Exhibit 10.3
WAIVER AND
AMENDMENT NO. 5
TO
SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
WAIVER AND
AMENDMENT NO. 5 (this “ Amendment
”), dated as of March 31, 2009, by and among LIFETIME
BRANDS, INC. , (the “ Borrower ”), the
several financial institutions party hereto and HSBC BANK USA,
NATIONAL ASSOCIATION , as Administrative Agent for the
Lenders.
RECITALS
A. The
Borrower, the Lenders, Citibank, N.A. and Wachovia Bank, National
Association, as Co-Documentation Agents, JPMorgan Chase Bank, N.A.,
as Syndication Agent, and the Administrative Agent are parties to
the Second Amended and Restated Credit Agreement, dated as of
October 31, 2006 (as it may be amended, restated, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”). Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings ascribed to
them in the Credit Agreement.
B. The
Borrower was not, as at December 31, 2008, in compliance with the
provisions of Sections 7.13, 7.15 and 7.18 of the Credit
Agreement.
C. The
Borrower has (1) requested that the Administrative Agent and the
Required Lenders waive compliance by the Borrower with the
requirements of Sections 7.13, 7.15 and 7.18 of the Credit
Agreement for the fiscal quarter ending December 31, 2008 and (2)
requested the Lenders to amend the Credit Agreement in certain
respects.
D. The
Administrative Agent has advised the Borrower that the
Super-Majority Lenders are willing to agree to its request on the
terms and subject to the conditions set forth in this
Amendment.
Accordingly, in
consideration of the foregoing, the parties hereto hereby agree as
follows:
1.
Waiver . The Administrative Agent and the Required Lenders
hereby waive non-compliance by the Borrower with the requirements
of Sections 7.13, 7.15 and 7.18 of the Credit Agreement (as if
effect on December 31, 2008) for the period ended December 31,
2008; provided that such waiver (a) is limited
to the matters expressly stated in this Section 1 and (b) shall not
be deemed to be a waiver of any future non-compliance with Section
7.13, 7.15 or 7.18 of the Credit Agreement or a waiver of any
violations of any other provisions of the Credit
Agreement.
|
|
2.
|
Amendments to
Credit Agreement .
|
(a)
Additional Definitions . Section 1.01 of the Credit
Agreement is hereby amended by adding the following new definitions
in the appropriate alphabetical order:
“
Additional Guarantor ” means Wallace Silversmiths de
Puerto Rico Ltd., a Cayman Islands company.
“ Adjusted
Excess Availability ” means, as of any date of
determination, the positive difference, if any, between (a) the
Borrowing Base Amount as of such date minus
any Reserves and (b)
the Aggregate Revolving Exposure as of such date.
“ Amendment
No. 5 ” means Amendment No. 5 to Second Amended and
Restated Credit Agreement dated as of March 31, 2009 among the
Borrower, the Lenders party thereto and the Administrative
Agent.
“ Amendment
No. 5 Effective Date ” means March 31, 2009.
“ Banking Services
” each and any of the following bank services provided to any
Loan Party by any Lender or any of its Affiliates: (a) credit cards
for commercial customers (including, without limitation,
“commercial credit cards” and purchasing cards), (b)
stored value cards and (c) treasury management services (including,
without limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate
depository network services).
“ Banking Services
Obligations ” means of the Loan Parties means any and all
obligations of the Loan Parties, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor) in connection with Banking
Services.
“ Blocked Account Bank
” means HSBC Bank USA, National Association, or any successor
thereto.
“ Blocked
Accounts ” has the meaning set forth in Section
2.16(a).
“
Borrower’s Account ” has the meaning set forth
in Section 2.09(g).
“
Collateral Access Agreement ” means an agreement in
writing, in form and substance satisfactory to the Co-Collateral
Agents, from the lessor of premises to the Borrower or any
Guarantor, or any other Person (i) to whom any Collateral
(including Inventory, Equipment, bills of lading or other documents
of title) is consigned or (ii) who has custody, control or
possession of any such Collateral or (iii) is otherwise the owner
or operator of any such premises on which any of such Collateral is
located, pursuant to which such lessor, consignee or other Person
acknowledges the Lien of the Administrative Agent in such
Collateral, agrees to waive any and all claims such lessor,
consignee or other Person may, at any time, have against such
Collateral, whether for processing, storage or otherwise, and
agrees to permit the Co-Collateral Agents access to, and the right
to remain on, the premises of such lessor, consignee or other
Person so as to exercise the rights and remedies of the Agent and
the Lenders and otherwise deal with such Collateral, and which
contains such other provisions as the Co-Collateral Agents may
require from time to time.
