TWELFTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR REVOLVING CREDIT AGREEMENT
Exhibit 10.3
TWELFTH AMENDMENT TO SECOND AMENDED AND RESTATED
SENIOR REVOLVING CREDIT AGREEMENT
SENIOR REVOLVING CREDIT AGREEMENT
This TWELFTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR REVOLVING CREDIT AGREEMENT (this
“Amendment”) is made as of July 19, 2006, by and among ENESCO GROUP, INC., an Illinois corporation
(the “Borrower”), the Borrowing Subsidiaries that may from time to time become a party to the
Second Amended and Restated Senior Revolving Credit Agreement, the Lenders, and BANK OF AMERICA,
N.A. (successor by merger to Fleet National Bank), a national banking association, as Agent.
RECITALS
The Borrower, the Borrowing Subsidiaries, the Lenders and the Agent are parties to a certain
Second Amended and Restated Senior Revolving Credit Agreement dated as of June 16, 2003, as amended
by a First Amendment dated as of March 5, 2004; a Second Amendment dated as of August 10, 2004; a
Third Amendment dated as of November 2, 2004; a Fourth Amendment dated as of November 22, 2004; a
Fifth Amendment dated as of January 28, 2005, as amended by a letter agreement dated as of February
7, 2005; a Sixth Amendment dated as of March 29, 2005; a Seventh Amendment dated as of May 16,
2005; an Eighth Amendment dated as of July 7, 2005, as amended by a letter agreement dated as of
July 28, 2005; a Ninth Amendment dated as of August 31, 2005; a Tenth Amendment dated as of
December 21, 2005; and an Eleventh Amendment dated as of March 31, 2006 (as the same may be further
amended or restated from time to time, collectively, the “Credit Agreement”), pursuant to which the
Lenders have, subject to the terms and conditions set forth therein, made certain credit facilities
available to the Borrower and the Borrowing Subsidiaries including those evidenced by the Notes
executed and delivered pursuant to the Credit Agreement. The parties hereto have agreed to further
modify the Credit Agreement as set forth herein. All capitalized terms used herein and not
otherwise defined herein shall have their meanings as defined in the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Upon satisfaction in full, on or prior to July 19, 2006 (i.e. not later than midnight, New
York time, on July 19, 2006), of the conditions precedent set forth in Section 3 below, the Credit
Agreement is amended as follows:
(a) The following definitions in ARTICLE I of the Credit Agreement are amended and restated
in their entirety to read as follows:
“Borrowing Capacity” means the lesser of:
(x) the Maximum Borrowing Amount, and
(y) the sum of (i) eighty-five percent (85%) of Accounts Receivable of
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the Borrower, Xxxxx, the Canadian Subsidiary, the Hong Kong Subsidiary and the
U.K. Credit Parties which are not Ineligible Accounts, provided that not
more than $12,000,000 will be included in the Borrowing Capacity pursuant to this
clause (y) with respect to Accounts Receivable of the Canadian Subsidiary, (ii) the
lesser of (A) the sum of thirty-three percent (33%) of the Eligible Inventory of
the Borrower, Xxxxx, the Canadian Subsidiary and the U.K. Credit Parties other than
Eligible Discontinued Inventory and ten percent (10%) of Eligible Discontinued
Inventory, and (B) $12,500,000, provided that not more than $24,000,000
will be included in the Borrowing Capacity with respect to United Kingdom inventory
and accounts receivable in the aggregate, (iii) during such time as the Borrower
continues to own the real estate owned by the Borrower on the Ninth Amendment Date
and located in Itasca, Illinois seventy percent (70%) of the appraised fair market
value of such real estate, such appraised fair market value to be determined by the
Agent based on an appraisal (or, if updated by the Agent in its sole discretion
from time to time, the most recent appraisal) in form and substance, and by an
appraiser, acceptable to the Agent in its sole discretion, and (iv) between the
Twelfth Amendment Date and September 15, 2006, the Permitted Overadvance Amount
(but this clause (iv) shall be zero after September 15, 2006), minus (v)
the amount of reserves in respect of Canada Preferential Indebtedness, Hong Kong
Preferential Indebtedness, U.K. Preferential Indebtedness and any Unpaid Supplier
Reserve, such amounts under this clause (v) to be determined by the Agent (which
determination may occur from time to time) in its discretion (such discretion to be
exercised in its reasonable business judgment) as a result of conducting a
commercial finance examination or otherwise (such amount to remain at zero in
respect of Hong Kong Preferential Indebtedness so long as the Agent’s lien on Hong
Kong accounts receivable and on each Hong Kong Controlled Account remains a fixed
charge).
