AMENDMENT NO. 7 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
99.1
AMENDMENT
NO. 7
TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 7 (this “Amendment”), dated as of
February 12, 2010, by and among LIFETIME BRANDS, INC., (the
“Borrower”), the
several financial institutions party hereto and HSBC BANK USA, NATIONAL
ASSOCIATION, as Administrative Agent and Co-Collateral 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
Co-Collateral Agent, and the Administrative Agent are parties to the Second
Amended and Restated Credit Agreement, dated as of October 31, 2006 (as 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 has requested the Lenders to amend the Credit Agreement in certain
respects.
C. The
Administrative Agent has advised the Borrower that the Required 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. 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:
“Amendment No. 7” means
Amendment No. 7 to Second Amended and Restated Credit Agreement dated as of
February 12, 2010 among the Borrower, the Lenders party thereto and the
Administrative Agent.
“Amendment No. 7 Effective
Date” means February 12, 2010.
“Convertible Senior Notes”
means the 4.75% Convertible Senior Notes of the Borrower due 2011.
(b) Consolidated Fixed
Charges. Section 1.01 of the Credit Agreement is hereby
amended by deleting the definition of “Consolidated Fixed Charges”
in its entirety and substituting the following therefor:
“Consolidated Fixed Charges”
means, for any period, the sum of, without duplication, (a) Consolidated Cash
Interest Expense for such period, (b) the aggregate amount of prepayments and
scheduled principal payments of Indebtedness by the Borrower and its
Subsidiaries during such period (other than (i) prepayments and repayments of
the Obligations and (ii) repurchases of Convertible Senior Notes permitted
hereunder in an aggregate principal amount not to exceed $15,000,000),
determined in accordance with GAAP, (c) income taxes paid in cash during such
period by the Borrower and its Subsidiaries (excluding income taxes paid in cash
during the first fiscal quarter of the Borrower’s 2008 fiscal year on income
earned during the Borrower’s 2007 fiscal year and (d) the aggregate amount of
Restricted Payments paid by the Borrower in cash during such
period.
(c) Restricted
Payment. Section 1.01 of the Credit Agreement is hereby
amended by deleting the definition of “Restricted Payment” in its
entirety and substituting the following therefor:
“Restricted Payment” means, as
to any Person, any dividend or other distribution by such Person (whether in
cash, securities or other property) with respect to any shares of any class of
equity securities of such Person, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares or any option, warrant or other right to acquire any such
shares; provided that
repurchases by the Borrower of Convertible Senior Notes permitted by Section
7.14 shall not be deemed Restricted Payments.
(d) Investments, Loans, Advances
Guarantees and Acquisitions. Section 7.04 of the Credit
Agreement is hereby amended by deleting clause (i) thereof in its entirety and
substituting the following therefor:
(i) Permitted
Acquisitions by the Borrower or any Subsidiary; provided that the Borrower
shall have delivered to the Administrative Agent and the Lenders not less than
10 Business Days prior to the consummation of any such Permitted Acquisition a
certificate of a Financial Officer of the Borrower in form and substance
satisfactory to the Administrative Agent evidencing projected pro forma
compliance with Sections 7.15, 7.18, 7.19, 7.20, 7.21 and 7.22 after giving
effect to such Permitted Acquisition for the period from the date of such
Permitted Acquisition to the Revolving Maturity Date;
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(e) Prepayments of
Indebtedness. Section 7.14 of the Credit Agreement is hereby
deleted in its entirety and the following is substituted therefor:
Section
7.14 Prepayments of
Indebtedness
The
Borrower will not, and shall not permit any Subsidiary to, pay or obligate
itself to prepay any Indebtedness other than (a) prepayments of
Indebtedness under the Loan Documents and (b) repurchases from time to time
of Convertible Senior Notes, provided that (i) the
aggregate amount of all such repurchases shall not exceed a principal amount of
$15,000,000 and (ii) immediately before and immediately after giving effect
to each such repurchase, (A) no Default shall have occurred and be continuing
and (B) Excess Availability shall be not less than
$40,000,000.
(f) General. All
references to “this
Agreement” in the Credit Agreement and to “the Credit Agreement” in the
other Loan Documents shall be deemed to refer to the Credit Agreement as amended
hereby.
2. Conditions to
Effectiveness. This Amendment shall be effective upon the
satisfaction of each of the following conditions:
(a) The
Administrative Agent shall have received an executed counterpart of this
Amendment signed by the Borrower, the Required Lenders and the Administrative
Agent.
(b) The
Administrative Agent shall have received an executed counterpart of the
acknowledgement and consent annexed hereto duly executed by each of the
Guarantors.