- 2 -
“
Consultant ” means Carl Marks & Co., Inc. or
another restructuring consultant reasonably acceptable to the
Co-Collateral Agents.
“ Customs
Broker ” means the Persons selected by the Borrower after
written notice by the Borrower to the Co-Collateral Agents who are
reasonably acceptable to the Co-Collateral Agents to perform port
of entry services to process Inventory imported by the Borrower or
any Guarantor from outside the United States of America and to
supply facilities, labor and materials to the Borrower in
connection therewith, provided that, as to each such Person (a)
the Administrative Agent shall have received a Collateral Access
Agreement duly authorized, executed and delivered by such Person,
(b) such agreement is in full force and effect and (c) such Person
shall be in compliance in all material respects with the terms
thereof.
“ Eligible
Work in Process Inventory ” means work in process
Inventory constituting the precious metals component of such
Inventory that satisfies the criteria set forth in the definition
of “ Eligible Inventory ”.
“ Excess
Availability ” means, as of any date of determination,
the positive difference, if any, between (a) the lesser of
(i) the Aggregate Revolving Commitment as of such date and
(ii) the Borrowing Base Amount as of such date minus
any Reserves and (b)
the Aggregate Revolving Exposure as of such date.
“
Defaulting Lender ” has the meaning set forth in
Section 2.15(a).
“ Lender
Default ” has the meaning forth in Section
2.15(a).
“ Net
Orderly Liquidation Value Percentage ” means, as of any
date with respect to the determination of the relevant Borrowing
Base Percentage of Eligible Inventory or Eligible Work in Process
Inventory, the percentage as of such date assigned to the net
orderly liquidation value of Eligible Inventory or Eligible Work in
Process Inventory, as the case may be, in the most recent appraisal
of the Loan Parties’ Inventory by an independent
appraiser.
“
Non-Defaulting Lenders ” has the meaning set forth in
Section 2.15(b).
“
Reserves ” means, as of any date of determination,
such amounts as the Co-Collateral Agents may from time to time
establish and revise in good faith based on the lending practices
of the Co-Collateral Agents upon notice in the case of additional
categories of Reserves ( provided no Default has occurred and is
continuing, of not less than two (2) days) to the Borrower,
reducing the amount of Loans and Letters of Credit which would
otherwise be available to the Borrower under the lending formulas
provided for herein. Such amounts may include, but shall not be
limited to, amounts: (a) to reflect events, conditions,
contingencies or risks, which, as determined by the Co-Collateral
Agents in good faith, adversely affect or have a reasonable
likelihood of adversely affecting either (i) the Accounts
Receivable, the Inventory or the value thereof, (ii) the assets or
business operations of the Borrower or (iii) the Liens and other
rights of the Lenders or the Administrative Agent in the Collateral
(including the enforceability, perfection, priority and ranking
thereof); (b) to
- 3 -
reflect the
Co-Collateral Agents’ good faith belief that any collateral
report or financial information furnished by or on behalf of the
Borrower or the Guarantors to the Administrative Agent or any
Lender is incomplete, inaccurate or misleading; (c) in respect of
any state of facts which the Co-Collateral Agents determine in good
faith constitutes a Default; (d) to reflect the amount of any
dilution in respect of the Eligible Accounts, inventory shrinkage
or any liabilities of the Borrower (including, without limitation,
liabilities for unpaid Taxes, workers’ compensation, wages,
employee withholdings or deductions, amounts owed to suppliers or
workmen) which pursuant to any applicable laws, rules or
regulations of any Governmental Authority may result in the
imposition of a Lien capable of ranking senior to or pari passu
with the Lien of the Administrative Agent; (e) to reflect accrued
and unpaid royalties, fees or other charges payable by the Borrower
or any Guarantor in respect of licenses or other agreements to use
Intellectual Property owned by third parties; (f) to reflect any
rental payments (covering a period of three (3) months) or other
charges or other amounts (for such three-month period) which may at
any time be payable to lessors of real or personal property at or
in which Inventory or records of any Loan Party are located and
with respect to which the Administrative Agent shall not have
received a Collateral Access Agreement; (g) to reflect freight,
duty or other similar charges which may at any time arise in
connection with in-transit Inventory; or (h) in respect of Banking
Services and Hedging Agreements.