“Default” or “Event of Default” mean an event described in Article VII hereof.
“Facility Termination Date” means September 15, 2006.
“Maximum Borrowing Amount” means between the Twelfth Amendment Date and
September 15, 2006, $63,000,000 for Loans (excluding Letters of Credit and Bankers’
Acceptances) and $7,000,000 for Letters of Credit and Bankers’ Acceptances.
“Obligations” means all unpaid principal of and accrued and unpaid interest on
the Notes, all accrued and unpaid fees and all expenses, reimbursement obligations
pursuant to Letters of Credit issued at the request of any Credit Party,
indemnities and other obligations of the Credit Parties or any of them to the Agent
or any of the Lenders or any indemnified party hereunder arising under the Loan
Documents, including without limitation the Borrowing Subsidiary Obligations, and
all overdraft obligations, fees, costs, charges,
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expenses and other obligations of the Credit Parties or any of them to the
Agent or any of the Lenders or any indemnified party hereunder arising under any
cash management agreement (including ACH transactions but excluding contracts or
other arrangements to purchase foreign currency) or operating or deposit account.
“Prime Rate” means the variable per annum rate of interest designated by Bank
of America, N.A. from time to time as its prime rate or base rate. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
being charged to any customer.
(b) The following definitions are added to ARTICLE I of the Credit Agreement in appropriate
alphabetical order:
“Additional Collateral Date” means that date that the Borrower has complied
with clauses (a), (b) and (c) of Section 6.31 hereof and Agent has a valid,
perfected first lien on all of the Collateral referred to therein.
“Dormant Subsidiaries” means Subsidiaries of the Borrower that have less than
$1,000 (valued at the greater of book value or fair market value) in assets and
that conduct no business and are not parties to any contracts or agreements.
“Eligible Discontinued Inventory” means Eligible Inventory which is designated
on the Borrower’s (or a Subsidiary of the Borrower’s) books and records as
discontinued inventory.
“Overadvance Amount” means the amount by which (A) the Obligations exceed (B)
the sum of clause (i) plus clause (ii) plus clause (iii) minus clause (v) of clause
(y) of the definition of Borrowing Capacity.
“Permitted Overadvance Amount” means, as of any date, the amount for such date
shown on the Twelfth Amendment Overadvance Covenant Spreadsheet.
“Transfer or Business Commencement Action” means any transfer, assignment or
contribution of any asset to any Person that, prior to such transfer, assignment or
contribution, was a Dormant Subsidiary, or any commencement or continuation of any
business by any Person that prior to such commencement or continuation of business
was a Dormant Subsidiary, or the execution of any contract or agreement by any
Person that, prior to such execution was a Dormant Subsidiary.
“Twelfth Amendment Cash Receipts and Cash Disbursements Projection and
Covenants Spreadsheet” means the spreadsheet delivered by the Borrower to the Agent
on the Twelfth Amendment Date pursuant to clause (xvi) of Section
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6.1 hereof.
“Twelfth Amendment Date “ means the date that the Twelfth Amendment to this
Agreement takes effect.
“Twelfth Amendment Overadvance Covenant Spreadsheet” means the spreadsheet
attached to the Twelfth Amendment hereto as Exhibit A thereto.