(c) The
representations and warranties contained in the Credit Agreement shall be true
and correct in all material respects (except to the extent such representations
and warranties specifically relate to an earlier date) and, after giving effect
to the amendments set forth in Section 1 hereof, no Default or Event of Default
shall exist.
(d) The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Amendment No. 7 Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
(e) The
Borrower shall have paid the reasonable fees and disbursements of counsel to the
Administrative Agent in connection with this Amendment.
The
Administrative Agent shall notify the Borrower and the Credit Parties of the
Amendment No. 7 Effective Date, and such notice shall be conclusive and
binding.
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3. Representations and
Warranties. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that:
(a) The
representations and warranties set forth in the Loan Documents (other than the
representations and warranties made as of a specific date) are true and correct
in all material respects as of the date hereof and with the same effect as
though made on and as of the date hereof.
(b) After
giving effect to the amendments set forth in Section 1 hereof, no Default or
Event of Default and no event or condition which, with the giving of notice or
lapse of time or both, would constitute such a Default or Event of Default, now
exists or would exist.
(c) (i) The
execution, delivery and performance by the Borrower of this Amendment is within
its organizational powers and have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Borrower, (ii) this Amendment is the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, and (iii) neither this Amendment nor the
execution, delivery and performance by the Borrower hereof: (A) contravenes the
terms of the Borrower’s organization documents, (B) conflicts with or results in
any breach or contravention of, or the creation of any Lien under, any document
evidencing any contractual obligation to which the Borrower is a party or any
order, injunction, writ or decree to which the Borrower or its property is
subject, or (C) violates any requirement of law.
4. Effect; No
Waiver.
(a) The
Borrower hereby (i) reaffirms and admits the validity and enforceability of the
Loan Documents and all of its obligations thereunder and (ii) agrees and admits
that it has no defenses to or offsets against any such obligation. Except as
specifically set forth herein, the Credit Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their terms and are
hereby ratified and confirmed. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any existing or
future Default or Event of Default, whether known or unknown or any right, power
or remedy of the Administrative Agent or the Lenders under the Credit Agreement,
nor constitute a waiver of any provision of the Credit Agreement, except as
specifically set forth herein.
(b) The
Borrower hereby (i) reaffirms all of its agreements and obligations under the
Security Documents, (ii) reaffirms that all Obligations of the Borrower under or
in connection with the Credit Agreement as amended hereby are “Obligations” as that term is
defined in the Security Documents and (iii) reaffirms that all such Obligations
continue to be secured by the Security Documents, which remains in full force
and effect and is hereby ratified and confirmed.
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5. Release. AS MATERIAL CONSIDERATION FOR THE
EXECUTION OF THIS AMENDMENT BY THE ADMINISTRATIVE AGENT AND LENDERS PARTY HERETO
AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF
WHICH ARE HEREBY ACKNOWLEDGED, THE BORROWER, BY ITS EXECUTION OF THIS AMENDMENT,
AND THE GUARANTORS, BY THEIR EXECUTION OF THE ACKNOWLEDGMENT AND CONSENT, FOR
THEMSELVES AND ON BEHALF OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS,
EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE
“RELEASORS”), HEREBY WAIVE, RELEASE, REMISE,
ACQUIT AND DISCHARGE THE ADMINISTRATIVE AGENT AND THE LENDERS AND EACH AND ANY
OF THEIR RESPECTIVE PARENTS, AFFILIATES, DIRECTORS, OFFICERS, LENDER, EMPLOYEES,
REPRESENTATIVES, SHAREHOLDERS, ATTORNEYS, ACCOUNTANTS, CONSULTANTS, ADVISORS,
SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASEES”) OF AND FROM ANY AND ALL
CONTROVERSIES, DAMAGES, COSTS, LOSSES, CAUSES OF ACTION, SUITS, JUDGMENTS,
CLAIMS, RECOUPMENTS, COUNTERCLAIMS OR DEMANDS, OF EVERY TYPE, KIND, NATURE,
DESCRIPTION OR CHARACTER, WHETHER NOW EXISTING OR THAT COULD, MIGHT, OR MAY BE
CLAIMED TO EXIST, OF WHATEVER KIND OR NAME, WHETHER KNOWN OR UNKNOWN, LIQUIDATED
OR UNLIQUIDATED, FIXED OR CONTINGENT, FORESEEABLE OR UNFORESEEABLE, EACH AS
THOUGH FULLY SET FORTH HEREIN AT LENGTH, IN LAW OR EQUITY, WHICH ANY OF THE
RELEASORS PREVIOUSLY HAD FROM THE BEGINNING OF THE WORLD OR NOW HAVE AGAINST ANY
OF THE RELEASEES THROUGH THE DATE HEREOF, RELATED TO OR CONNECTED WITH THE LOAN
DOCUMENTS, THIS AMENDMENT, OR THE TRANSACTIONS CONTEMPLATED BY ANY OF THE
FOREGOING.