“
Settlement Date ” means the Amendment No. 5 Effective
Date and thereafter Tuesday of each week, unless such day is not a
Business Day in which case it shall be the next succeeding Business
Day, and every other Business Day designated by the Administrative
Agent as a “Settlement Date” by notice from the
Administrative Agent to each Lender.
“ Tax
Refund ” means the income tax refund of the Borrower in
an amount to be set forth on IRS Form 1139 prepared by Ernst &
Young LLP in respect of federal income taxes for the
Borrower’s 2008 fiscal year.
“ Tax
Refund Amount ” means, (a) during the period from
(i) the date of receipt by the Administrative Agent of a copy
of the Form 1139 filed with the Internal Revenue Service by the
Borrower in respect of the Tax Refund and copies of Forms 8302 and
8821 or such other relevant Internal Revenue Service forms
necessary to be filed with the Internal Revenue Service (as so
filed) in order for the Tax Refund to be paid directly into a
Blocked Account and for notices from the Internal Revenue Service
denying or reducing the amount of the Tax Refund be delivered to
the Administrative Agent,to (ii) the earlier to occur of
(A) September 30, 2009 and (B) the date on which the Borrower
receives the Tax Refund, an amount equal to the lesser of 75% of
the Tax Refund and $9,000,000 and (b) thereafter, $0.00.
“ Week
” means the time period commencing with the opening of
business on a Monday and ending on the end of business the
following Sunday.
(b)
Alternate Base Rate . Section 1.01 of the Credit Agreement
is hereby amended by deleting the definition of “
Alternate Base Rate ” in its entirety and substituting
the following therefor:
- 4 -
“ Alternate
Base Rate ” means, on any date, a variable rate of
interest per annum equal to the greatest of (a) the highest of the
“prime rate,” “reference rate,” “base
rate” or other similar rate as determined by the
Administrative Agent (or any successor to the Administrative Agent)
announced from time to time by HSBC Bank USA, National Association
(or any successor to HSBC Bank USA, National Association) (with the
understanding that any such rate may merely be a reference rate and
may not necessarily represent the lowest or best rate actually
charged to any customer by such bank), (b) the Federal Funds Open
Rate plus one percent (1.0%) and (c) the
30-Day LIBOR Rate plus one percent (1.0%). For purposes
of this definition: (i) “ Federal Funds Open Rate
” shall mean, for any day, the rate per annum determined by
the Administrative Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to
be the Open Rate for federal funds transactions as of the opening
of business for federal funds transactions among members of the
Federal Reserve System arranged by federal funds brokers on such
day, as quoted by Garvin Guybutler, any successor entity thereto,
or any other broker selected by the Administrative Agent, as set
forth on the applicable Telerate display page;
provided that if such day is not a
Business Day, the Federal Funds Open Rate for such day shall be the
Open Rate on the immediately preceding Business Day, or if no such
rate shall be quoted by a federal funds broker at such time, such
other rate as determined by the Administrative Agent in accordance
with its usual procedures; (ii) “ 30-Day LIBOR Rate
” shall mean, for any day, the
rate per annum determined by the Administrative Agent by dividing
(x) the Published Rate by (y) a number equal to 1.00
minus the percentage prescribed by
the Federal Reserve for determining the maximum reserve
requirements with respect to any eurocurrency funding by banks on
such day; and “ Published Rate ” shall mean the
rate of interest published each Business Day in The Wall Street
Journal “Money Rates” listing under the caption
“London Interbank Offered Rates” for a one month period
(or, if no such rate is published therein for any reason, then the
Published Rate shall be the eurodollar rate for a one month period
as published in another publication determined by the
Administrative Agent).