(c) The following sentence is added to the end of sentence of Section 2.10:
Notwithstanding the foregoing or any provision of Section 2.8 or any other
provision hereof (but subject to Section 2.11), (a) no Loans or other Advances will
be (and no Loans or Advances may be converted to) LIBOR Advances or Cost of Funds
Advances at any time after the Twelfth Amendment Date and all Loans and other
Advances will be Alternate Base Rate Advances on and after the Twelfth Amendment
Date, (b) except as otherwise provided in clause (c) of this sentence or in Section
2.11, the interest rate payable on all Loans and Advances from and after the Twelfth
Amendment Date shall be the sum of the Alternate Base Rate plus 2% per annum, and
(c) at any time during which there is an Overadvance Amount, the interest rate
payable on the Overadvance Amount shall be the Alternate Base Rate plus 3% per annum
and the interest rate payable on the portion of the Loans and Advances other than
the Overadvance Amount shall be the Alternate Base Rate plus 2% per annum.
(d) The last sentence of Section 2.11 is amended and restated in its entirety to read as
follows:
During the continuance of a Default, each Loan and other Advance shall bear interest
at a rate equal to the sum of (a) the rate provided therefor in Section 2.10 or
otherwise applicable thereto, plus (b) 2% per annum (the sum of (a) and (b) being
the “Default Rate”).
(e) Section 2.24 is amended and restated in its entirety to read as follows:
2.24 Usage Fee and Extension Fees. In addition to the Facility Fee,
Commitment Fee, and all other amounts payable hereunder and previously paid
hereunder, the Borrower shall pay to the Agent for the account of the Lenders, (a)
(i) on the first Business Day in each month, commencing on January 1, 2006 and
continuing through and including May 1, 2006, a fee in the amount of 0.10% (10
basis points) of the highest amount of Loans that were outstanding on any day in
the immediately preceding month, and (ii) on the first Business Day in each month,
commencing on June 1, 2006 and continuing until the Facility Termination Date, a
fee in the amount of 0.20% (20 basis points) of the highest amount of Loans that
were outstanding on any day in the immediately preceding month, (b) on January 1,
2006, a fee in the amount of $75,000, (c) on February 1, 2006, a fee in the amount
of $150,000, (d) on March 1, 2006, a fee in the amount of $250,000 (e) on April 1,
2006, a fee in the amount of $275,000, (f) on
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May 1, 2006, a fee in the amount of $750,000, (g) on June 1, 2006, a fee in
the amount of $750,000, and (h) on the earlier of (i) the first date after the
Twelfth Amendment Date that an Event of Default occurs, (ii) the date that the
Obligations are paid in full and all Letters of Credit and Bankers Acceptances
expire, are returned to the Agent for cancellation or are secured by cash
collateral in a manner satisfactory to the Agent and the Commitment hereunder is
terminated and (iii) the Facility Termination Date, a fee (fully earned as of the
Twelfth Amendment Date) in the amount of $2,100,000 provided that, (i) the
fee payable under clause (h) of this paragraph will be reduced to $1,400,000 if, on
or before September 1, 2006 (i.e. not later than midnight, New York time, on
September 1, 2006), the Obligations are paid in full and all Letters of Credit and
Bankers Acceptances expire, are returned to the Agent for cancellation or are
secured with cash collateral in a manner satisfactory to the Agent and the
Commitment hereunder is terminated.
(f) Clause (xv) of Section 6.1 is amended and restated in its entirety to read as follows:
(xv) On or before Wednesday of every week, commencing on the next Wednesday
after the Twelfth Amendment Date, (A) a Borrowing Base Certificate in the form of
Exhibit C-1 hereto showing the calculations necessary to determine Borrowing
Capacity, which certificates shall have been signed by the Borrower’s Chief
Financial Officer or Treasurer, provided that, even though the amount of Accounts
Receivable set forth on such Exhibit C-1 shall in each case be as of the end of the
week preceding the date that such Borrowing Base Certificate is delivered
hereunder, the amount of Inventory reflected in such Exhibit C-1 shall in each case
be the amount of Inventory as of the end of the month most recently ended prior to
the end of the week preceding the date of delivery of such Borrowing Base
Certificate (e.g., the Borrowing Base Certificate delivered on February 16, 2005
shall set forth Accounts Receivable as of February 11, 2005 and Inventory as of
January 31, 2005), and (B) a report signed by the Borrower’s Chief Financial
Officer or Treasurer setting forth (1) as of the end of the week preceding the
delivery of such report, the amount of the Obligations and the amount of the
Overadvance Amount, (2) the amount of cumulative cash disbursements made by the
Borrower and its Subsidiaries and of cash received by the Borrower in payment of
accounts, dividends and other transfers from its Subsidiaries, interest in respect
of its bank deposits and from its account debtors, royalties in respect of its
license arrangements, and sales taxes in respect of its customers during the two
weeks ended at the end of the week preceding the delivery of such report, and (3) a
comparison of each of the amounts set forth in clauses (1) and (2) of this clause
(xv) with the amounts projected as of the end of the week preceding the delivery of
such report (with respect to clause (1)) and for the applicable period (with
respect to clause (2)) by the Borrower in the Twelfth Amendment Overadvance
Covenant Spreadsheet (with respect to clause (1)) and the Twelfth Amendment Cash
Receipts and Cash Disbursements Projection and Covenants Spreadsheet delivered by
the Borrower
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to the Agent pursuant to clause (xvi) of this Section 6.1 (with respect to
clause (2)).
