LIMITED WAIVER AND
CONSENT
LIMITED WAIVER AND CONSENT, dated as
of November 15, 2008 (this “ Waiver ”), with
respect to the Amended and Restated Term Loan Credit Agreement,
dated as of April 20, 2007 (as amended, restated or otherwise
modified from time to time, the “ Credit Agreement
”), by and among D 56, Inc., a Minnesota corporation (“
D56 ”), Lenox Retail, Inc., a Minnesota corporation
(“ Lenox Retail ”), Lenox, Incorporated, a New
Jersey corporation (“ Lenox ”, and together with
D56 and Lenox Retail, each a ” Borrower ”
and collectively, the “ Borrowers ”), the
guarantors party thereto as guarantors, the financial institutions
from time to time party thereto as lenders (each a “
Lender ” and collectively, the ”
Lenders ”), UBS AG, Stamford Branch, as the
administrative agent and collateral agent for the Lenders (in such
capacity, the ” Agent ”), and UBS
Securities LLC as the sole arranger and syndication
agent.
WHEREAS, the Agent resigned as
Administrative Agent effective October 15, 2008, and no successor
has yet been appointed; and
WHEREAS, the Borrowers have advised
the Lenders that certain events prohibited by the Credit Agreement
have occurred and have requested that the Lenders waive any Events
of Default that would otherwise arise as a result of the occurrence
of such events; and
WHEREAS, the Lenders are willing to
waive such Events of Default on the terms and conditions set forth
herein;
NOW, THEREFORE, the Borrowers and
the Lenders hereby agree as follows:
1.
Capitalized Terms . All terms which are defined in the
Credit Agreement and not otherwise defined herein are used herein
as defined therein. In addition, as used in this Waiver, the
following terms shall have the respective meanings indicated below,
such meanings to be applicable equally to both the singular and
plural forms of such terms:
“
Specified Events ” means, the failure of the Loan
Parties and their Subsidiaries to (i) maintain a Consolidated Fixed
Charge Coverage Ratio for the Test Period ending September 30, 2008
of at least 1.15 to 1.0 as required by Section 6.08(a) of the
Credit Agreement, and (ii) maintain a Leverage Ratio for the Test
Period ending September 30, 2008 of less than 6.75 to 1.0, as
required by Section 6.08(c) of the Credit Agreement.
2.
Waiver and Consent .
(a) Pursuant
to the request of the Borrowers and in accordance with Section
10.02 of the Credit Agreement, for the period commencing on the
effective date of this Waiver and ending on November 24, 2008 (the
“ Waiver Period ”), the Lenders hereby consent
to, and waive any Event of Default that has or would otherwise
arise under Section 8.01(d)(i) of the Credit Agreement by reason of
the occurrence of any of the Specified Events.
(b) Upon
the expiration of the Waiver Period, the waiver and consents
provided for herein shall be immediately (without cure period) and
automatically terminated in their entirety and be of no further
force or effect.
(c) The
waiver and consents in this Section 2 shall be effective only in
this specific instance, for the specific purpose, and for the
specific period set forth herein and do not allow for any other or
further departure from the terms and conditions of the Credit
Agreement or any other Loan Document, which terms and conditions
shall continue in full force and effect.
3.
Conditions . This Waiver shall become effective only upon
rece