(c)
Applicable Margin . Section 1.01 of the Credit Agreement is
hereby amended by deleting the definition of “ Applicable
Margin ” in its entirety and substituting the following
therefor:
“
Applicable Margin ” means (a) with respect to ABR
Borrowings and Swing Line Borrowings, 3.00%, (b) with respect
to Eurodollar Borrowings, 4.00% and (c) with respect to the
Commitment Fees, 0.50%.
(d)
Borrowing Base Amount . Section 1.01 of the Credit Agreement
is hereby amended by deleting the definition of “
Borrowing Base Amount ” in its entirety and
substituting the following therefor:
“ Borrowing
Base Amount ”means, as of any date of determination, a
sum equal to (a) the Borrowing Base Percentage of Eligible
Receivables plus (b) the lesser of (i) the
Borrowing Base Percentage of Eligible Inventory and (ii) the
Eligible Inventory Amount as of such date plus
(c) the lesser
of (i) $25,000,000 and (ii) the Trademark OLV Amount as of
such date plus (d) the Tax Refund Amount as of
such date plus (e) the lesser of (i)
- 5 -
$2,000,000 and (ii)
the Borrowing Base Percentage of Eligible Work in Process Inventory
as of such date.
(e)
Borrowing Base Certificate . Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of “
Borrowing Base Certificate ” in its entirety and
substituting the following therefor:
“ Borrowing
Base Certificate ” means a certificate in substantially
the form of Exhibit A to Amendment No. 5, duly executed by a
Financial Officer of the Borrower and delivered to the
Administrative Agent, appropriately completed, by which such
Financial Officer shall certify to the Administrative Agent the
Borrowing Base Amount and the calculation thereof as of the date of
such certificate.
(f)
Borrowing Base Percentage . Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of “
Borrowing Base Percentage ” in its entirety and
substituting the following therefor:
“ Borrowing
Base Percentage ” means (a) with respect to Eligible
Receivables, 85%, (b) with respect to Eligible Inventory,
(i) during the period from the Amendment No. 5 Effective Date
to and including June 30, 2009, 90% of the Net Orderly Liquidation
Value Percentage with respect to Eligible Inventory as of the date
of determination of the Borrowing Base Percentage, and (ii) from
and after July 1, 2009, 85% of the Net Orderly Liquidation Value
Percentage with respect to Eligible Inventory as of the date of
determination of the Borrowing Base Percentage, and (c) with
respect to Eligible Work in Process Inventory, 85% of the Net
Orderly Liquidation Value Percentage with respect to Eligible Work
in Process Inventory as of the date of determination of the
Borrowing Base Percentage. Subject to the provisions of Section
10.02(b), the Borrowing Base Percentage with respect to each
category of assets may be increased or decreased by the
Co-Collateral Agents at any time and from time to time in the
exercise of good faith and based upon the lending practices of the
Co-Collateral Agents, consistent with criteria customary in the
commercial finance industry generally. The Administrative Agent
shall give the Borrower not less than two (2) Business Days prior
written notice of its determination to decrease the Borrowing Base
Percentage of any category of assets. The Borrower consents to any
such increases or decreases and acknowledge that decreasing the
Borrowing Base Percentage or increasing or imposing reserves may
limit or restrict the Extensions of Credit requested by the
Borrower.
(g)
Eligible Inventory . Section 1.01 of the Credit Agreement is
hereby amended by deleting the definition of “ Eligible
Inventory ” in its entirety and substituting the
following therefor:
“ Eligible
Inventory ” means Inventory (other than Eligible Work in
Process Inventory) located in the United States of America or in
transit as provided in clause (e) below subject to a fully
perfected first priority security interest in favor of the
Administrative Agent, for the ratable benefit of the Secured
Parties, pursuant to the Security Agreement which is not on
consignment from any third party and which conforms to the
representations and warranties contained in the Security Agreement.