(g) The following clause (xvi) is added to the end of Section 6.1 after clause (xv) thereof:
(xvi) On the Twelfth Amendment Date, the Borrower shall deliver to the Agent,
in form and content satisfactory to the Agent and the Lenders, the Twelfth
Amendment Cash Receipts and Cash Disbursements Projection and Covenants
Spreadsheet, which shall be signed by the Borrower’s Chief Financial Officer or
Treasurer.
(h) Sections 6.12.1 and 6.12.3 are deleted and shall be referred to in the Credit Agreement
as “Intentionally Deleted”.
(i) Section 6.24 is amended and restated in its entirety to read as follows:
6.24 Retention of Investment Banker; Obtaining of Commitment. (a)
Without limiting the continuing obligations of the Borrower under Section 6.26
hereof, on or before the Twelfth Amendment Date the Borrower shall have retained
Xxxxxxxx & Company, Inc. or another investment banker acceptable to the Agent for
the purpose of (i) seeking to find a buyer or buyers for the Borrower and each of
its Subsidiaries or all or substantially all of their assets, (ii) seeking to find
a replacement credit facility to pay the Obligations in full in cash, (iii) seeking
to find an investor for an equity investment in conjunction with which the
Obligations would be paid in full in cash, or (iv) seeking to pursue a
recapitalization in conjunction with which the Obligations would be paid in full in
cash. The Borrower shall continue to retain such investment banker acceptable to
the Agent, through September 15, 2006, and the Borrower shall authorize and direct
such investment banker to update the Agent as and when requested by the Agent, and
in any event not less frequently than weekly (which weekly updates may, unless
otherwise requested by the Agent, be by telephone) regarding the status (including,
without limitation, the Persons contacted), projected timing, and projected terms
with respect to any transaction referred to in clauses (i) through (iv) of the
preceding sentence. Promptly upon the Agent’s request from time to time, the
Borrower shall deliver to the Agent a written report describing in reasonable
detail the status (including, without limitation, the Persons contacted) of the
efforts by the Borrower to arrange any such transaction and all material actions
taken in pursuit of any such transaction since the last such report was delivered
to the Agent.
(b) The Borrower will obtain and provide to the Agent on or before August 7,
2006 a binding written commitment or offer, executed subject only to customary
conditions (but executed after completion of due diligence and therefore not
subject to any due diligence condition), executed by a Person that is not an
Affiliate of the Borrower and which at the time of such commitment or offer
demonstrates to the satisfaction of the Agent that such Person has the
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financial resources available to consummate the transaction that is the
subject of the commitment or offer, which commitment or offer sets forth such
Person’s commitment or offer to consummate a transaction referred to in clause (i),
(ii), (iii), or (iv) of subsection (a) of this Section 6.24 that would result in
the payment in full in cash of the Obligations.