6. Miscellaneous.
(a) The
Borrower shall pay the Administrative Agent upon demand for all reasonable
expenses, including reasonable attorneys’ fees and expenses of the
Administrative Agent, incurred by the Administrative Agent in connection with
the preparation, negotiation and execution of this Amendment.
(b) THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS, BUT INCLUDING SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) AND
DECISIONS OF THE STATE OF NEW YORK.
(c) This
Amendment shall be binding upon the Borrower, the Administrative Agent and the
Lenders and their respective successors and assigns, and shall inure to the
benefit of the Borrower, the Administrative Agent and the Lenders and the
respective successors and assigns of the Administrative Agent and the
Lenders.
(d) This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
[Signature pages
follow.]
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AS
EVIDENCE of the agreement by the parties hereto to the terms and conditions
herein contained, each such party has caused this Amendment to be executed on
its behalf.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
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Senior
Vice President and Chief Financial
Officer
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LIFETIME
BRANDS AMENDMENT NO. 7
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Administrative Agent, Co-Collateral Agent, Issuer and
Lender
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By:
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/s/ Xxxxxx
Getty
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Xxxxxx
X. Getty, Jr.
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Vice
President
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LIFETIME
BRANDS AMENDMENT XX. 0
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XXXXXXXX XXXXX XXXX, X.X.,
as Syndication Agent, Co-Collateral Agent and Lender
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By:
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/s/
Xxxxxx X. Xxxxxxx
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| Name: |
Xxxxxx
X. Xxxxxxx
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| Title: |
Vice
President
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LIFETIME
BRANDS AMENDMENT NO. 7
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CITIBANK, N.A.,
as Co-Documentation Agent and Lender
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By:
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/s/
Xxxxx X. Xxxxx
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| Name: |
Xxxxx
X. Xxxxx
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| Title: |
Vice
President
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LIFETIME
BRANDS AMENDMENT NO. 7
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent and Lender
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By:
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/s/
Xxxxxxxxx Xxxxxx
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| Name: |
Xxxxxxxxx
Xxxxxx
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| Title: |
Senior
Vice President
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LIFETIME
BRANDS AMENDMENT NO. 7
ACKNOWLEDGEMENT
AND CONSENT
Each of
the undersigned Guarantors hereby (1) consents to the execution and delivery by
the Borrower of the foregoing Amendment No. 7; (2) confirms and agrees that it
is a Guarantor party to the Guarantee Agreement and a Grantor party to the
Security Agreement and that the Guarantee Agreement, the Security Agreement and
the other Loan Documents to which it is a party are, and shall continue to be,
in full force and effect in accordance with their respective terms, (3) agrees
that the definition of “Obligations” (and any other
term referring to the indebtedness, liabilities and obligations of the Borrower
to the Administrative Agent or any of the Lenders) in the Guarantee Agreement
and the other Loan Documents shall include the Indebtedness of the Borrower
under the foregoing Amendment No. 7; (4) agrees that the definition of “Credit Agreement” in the
Guarantee Agreement and the other Loan Documents to which it is a party is
hereby amended to mean the Credit Agreement as modified by the foregoing
Amendment No. 7; (5) reaffirms its continuing liability under its Guarantee
Agreement (as modified hereby); (6) reaffirms all of its agreements and
obligations under the Security Documents; (7) reaffirms that all
Obligations of the Borrower under or in connection with the Credit Agreement as
modified by the foregoing Amendment No. 7 are “Obligations” as that term is
defined in the Security Documents; and (8) reaffirms that all such Obligations
continue to be secured by the Security Documents, which remain in full force and
effect and are hereby ratified and confirmed.
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OUTLET
RETAIL STORES, INC.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
Senior
Vice President and Chief Financial Officer
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PFALTZGRAFF
FACTORY STORES, INC.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
Senior
Vice President and Chief Financial Officer
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SYRATECH
ACQUISITION CORPORATION
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
Senior
Vice President and Chief Financial Officer
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LTB
DE MEXICO, S.A. DE C.V.
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By:
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/s/
Xxxxxxxx Xxxxxxx
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Xxxxxxxx
Xxxxxxx
Director
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TMC
ACQUISITION INC.
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| By: | /s/ Xxxxxxxx Xxxxxxx | ||
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Xxxxxxxx
Xxxxxxx
Senior Vice President and Chief Financial Orficer
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