Notwithstanding the foregoing, “ Eligible Inventory
” shall not include (a) obsolete or damaged
Inventory,
- 6 -
(b) Inventory
consisting of samples, promotional, marketing, packaging or
shipping materials or supplies or otherwise not of a type held for
sale in the ordinary course of the Borrower’s or a
Guarantor’s business, (c) Inventory not saleable within
one year from the date of acquisition or creation thereof, (d)
Inventory to be returned to suppliers, (e) any Inventory at
premises other than those owned and controlled by the Borrower or
any Guarantor except (i) any Inventory that would
otherwise be Eligible Inventory at locations that are leased by the
Borrower or any Guarantor (including public warehouse facilities at
which the Borrower’s Inventory is segregated from property of
third parties) may nevertheless be considered Eligible Inventory if
the Administrative Agent shall have received a Collateral Access
Agreement, duly authorized, executed and delivered by the owner and
lessor of such premises, and (ii) Inventory which would
otherwise be Eligible Inventory having a value of up to (x)
$10,000,000 divided by (y) the Borrowing Base
Percentage for Eligible Inventory in effect on the date of
determination of Eligible Inventory and that is located outside of
the United States of America and in transit to either the premises
of a Customs Broker in the United States of America or premises of
the Borrower or any Guarantor in the United States of America which
are either owned and controlled by the Borrower or such Guarantor
or leased by the Borrower or such Guarantor (but only if the
Administrative Agent shall have received a Collateral Access
Agreement, duly authorized, executed and delivered by the owner and
lessor of such premises, as the case may be),
provided that (A) the Administrative
Agent has a first priority perfected Lien upon, and control and
possession of, all originals of documents of title with respect to
such Inventory, (B) the Administrative Agent has received (I)
a Collateral Access Agreement, duly authorized, executed and
delivered by the Customs Broker handling the shipping and delivery
of such Inventory, (II) a copy of the certificate of marine
cargo insurance in connection therewith in which the Administrative
Agent has been named as an additional insured and loss payee in a
manner acceptable to the Administrative Agent and (III) a copy of
the invoice and manifest with respect thereto and (C) such
Inventory is not subject to any Letter of Credit, (D) the Borrower
shall have caused all bills of lading and other documents of title
relating to the goods being purchased by it which are outside the
United States of America and in transit to such premises to name
the Borrower as consignee, unless and until the Co-Collateral
Agents may direct otherwise or, in the event that the Co-Collateral
Agents shall have so directed, from time to time as the
Co-Collateral Agents may direct, the Borrower shall have caused the
Administrative Agent or such other financial institution or other
Person as the Co-Collateral Agents may specify to be named as
consignee, it being understood, without limiting any other rights
of the Administrative Agent, the Co-Collateral Agents or any Lender
hereunder, at any time on or after the occurrence of a Default, and
for so long as the same is continuing, the Administrative Agent
shall have the right to endorse and negotiate on behalf of, and as
attorney-in-fact for, the Borrower and the Guarantors any bill of
lading or other document of title with respect to such goods naming
the Borrower or any Guarantor as consignee to the Administrative
Agent; (E) three (3) originals of each bill of lading or other
document of title which, unless and until the Co-Collateral Agents
shall direct otherwise, shall have been delivered as follows:
(I) one (1) original to such Customs Broker as the Borrower
may specify (so long as the Administrative Agent has received a
Collateral Access Agreement duly authorized, executed and delivered
by such Customs Broker) and (II) two (2) originals sent to the
Administrative Agent or to such other Person as the Administrative
Agent may
- 7 -
designate for such
purpose; (F) the Borrower shall have obtained a copy (but not the
originals) of such bill of lading and other documents of title from
the Customs Broker; and (G) the Borrower shall have caused all
bills of lading or other documents of title relating to goods
purchased by the Borrower or any Guarantor which are outside the
United States of America and in transit to the premises of the
Borrower or such Guarantor or the premises of a Customs Broker in
the United States of America to be issued in a form so as to
constitute negotiable documents as such term is defined in the
Uniform Commercial Code; (f) Inventory that is subject to any
licensing, patent, royalty, trademark, trade name or copyright
agreement with any third party from whom the Borrower or any
Guarantor has received notice of a dispute in respect of any such
agreement or with respect to which the Administrative Agent has not
obtained a Collateral Access Agreement, duly authorized, executed
and delivered by such third party and (g) except as expressly
provided in clause (e) above with respect to Inventory in transit
and except for Eligible Work in Process Inventory of the Additional
Guarantor located in Puerto Rico, Inventory which is not located on
the Borrower’s or a Guarantor’s owned or leased
premises in the United States of America.