(j) The following Section 6.31 is added after Section 6.30:
6.31 Additional Collateral and Guarantor. The Borrower and each
Subsidiary of the Borrower shall execute and deliver, and shall cause all of its
Subsidiaries (other than Dormant Subsidiaries) to execute and deliver, to the Agent
such documents and shall take and cause its Subsidiaries to take, such actions, as
are requested by the Agent in order for the Agent to have, as security for all of
the Obligations and the guaranties of the Guarantors, (a) on the Twelfth Amendment
Date (to the extent not already in effect), a valid, enforceable and perfected
first lien on all assets of each of such Persons that are organized in the United
States, whether such assets are now owned or hereafter acquired, wherever located,
including without limitation all inventory, accounts, equipment, general
intangibles (including all intellectual property), deposit accounts, and investment
property (including a pledge and control of all of the stock of each of the direct
Subsidiaries of the Borrower and each of its Subsidiaries organized in the United
States), subject only to such exceptions as may be approved by the Agent in its
discretion, (b) within seven days after the Twelfth Amendment Date (to the extent
not already in effect), filings with the United States Patent and Trademark Office
with respect to such of their intellectual property assets as the Agent may desire
to have such filings, and (c) within 15 days after the Twelfth Amendment Date (to
the extent not already in effect), with respect to Subsidiaries not organized in
the United States except for Enesco France S.A., a valid, enforceable and perfected
first lien on all assets of each of such Persons that are not organized in the
United States, to the extent permitted by the laws of the jursidiction of such
Subsidiary, whether such assets are now owned or hereafter acquired, wherever
located, including without limitation all inventory, accounts, equipment, general
intangibles (including all intellectual property), deposit accounts, and investment
property (including a pledge and control of all of the stock of each of its
Subsidiaries not organized in the United States, including Enesco France S.A., but
excluding the real estate known as Xxx Xxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx,
Xxxxxxxx), subject only to such exceptions as may be approved by the Agent in its
discretion. Notwithstanding any other provision of this Agreement, the Borrower
shall not form or acquire or permit to be formed or acquired any Subsidiary, and
shall not take or permit to occur any Transfer or Business Commencement Action with
respect to any Dormant Subsidiary unless, prior to forming, acquiring, or
permitting to be formed or acquired any such Subsidiary, or taking or permitting to
occur such Transfer or Business Commencement Action, the Borrower causes such
Subsidiary to become a Guarantor of the Obligations and to grant to the Agent
valid, enforceable and perfected first liens on all assets of such
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Subsidiary. In addition to the foregoing, within 21 days after the Twelfth
Amendment Date, the Borrower shall cause Enesco France S.A. to become a Guarantor
and a Credit Party hereunder to the extent permitted by the laws of France.
(k) The introductory language of Article VII is amended and restated in its entirety to read
as follows:
The occurrence of any one or more of the following events shall constitute a
Default and an Event of Default:
(l) Section 7.4 is amended and restated in its entirety to read as follows:
7.4 The breach by the Borrower (other than a breach which constitutes a Default
under Section 7.1, 7.2 or 7.3) of any of the terms or provisions of this Agreement.
(m) The following Section 7.17 is added to the end of Article VII of the Credit Agreement:
7.17 The occurrence of any one or more of the following: (a) the actual cash
received by the Borrower in payment of accounts, dividends and other transfers from
its Subsidiaries, interest in respect of its bank deposits and from its account
debtors, royalties in respect of its license arrangements, and sales taxes in
respect of its customers during any two week period ending after the Twelfth
Amendment Date is more than 15% less than the amount of cash projected to be
received by the Twelfth Amendment Cash Receipts and Cash Disbursments Projection and
Covenants Spreadsheet, (b) the actual cumulative cash disbursements made by the
Borrower and its Subsidiaries between the Twelfth Amendment Date and any date listed
in the Twelfth Amendment Cash Receipts and Cash Disbursements Projection and
Covenants Spreadsheet shall be more than 10% greater than the amount of cash
disbursements projected to be made between such dates by the Twelfth Amendment Cash
Receipts and Cash Disbursements Projection and Covenants Spreadsheet, or (c) the
Overadvance Amount at the end of any week is greater than the amount for the end of
such week shown on the Twelfth Amendment Overadvance Covenant Spreadsheet.
(n) The references to “Loans” in Section 11.2 are deleted and replaced with “Obligations”.
(o) The form of Exhibit C-1 (Borrowing Base Certificate) is deleted in its entirety and is
replaced with the form of Exhibit C-1 (Borrowing Base Certificate) attached to this
Amendment as Exhibit B.
