obligations in accordance with the priorities set forth in Section 2.3(b).”

 

§3.          Amendment to Section 7 of the Agreement . Section 7 of the Agreement is hereby amended as follows:

 

(a)        Section 7.10 of the Agreement is hereby amended by deleting Section 7.10 in its entirety and restating it as follows:

 

7.10.       Restricted Payments . Make any Restricted Payment, provided, however , so long as no Default or Event of Default has occurred and is continuing or would exist as a result thereof, Borrower shall be permitted to (a) make a Restricted Payment either (i) to The New Swank Inc. Retirement Plan consisting of advances or other Dis


 
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