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Exhibit 4(iii)
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AMENDMENT NO. 1
TO
CREDIT AGREEMENT
AND WAIVER AND CONSENT
AMONG
AMERICAN GREETINGS CORPORATION,
AS A BORROWER,
THE LENDING INSTITUTIONS NAMED HEREIN,
AS LENDERS,
AND
NATIONAL CITY BANK,
AS THE GLOBAL AGENT AND THE COLLATERAL AGENT
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DATED AS OF JANUARY 28, 2005
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This
AMENDMENT NO. 1 TO CREDIT AGREEMENT AND WAIVER AND CONSENT
(this
"Amendment") is entered into
as of January 28, 2005, by and among the following:
(i) AMERICAN GREETINGS
CORPORATION, an Ohio corporation (the "Company"); (ii)
the Lenders, as defined in
the Credit Agreement; and (iii) NATIONAL CITY BANK,
as Global Agent and as
Collateral Agent, each as defined in the Credit
Agreement.
RECITALS:
A.
The
Company, the Foreign Subsidiary Borrowers from time to
time
party to the Credit Agreement
referred to below, the Global Agent, the
Collateral Agent, the
Lenders, KEYBANK NATIONAL ASSOCIATION, as Syndication
Agent, and LASALLE BANK
NATIONAL ASSOCIATION, as Documentation Agent are parties
to an Amended and Restated
Credit Agreement dated as of May 11, 2004 (as the
same may from time to time be
amended, restated or otherwise modified, the
"Credit
Agreement").
B.
The
Company has requested that the Global Agent, the
Collateral
Agent, and the Lenders agree
to waive and amend certain provisions of the Credit
Agreement, as set forth
herein.
C.
The Global
Agent, the Collateral Agent, and the Lenders are willing
to agree to such waiver and
amendment pursuant to the terms and subject to the
conditions set forth
herein.
AGREEMENT:
In
consideration of the premises and mutual covenants herein and for
other
valuable consideration, the
Company, the Global Agent, the Collateral Agent and
the Lenders agree as
follows:
Section 1.
Definitions. Unless otherwise defined herein, each
capitalized
term used in this Amendment
and not defined herein shall have such meaning
ascribed to it in the Credit
Agreement.
Section 2.
Waiver. The Company has maintained and permitted certain of
its
Subsidiaries to maintain more
than $100,000 of inventory on consignment in
violation of Section 4.3(b)
of the Security Agreement. Such violation
constitutes a Default and
would, with the passage of time, constitute an Event
of Default under Section
8.01(d) of the Credit Agreement (the "Current
Violation"). The Company has
requested that the Lenders waive the Default that
has occurred and any Event of
Default that may have occurred under Section
8.01(d) of the Credit
Agreement as a result of the Current Violation.
Effective
as of the Amendment Effective
Date (as defined below), and subject to the terms
and conditions set forth in
this Amendment, the Lenders hereby waive the Default
and the Event of Default
under Section 8.01(d) of the Credit Agreement that has
occurred solely as a result
of the Current Violation.
Section 3.
Consent.
3.1 The
parties hereto hereby consent to Amendment No. 1 to Amended
and
Restated Pledge and Security
Agreement, dated as of the date hereof, by and
among the Company, each
Subsidiary Guarantor, and the Collateral Agent, on
behalf of the Lenders, a copy
of which is attached hereto as Exhibit A (the
"Security Agreement
Amendment").
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3.2 The
Company has informed the Global Agent, the Collateral Agent
and
the Lenders that AG
Interactive, Inc. ("AG Interactive") desires to transfer
all
of the equity interests of
K-Mobile, S.A., a French societe anonyme, owned by AG
Interactive to A.G.
Interactive, B.V., a Dutch company (the "Equity
Transfer").
Section 7.02 of the Credit
Agreement does not permit the Equity Transfer. The
Company has requested that
the Global Agent, the Collateral Agent and the
Lenders consent to the Equity
Transfer. Notwithstanding the restrictions set
forth in Section 7.02 of the
Credit Agreement, effective on the Amendment
Effective Date (as defined
below), the Global Agent, the Collateral Agent and
the Lenders consent to the
Equity Transfer, so long as, after giving effect to
this Amendment, no Default or
Event of Default shall exist at the time of or
immediately after giving
effect to the Equity Transfer.
Section 4.
Release. Effective on the Amendment Effective Date, AG
Interactive shall be released
from the Subsidiary Guaranty, the Security
Agreement and each other Loan
Document to which AG Interactive is a party and,
solely as to AG Interactive,
the Subsidiary Guaranty, the Security Agreement and
each other Loan Document to
which AG Interactive is a party shall terminate and
have no further force or
effect. In connection with the foregoing, the
Collateral Agent hereby
releases any security interest or Lien that it may have
pursuant to any of the
Security Documents on any of AG Interactive's property
or
assets. Each of the Lenders
hereby directs and authorizes the Collateral Agent
to take such action as the
Collateral Agent shall deem necessary or appropriate
in connection with the
foregoing releases, including, but not limited to, the
termination of any UCC
financing statements that were filed by the Collateral
Agent with respect to AG
Interactive.
Section 5.
Amendments.
5.1
Amendment to Lien Covenant. Section 7.03 of the Credit Agreement
is
hereby amended (i) to replace
the period (.) at the end of subsection (e) with
the following: "; or", and
(ii) to add the following new subsection (f) thereto:
(f) Liens
on consigned Scan-Based Inventory (as defined in the
Security
Agreement), but only to the extent a Grantor Customer (as defined
in the
Security
Agreement) has a creditor that has a Lien on the inventory
of
such
Grantor Customer.
5.2
Replacement of Schedule 3. Schedule 3 to the Credit Agreement
is
hereby replaced with Schedule
3 attached to this Amendment.
Section 6.
Effectiveness.
6.1
Conditions Precedent. The waiver, consent and amendment set
forth
above shall become effective
as of the date first written above (the "Amendment
Effective Date") if on or
before such date the following conditions have been
satisfied:
(i) this Amendment shall have been executed by the Company,
the
Global
Agent, the Collateral Agent and each Lender, and
counterparts
hereof as
so executed shall have been delivered to the Global
Agent;
(ii) the Company shall have caused each Subsidiary Guarantor
to
consent
and agree to and acknowledge the terms of this
Amendment;
(iii) the Security Agreement Amendment shall have been executed
by
the
Company, each Subsidiary Guarantor, and the Collateral Agent,
and
counterparts thereof as so executed shall have been delivered to
the
Global
Agent; and
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(iv) the Company shall have provided such other items and shall
have
satisfied
such other conditions as may be reasonably required by
the
Global
Agent.
6.2
Amendment Effective Date. The Global Agent shall provide the
Company
and the Lenders written
notice immediately upon the occurrence of the Amendment
Effective Date. Unless
otherwise specifically set forth herein, each of the
waivers, consents, amendments
and other modifications set forth in this
Amendment shall be effective
on and after the Amendment Effective Date.
Section 7.
Miscellaneous.
7.1
Representations and Warranties. The Company, by signing below,
hereby
represents and warrants to
the Global Agent, the Collateral Agent, and the
Lenders that:
(i) the Company has the legal power and authority to execute
and
deliver
this Amendment;
(ii) the officers executing this Amendment on behalf of the
Company
have been
duly authorized to execute and deliver the same and bind
the
Company
with res