(h)
Grid Effectiveness Date . Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of “
Grid Effectiveness Date ” in its entirety.
(i)
Interest Coverage Ratio . Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of “
Interest Coverage Ratio ” in its entirety.
(j)
Leverage Ratio . Section 1.01 of the Credit Agreement is
hereby amended by deleting the definition of “ Leverage
Ratio ” in its entirety.
(k)
LIBO Rate . Section 1.01 of the Credit Agreement is hereby
amended by deleting the definition of “ LIBO Rate
” in its entirety and the following substituted
therefor:
“ LIBO
Rate ” means, with respect to any Eurodollar Borrowing,
for any Interest Period applicable thereto, the greater of (a) one
and three-quarters percent (1.75%) and (b) a rate of interest per
annum, as determined by the Administrative Agent, equal to the rate
for deposits in dollars for a period comparable to such Interest
Period which appears on the Reuters Page LIBOR01 (or such other
page as may replace LIBOR01 on the Reuters Monitor Money Rates
Service for the purpose of displaying such rates or such other
service as may be nominated by the British Bankers Association, for
the purpose of displaying London interbank offered rates for dollar
deposits) as of 11:00 a.m., London time, on the day that is two
Business Days prior to the first day of such Interest Period. If
such rate does not appear on Reuters Page LIBOR01 (or such other
replacement page), LIBO Rate shall be the rate per annum (rounded,
if necessary, to the nearest one hundred-thousandth of a percentage
point) at which deposits in dollars are offered by four major banks
in the London interbank market at approximately 11:00 a.m., London
time, on the day that is two Business Days prior to the first day
of such Interest Period to prime banks in the
London interbank
market for a period of one month commencing on the first day of
such Interest Period in an amount comparable to the principal
amount of such Eurodollar Borrowing. The Administrative Agent will
request the principal London office of each such bank to provide a
quotation of its rate. If at least two such quotations are provided
as requested, the rate for such Interest Period shall
- 8 -
be the arithmetic
mean of the quotations. If fewer than two quotations are provided
as requested, the rate for such Interest Period shall be the
arithmetic mean of the rates quoted by major banks in New York
City, selected by the Administrative Agent, at approximately 11:00
a.m., New York City time, on the date that is two Business Days
prior to the first day of such Interest Period for loans in dollars
to leading European banks for a period of one month commencing on
the first day of such Interest Period in an amount comparable to
such Eurodollar Borrowing. In the event that the Administrative
Agent is unable to obtain any such quotation as provided above, it
shall be deemed that LIBO Rate pursuant to a Eurodollar Borrowing
cannot be determined.
(l)
Permitted Acquisition . Section 1.01 of the Credit Agreement
is hereby amended by deleting the definition of “
Permitted Acquisition ” in its entirety and the
following substituted therefor:
“ Permitted
Acquisition ” means the purchase, holding or acquisition
of (including pursuant to any merger) any Capital Stock, evidences
of indebtedness or other securities (including any option, warrant
or other right to acquire any of the foregoing) of any other
Person, or the purchase or acquisition of (in one transaction or a
series of transactions (including pursuant to any merger)) any
assets of any other Person constituting a business unit (each an
“ acquisition ”), provided
that, (a) at the
time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing, (b) the aggregate amount of
consideration paid, and Indebtedness assumed, by the Borrower and
the Subsidiaries in connection with all such acquisitions made
during the period from and after the Amendment No. 5 Effective Date
shall not exceed $5,000,000, (c) such Person or business
unit, as the case may be, is in substantially the same business as
the Borrower, (d) the Managing Person of such Person shall have
approved or recommend such acquisition, (e) the Borrower shall
have complied with the provisions of Section 6.11 with respect to
such Person or assets and (f) before and immediately after giving
effect to such acquisition (i) the Fixed Charge Coverage Ratio
shall be not less than 1.50:1 and (ii) Excess Availability shall be
not less than $50,000,000.
(m)
Obligations . Section 1.01 of the Credit Agreement is hereby
amended by deleting the phrase “unless otherwise agreed upon
in writing by the Lenders,” in clause (c) of the definition
of “ Obligations ” and adding a new clause (d)
thereto to read in its entirety as follows:
and (d) all Banking
Services Obligations.