2. Subject to the satisfaction of the conditions set forth in Section 3 hereof, effective as
of the Amendment Effective Date, the Lenders waive the Events of Default as of and
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including the Twelfth Amendment Date under Sections 2.1, 6.12.1 and 6.12.3 of the Credit
Agreement or in any notice sent by the Agent to Borrower prior to the Twelfth Amendment Date,
including that certain notice dated June 8, 2006 (the “Specified Defaults”). The waiver set forth
in this Section 2 does not waive any Event of Default other than the Specified Defaults and does
not waive any Specified Default that continues or reoccurs after the Amendment Effective Date, and
such waiver shall not entitle the Borrower to any future waiver in similar or other circumstances.
3. The amendments set forth in Section 1 hereof and the waiver set forth in Section 2 hereof
shall become effective as of the date that the following conditions shall have been satisfied (the
date that such amendments take effect being the “Amendment Effective Date”), provided,
however, that the amendments set forth in Section 1 hereof and the waiver set forth in Section 2
hereof shall not take effect unless such conditions have been satisfied on or before July 19, 2006
(i.e. not later than midnight, New York time, on July 19, 2006):
(a) The Lenders shall have executed this Amendment and shall have received a copy of this
Amendment duly executed by the Borrower, the Borrowing Subsidiaries and the Guarantors.
(b) The Borrower shall have paid to counsel for the Agent the amount of their reasonable
fees and disbursements owed to such counsel in connection with the Credit Agreement, this
Amendment and matters related hereto and thereto, and the Borrower shall have paid the fees
and disbursements owed or paid to any appraisers and consultants retained by the Agent in
connection with the Credit Agreement and the Loans.
(c) The Borrower and each Subsidiary of the Borrower shall have executed such documents and
taken such actions as are required by Section 6.31 and by clause (xvi) of Section 6.1 of the
Credit Agreement (each as added by this Amendment) to be executed and taken on the Twelfth
Amendment Date.
(d) The Agent shall have received a Uniform Commercial Code search report with respect to
assets of the Borrower and Subsidiaries organized in the United States and such reports as
may be required by the Agent with respect to Subsidiaries that are not organized in the
United States, in each case confirming that the security interest and lien of the Agent in
the additional Collateral granted by the Borrower and its Subsidiaries to the Agent as
required by Sections 6.31 of the Credit Agreement are not subject to any prior liens of
record.
4. (a) The Borrower represents and warrants to the Agent and the Lenders that (a) as of the
Twelfth Amendment Date, each of the Subsidiaries of the Borrower, except for Dormant Subsidiaries
and Enesco France S.A., are Guarantors of the Obligations, and (b) as of the Twelfth Amendment
Date, the following Persons are the only Dormant Subsidiaries: Lilliput Lane Ltd, Border Fine Arts
Co. Ltd, Chiltern Collection (1985) Ltd, Fine Ceramic Transfers Ltd, Battersea Enamels Ltd, Bilston
Enamels Ltd, Masterpiece Enamels Ltd, Enesco Enamels Ltd, The Enamel Collection Ltd, Enamel
Distributors Ltd, Bilston & Battersea Enamels (London) Ltd, Dartington Crystal Ltd, Devon Crystal
Ltd, Dartington Glass Ltd, Xxxxxxx Home Productos de Limpeza Ltd. and Enesco Import GmbH.
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(b) Each of the Credit Parties and Lenders acknowledges and agrees that any reference in a
Guarantee, Security Agreement or other Loan Document to a guaranty of the Obligations or security
for the Obligations being made to or granted in favor of the Agent (or the Agent as agent for the
Lenders) shall mean and include a guaranty of and security for the Obligations owed to the Lenders
for Loans and Advances made under this Agreement and Letters of Credit and Bankers Acceptances
issued under this Agreement and all other Obligations owed to such Lenders or their indemnified
parties that are included within the definition herein of “Obligations”.
5. Except as amended, modified or supplemented by this Amendment, all of the terms,
conditions, covenants, provisions, representations, warranties and conditions of the Credit
Agreement shall remain in full force and effect and are hereby acknowledged, ratified, confirmed
and continued as if fully restated hereby.
