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Exhibit
10.1
SECOND AMENDMENT AND
WAIVER, dated as of May 22, 2008 (this “Amendment
and Waiver”), to the Credit Agreement, dated of
August 15, 2007 (as amended, restated, modified or otherwise
supplemented, from time to time, the “Credit
Agreement”), among ALLOY, INC., a Delaware corporation
(“Borrower”), the Lenders party thereto and BANK OF
AMERICA, N.A., as Administrative Agent and L/C
Issuer.
RECITALS
WHEREAS, the Borrower
has requested and the Administrative Agent and the Lenders have
agreed, subject to the terms and conditions of this Amendment and
Waiver, to amend and waive certain provisions of the Credit
Agreement as set forth herein;
NOW, THEREFORE, in
consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
1.
Amendments.
(a) The definition of the
terms “Disposition” or “Dispose” in
Section 1.01 of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
“ Disposition
” or “ Dispose ” means the sale, transfer,
license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person not in the
ordinary course of such Person’s business and other than on
an arm’s length basis, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated
therewith.
(b) Section 7.11 of the
Credit Agreement is hereby amended and restated in its entirety to
provide as follows:
“Permit extraordinary
charges, including the write-off of intangibles, restructure
charges or impairment of goodwill, of the Borrower and its
Subsidiaries on a consolidated basis, to exceed $5,000,000, with
respect to cash charges, or $10,000,000, with respect to non-cash
charges, during any rolling twelve (12) month period, provided
that, for purposes of calculating extraordinary charges for the
fiscal quarters ending April 30, 2008, July 31, 2008
and October 31, 2008, there shall be excluded from such
calculation the non-cash charges that were accrued by the Borrower
during the fiscal year ended January 31,
2008.”
(c) Schedule 2.01 of the
Credit Agreement is here amended and replaced with Schedule 2.01
attached hereto. Exhibit C-l of the Credit Agreement is here
amended and replaced with Exhibit C-l attached hereto
2.
Waivers.
(a) The Administrative Agent
and the Lenders hereby waive compliance with Section 7.11 of
the Credit Agreement in order to permit extraordinary charges of
the Borrower and its Subsidiaries on a consolidated basis, to
exceed $5,000,000, with respect to cash charges, or $10,000,000,
with respect to non-cash charges, for the fiscal year ended
January 31, 2008, provided that such charges were non-cash and
did not exceed $72,000,000, in the aggregate during such fiscal
year.
(b) The Administrative Agent
and the Lenders hereby waive compliance with Section 7.05 of
the Credit Agreement in order to permit the Borrower and its
Subsidiaries to consummate all non-complying Dispositions which
have occurred prior to the date hereof.
3. Increase in
Lender’s Commitment . Pursuant to and in accordance
with Section 2.01(b) of the Credit Agreement, the Borrower has
requested, and the Lender agrees, to increase the Lenders’
Commitment for Committed Loans to an aggregate amount equal to
$25,000,000.
4. Conditions of
Effectiveness . This Amendment and Waiver shall become
effective as of the date hereof, upon receipt by the Administrative
Agent of (a) this Amendment and Waiver, duly executed by the
Borrower, the Guarantors and the Lenders and (b) an amended
and restated Committed Loan Note, substantially in the form
attached hereto as Exhibit C-l.
5. Conforming
Amendments. The Credit Agreement, the Loan Documents and
all agreements, instruments and documents executed and delivered in
connection with any of the foregoing, shall each be deemed to be
amended and supplemented hereby to the extent necessary, if any, to
give effect to the provisions of this Amendment and Waiver. Except
as so amended and waived hereby, the Credit Agreement and the other
Loan Documents shall remain in full force and effect in accordance
with their respective terms.
6. Representations and
Warranties. The Borrower hereby represents and warrants
to the Lenders and the Administrative Agent as
follows:
(a) After giving effect to
this Amendment and Waiver, (i) each of the representations and
warranties set forth in Article V of the Credit Agreement is true
and correct in all material respects on and as of the date hereof
as if made on and as of the date of this Amendment and Waiver
except to the extent such representations or warranties relate to
an earlier date in which case they shall be true and correct in all
material respects as of such earlier date, and (ii) no Default
or Event of Default has occurred and is continuing as of the date
hereof or shall result from after giving effect to this Amendment
and Waiver.
(b) The Borrower has the
power to execute, deliver and perform this Amendment and Waiver and
each of the other agreements, instruments and documents to be
executed by it in connection with this Amendment and Waiver. No
registration with or consent or approval of, or other action by,
any Governmental Authority is required in connection with the
execution, delivery and performance of this Amendment and Waiver
and the other agreements, instruments and documents executed in
connection with this Amendment and Waiver by the Borrower, other
than registration, consents and approvals received prior to the
date hereof and disclosed to the Lenders and which are in full
force and effect.
(c) The execution, delivery
and performance by the Borrower of this Amendment and Waiver and
each of the other agreements, instruments, and documents to be
executed by it in connection with this Amendment and Waiver, and
the execution and delivery by each of the Guarantors of the Consent
to this Amendment and Waiver, (i) have been duly authorized by
all requisite corporate and limited liability company action,
(ii) will not violate (A) any provision of law applicable
to the Borrower or any Guarantor, any rule or regulation of any
Governmental Authority applicable to the Borrower or any Guarantor
or (B) the certificate of incorporation, by-laws, or other
organizational documents, as applicable, of the Borrower or of any
Guarantor or (C) any order of any court or other Governmental
Authority binding on the Borrower or any Guarantor or any
indenture, agreement or other instrument to which the Borrower or
any Guarantor is a party, or by which the Borrower or any Guarantor
or any of their respective properties are bound, and
(iii) will not be in conflict with, result in a breach of or
constitute (with due notice and/or lapse of time) a default under,
any such indenture, agreement or
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other instrument, or result in the
creation or imposition of any Lien, of any nature whatsoever upon
any of the property or assets of the Borrower or any Guarantor
other than as contemplated by the Credit Agreement, except for any
such violation, conflict, breach or default or Lien provided in
clauses (ii)(A), (ii)(B) or (ii)(C) which could not, individually,
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(d) This Amendment and Waiver
and each of the other agreements, instruments and documents
executed in connection with this Amendment and Waiver to which the
Borrower or the Guarantors are a party have been duly executed and
delivered by the Borrower and each Guarantor, as the case may be,
and constitutes a legal, valid and binding obligation of the
Borrower and each Guarantor enforceable, as the case may be, in
accordance with its terms, except to the extent that enforcement
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of
creditors’ rights generally a
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