Exhibit 10.01
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
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
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