6. The invalidity or unenforceability of any term or provision hereof shall not affect the
validity or enforceability of any other term or provision hereof or contained in the Credit
Agreement.
7. It is the intention of the parties hereto that this Amendment shall not constitute a
novation and shall in no way adversely affect or impair performance of the obligations of the
Borrower, the Borrowing Subsidiaries or the Guarantors under the Credit Agreement and the other
Loan Documents.
8. Regardless of whether the conditions in Section 3 hereof are satisfied and whether or not
the amendments in Section 1 and the waiver in Section 2 take effect, each of the Borrower, the
Borrowing Subsidiaries and the Guarantors hereby (a) confirms and ratifies the Obligations incurred
by it under the Credit Agreement and the other Loan Documents, (b) acknowledges that, as of the
date hereof, neither the Borrower, the Borrowing Subsidiaries nor any of the Guarantors has any
defense, offset, counterclaim, or right of recoupment against the Agent or any Lender with respect
to any of such Obligations or any other matter, and (c) on its own behalf and on behalf of its
directors, officers, shareholders, employees, successors and assigns jointly and severally waives,
releases and discharges the Lenders, the Agent, their parent companies, subsidiaries, affiliates,
officers, directors, employees, agents, attorneys, predecessors, successors and assigns, from any
and all claims, demands, actions or causes of action arising out of or in any way relating to the
Credit Agreement, the other Loan Documents or otherwise, and/or any documents, agreements, dealings
or other matters connected with the Credit Agreement or the other Loan Documents or otherwise, and
including without limitation all known and unknown matters, claims, transactions or things
occurring prior to the date of this Amendment relating to the Credit Agreement, the other Loan
Documents or otherwise.
9. This Amendment is to be governed and construed in accordance with the laws of the
Commonwealth of Massachusetts (without regard to the conflict of laws or choice of law principles
of the Commonwealth of Massachusetts).
10. This Amendment may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties thereto may execute this Agreement by
signing any such counterpart. This Amendment shall be effective when it has been
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executed by the Borrower, each of the Borrowing Subsidiaries, the Guarantors, the Agent and
the each of the Lenders, and the amendments set forth in Section 1 hereof shall take effect on the
Amendment Effective Date.
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IN WITNESS WHEREOF, the foregoing has been executed as an instrument under seal as of the date
first above written.
ENESCO GROUP, INC. | ||||||
By: | /s/ Xxxxx Xxxxxxxxxx Xxxxx
|
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Name: Xxxxx Xxxxxxxxxx Xxxxx | ||||||
Title: Chief Financial Officer | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
|
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Treasurer | ||||||
BANK OF AMERICA, N.A., as Agent and as | ||||||
lender | ||||||
By: | /s/ C. Xxxxxxxxxxx Xxxxx
|
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Name: C. Xxxxxxxxxxx Xxxxx | ||||||
Title: Senior Vice President | ||||||
LASALLE BANK NATIONAL ASSOCIATION |
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By: | /s/ Xxxxx X. Xxxxxxx
|
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Name: Xxxxx X. Xxxxxxx | ||||||
Title: Senior Vice President | ||||||
N.C. CAMERON & SONS LIMITED | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
|
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Treasurer |
[Signature Page to Twelfth Amendment to Credit Agreement ]
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XXX XXXXXX SEAL of | ||||||
ENESCO INTERNATIONAL | ||||||
(H.K.) LIMITED | ||||||
Executed under the seal of Enesco International | ||||||
(H.K.) Limited: | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Director/Secretary: Director | ||||||
XXXXX MANUFACTURING, INC. | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: CFO, Treasurer and Secretary | ||||||
ENESCO INTERNATIONAL LTD. | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Treasurer | ||||||
ENESCO HOLDINGS LIMITED | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Secretary | ||||||
ENESCO LIMITED | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Secretary |
[Signature Page to Twelfth Amendment to Credit Agreement ]
-00-
XXXXXXX & XXXXXXXXX ENAMELS PLC |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: Xxxxxxx X. Xxxxxxx | ||||
Title: Director | ||||
[Signature Page to Twelfth Amendment to Credit Agreement ]