(n)
Revolving Maturity Date . Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of “
Revolving Maturity Date ” in its entirety and the
following substituted therefor:
“ Revolving
Maturity Date ” means January 31, 2011.
(o)
Swing Line Commitment . Section 1.01 of the Credit Agreement
is hereby amended by deleting the reference to “$0.00”
in the definition of “ Swing Line Commitment ”
and substituting “$5,000,000” therefor.
- 9 -
(p)
Telerate Page 3750 . Section 1.01 of the Credit Agreement is
hereby amended by deleting the definition of “ Telerate
Page 3750 ” in its entirety.
(q)
Commitments . Section 2.01 of the Credit Agreement is hereby
amended by deleting the first sentence thereof in its entirety and
the substituting the following therefor:
Subject to the terms
and conditions set forth herein, each Lender having a Revolving
Commitment agrees to make Revolving Loans to the Borrower from time
to time during the Availability Period in an aggregate principal
amount up to an amount that will not result in such Lender’s
Revolving Exposure exceeding such Lender’s Revolving
Commitment; provided that no Lender shall be
permitted or required to make Revolving Loans to the Borrower in
excess of an aggregate principal amount equal to (i) the lesser of
(A) an amount that will not result in such Lender’s Revolving
Exposure exceeding such Lender’s Revolving Commitment and (B)
such Lender’s Commitment Percentage of the Borrowing Base
Amount minus (ii) such Lender’s
Commitment Percentage of any Reserves.
(r)
Swing Line Loans . Section 2.05(a) of the Credit Agreement
is hereby amended by deleting the proviso thereto in its entirety
and substituting the following therefor:
provided that (i) immediately after
making each Swing Line Loan, (A) the aggregate outstanding
principal balance of the Swing Line Loans will not exceed the Swing
Line Commitment and (B) the Aggregate Revolving Exposure will not
exceed (I) the lesser of (x) the Aggregate Revolving Commitment and
(y) the Borrowing Base Amount minus (II) any Reserves, (ii) prior
thereto or simultaneously therewith the Borrower shall have
borrowed Revolving Loans, (iii) no Lender shall be in default of
its obligations under this Agreement and (iv) no Credit Party shall
have notified the Swing Line Lender and the Borrower in writing at
least one Business Day prior to the Borrowing Date with respect to
such Swing Line Loan, that the conditions set forth in Section 5.02
have not been satisfied and such conditions remain unsatisfied as
of the requested time of the making such Swing Line
Loan.
(s)
Prepayment of Loans . Section 2.08 of the Credit Agreement
is hereby amended by adding a new Section 2.08(g) thereto to read
in its entirety as follows:
(g) Immediately upon
receipt of the proceeds of the Tax Refund, the Borrower shall
prepay Revolving Borrowings in an amount equal to the amount of the
Tax Refund actually received by the Borrower by depositing such
proceeds in a Blocked Account.
(t)
Payments Generally; Pro Rata Treatment; Sharing of Setoff .
Section 2.09 of the Credit Agreement is hereby amended by adding
new Sections 2.09(f), 2.09(g) and 2.09(h) thereto to read in their
entirety as follows:
(f) Notwithstanding
anything in the contrary in Section 2.09(b) or in the Security
Agreement, any proceeds of Collateral received by the
Administrative Agent (i) not constituting either (A) a specific
payment of principal, interest, fees or other sum payable under the
Loan Documents (which shall be applied as specified by the
Borrower), (B) a mandatory prepayment (which shall be applied in
accordance with Section 2.08) or (C) amounts to be
- 10 -
applied from the Blocked Accounts
(which shall be applied in accordance with Section 2.16) or (ii)
after an Event of Default has occurred and is continuing and the
Administrative Agent so elects or the Required Lenders so direct,
such funds shall be applied ratably first , to pay any fees,
indemnities, or expense reimbursements including amounts then due
to the Administrative Agent and the Issuer from the Borrower (other
than in connection with Banking Services or Hedging Agreements),
second , to pay any fees or expense reimbursements then due
to the Lenders from the Borrower (other than in connection with
Banking Services or Hedging Agreements), third , to pay
interest then due and payable on the Loans ratably, fourth ,
to prepay principal on the Loans and unreimbursed Reimbursement
Obligations ratably, fifth , to pay an amount to the
Administrative Agent equal to one hundred five percent (105%) of
the aggregate undrawn face amount of all outstanding Letters of
Credit and the aggregate amount of any unpaid Letter of Credit
Exposure, to be held as cash collateral pursuant to Section 2.12,
sixth , to payment of any amounts owing with respect to
Banking Services and Hedging Agreements, and seventh , to
the payment of any other Obligation due to the Administrative Agent
or any Lender by the Borrower. Notwithstanding anything to the
contrary contained in this Agreement, unless so directed by the
Borrower, or unless a Default is in existence, neither the
Administrative Agent nor any Lender shall apply any payment which
it receives to any Eurodollar Loan, except (x) on the expiration
date of the Interest Period applicable to any such Eurodollar Loan
or (y) in the event, and only to the extent, that there are no
outstanding ABR Loans and, in any such event, the Borrower shall
pay the break funding payment required in accordance with Section
3.06. The Administrative Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any
and all such proceeds and payments to any portion of the
Obligations.
(g) The
Administrative Agent shall maintain, in accordance with its
customary procedures, a loan account (the “
Borrower’s Account ”) in the name of the
Borrower in which shall be recorded the date and amount of each
Extension of Credit made by the Lenders and the date and amount of
each payment in respect thereof; provided
that the failure by
the Administrative Agent to record the date and amount of any
Extension of Credit shall not adversely affect the obligations of
the Borrower to repay the Extensions of Credit in accordance with
the terms of this Agreement. Each month, the Administrative Agent
shall send to the Borrower a statement showing the accounting for
the Extensions of Credit made, payments made or credited in respect
thereof, and other transactions between the Lenders and the
Borrower during such month. The monthly statements shall be deemed
correct and binding upon the Borrower in the absence of manifest
error and shall constitute an account stated between the Lenders
and the Borrower unless the Administrative Agent receives a written
statement of the Borrower’s specific exceptions thereto
within thirty (30) days after such statement is received by the
Borrower. The records of the Administrative Agent with respect to
the loan account shall be conclusive evidence absent manifest error
of the amounts of Extensions of Credit and other charges thereto
and of payments applicable thereto.
- 11 -
(h) The
Borrower recognizes that the amounts evidenced by checks, notes,
drafts or any other items of payment relating to and/or proceeds of
Collateral may not be collectible by the Administrative Agent on
the date received. In consideration of the Administrative
Agent’s agreement to conditionally credit the
Borrower’s Account as of the Business Day on which the
Administrative Agent receives those items of payment, the Borrower
agrees that, in computing the charges under this Agreement, all
items of payment shall be deemed applied by the Administrative
Agent on account of the Obligations on (i) the Business Day the
Administrative Agent receives such payments via wire transfer or
electronic depository check or (ii) in the case of payments
received by the Administrative Agent in any other form, the
Business Day such payment constitutes good funds in the
Administrative Agent’s account. The Administrative Agent
shall not, however, be required to credit the Borrower’s
Account for the amount of any item of payment which is
unsatisfactory to the Administrative Agent and the Administrative
Agent may charge the Borrower’s Account for the amount of any
item of payment which is returned to the Administrative Agent
unpaid.
(u)
Optional Increase in Commitments . Section 2.10 of the
Credit Agreement is hereby deleted in its entirety and
[Intentionally Deleted] substituted therefor.
(v)
Letters of Credit . The first sentence of Section 2.11(a) of
the Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
The Borrower may
request the Issuer to issue letters of credit (the “
Letters of Credit ”; each, individually, a “
Letter of Credit ”) during the period from the
Effective Date to the thirtieth Business Day prior to the Revolving
Maturity Date, provided that immediately after the
issuance of each Letter of Credit (i) the Letter of Credit Exposure
of all Lenders would not exceed the Letter of Credit Commitment,
(ii) the Letter of Credit Exposure of all Lenders with respect to
(A) trade or commercial documentary Letters of Credit shall not
exceed $20,000,000 and (B) standby Letters of Credit shall not
exceed $10,000,000 and (iii) the Aggregate Revolving Exposure would
not exceed (A) the lesser of (x) the Aggregate Revolv
