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EXHIBIT 10(u)
FIRST AMENDMENT TO AMENDED AND RESTATED
SENIOR REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED SENIOR REVOLVING CREDIT
AGREEMENT (the "Amendment") is made as of this 27th day of November, 2000, by
and among ENESCO GROUP, INC., a Massachusetts corporation (the "Borrower"), the
Borrowing Subsidiaries who may from time to time become a party to the Amended
and Restated Senior Revolving Credit Agreement, and FLEET NATIONAL BANK, a
national banking association (the "Bank").
RECITALS
The Borrower and the Bank are parties to a certain Amended and Restated
Senior Revolving Credit Agreement dated as of August 23, 2000 (the "Credit
Agreement") pursuant to which the Bank has extended certain financial
accommodations to the Borrower including those evidenced by a Borrower Note in
the face amount of $50,000,000 dated August 3, 2000. The Borrower has requested
and the Bank has agreed to extend certain additional financial accommodations to
the Borrower including, without limitation, (i) a foreign exchange facility in
the amount of $10,000,000, and (ii) a letter of credit facility in the amount of
$25,000,000, all as more fully described and set forth hereinbelow. Capitalized
terms not otherwise defined in this Amendment 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 Borrower and the Bank agree
that the Credit Agreement is amended as follows:
1. The following definitions are added to ARTICLE I:
"Back-Up F/X Demand Note" means a promissory note, in
substantially the form of Exhibit "A-4" hereto, duly executed
by the Borrower and payable to the order of the Bank in the
amount of the F/X Facility, including any amendment,
modification, renewal or replacement of such promissory note.
"Back-Up L/C Demand Note" means a promissory note, in
substantially the form of Exhibit "A-3" hereto, duly executed
by the Borrower and payable to the order of the Bank in the
amount of the L/C Facility, including any amendment,
modification, renewal or replacement of such promissory note.
"F/X Facility" is defined in Section 2.1.A.
"F/X Facility Limit" means the obligation of the Bank
pursuant to Section 2.1.A to make Advances to be used for the
purchase of foreign currencies up to an
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aggregate amount of all such Advances outstanding at any given
time of $10,000,000.
"L/C Facility" is defined in Section 2.1.B.
"L/C Facility Limit" means the obligation of the Bank
pursuant to Section 2.1.B to issue Letters of Credit up to an
aggregate stated amount of all such Letters of Credit
outstanding at any given time of $25,000,000.
2. The definition of "Advance" which appears in ARTICLE I is
deleted in its entirety and replaced with the following:
"Advance" means a borrowing under Section 2.1
consisting of (i) the aggregate amount of the several Loans of
the same Type and, in the case of LIBOR Advances or Cost of
Funds Advances, for the same Interest Period, made by the Bank
to a Credit Party pursuant to Section 2.3, (ii) reimbursement
obligations arising as a result of Letters of Credit issued
pursuant to Section 2.1.A, or (iii) reimbursement obligations
arising in connection with foreign exchange transactions
pursuant to Section 2.1.B.
3. The definition of "Notes" which appears in ARTICLE I is
deleted in its entirety and replaced with the following:
"Notes" means, collectively, the Borrower Note, the
Borrowing Subsidiary Note, the Back-Up F/X Demand Note and the
Back-Up L/C Demand Note.
4. The following new Section 2.1.A is added:
2.1.A. Foreign Exchange Facility. From and including
the date of this Agreement and prior to the Facility
Termination Date, the Bank agrees, on the terms and conditions
set forth in this Agreement, upon request of the Borrower, to
make Advances in amounts subject to the F/X Facility Limit to
be used for the purchase of such foreign currencies as may be
hereafter agreed to by the Bank pursuant to contracts or other
agreements to purchase such foreign currency from the Bank (as
principal or agent) with settlement dates up to the Facility
Termination Date (the "F/X Facility"), it being understood,
however, that the F/X Facility shall not be used for currency
speculation purposes. In the event that the Bank is required
to advance funds to purchase foreign currency on account of
its obligation as Borrower's principal or agent, the Bank may
charge Borrower's account therefor and such charges shall be
deemed to be Advances. To the extent there is insufficient
availability under the Commitment, the reimbursement
obligations arising in connection with such foreign exchange
transactions shall be evidenced by and subject to the terms of
the Back-Up F/X Note.
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5. The following new Section 2.1.B is added:
2.1.B. Letter of Credit Facility. From and including
the date of this Agreement and prior to the Facility
Termination Date, the Bank agrees, on the terms and conditions
set forth in this Agreement, upon request of the Borrower, to
issue Letters of Credit (in addition to Letters of Credit
provided for in the Commitment) subject to the L/C Facility
Limit with expiration dates of not later than the Facility
Termination Date (the "L/C Facility").
The Letters of Credit shall be issued in accordance
with the Bank's customary practices at the time of issuance,
utilizing documentation prevailing at such times and, if drawn
upon, amounts paid thereon shall be repaid by the Borrower
upon demand, in full reimbursement to the Bank of all such
amounts drawn upon under any Letter of Credit issued pursuant
hereto, and in full payment of any such additional
reimbursement obligations as may be contained in any
documentation executed by the Borrower in conjunction with the
issuance of such Letters of Credit.
To the extent repayment of all amounts reimbursable
to the Bank for drawings against Letters of Credit is not
immediately made, and to the extent there is availability
sufficient under the Commitment, the amount of such drawings
shall be charged as Loans under the Borrower Note. To the
extent there is insufficient availability under the
Commitment, the reimbursement obligations resulting from such
drawings shall be evidenced by and subject to the terms of the
Back-Up L/C Demand Note.
6. Section 2.2 is deleted in its entirety and replaced with the
following:
2.2. Required Payments; Termination. Any outstanding
Advances pursuant to Section 2.1 and all other unpaid
Obligations shall be paid in full by the Credit Party which
incurred such Obligations on the Facility Termination Date.
Any outstanding Advances pursuant to Section 2.1.A or Section
2.1.B shall be payable on demand, and if demand is not sooner
made, on the Facility Termination Date.
7. Section 7.2 is deleted in its entirety and replaced with the
following:
7.2. Nonpayment of principal under any Note when due,
nonpayment of principal under the Back-Up F/X Demand Note or
Back-Up L/C Demand Note upon demand, or nonpayment of interest
upon any Note or of any Facility Fee or other Obligation under
any of the Loan Documents within five days after the same
becomes due.
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8. The following is added as Section 2.19:
2.19. Overadvances. Nothing herein shall be construed
to restrict the Bank, in its sole and exclusive discretion,
from making Advances in excess of the Commitment, the F/X
Facility Limit or the L/C Facility Limit, or Advances in
excess of the face amount of any Note, without requirement of
execution of additional notes, or otherwise modifying this
Agreement or any instrument to accommodate any such Advance in
excess of the face amount of any Note, and in so doing at any
time or times, the Bank shall not waive its rights to insist
upon strict compliance with the terms of this Agreement, the
Notes, or any document or instrument granting security to the
Bank or other instruments executed in connection with this
Agreement, at any other time, and to further rely upon all
collateral secured to it for satisfaction of all Obligations
of the Borrower and/or Borrowing Subsidiaries to the Bank,
without exception.
9. EXHIBIT "A-3" attached hereto is hereby added to the Credit
Agreement as EXHIBIT "A-3" thereof.
10. EXHIBIT "A-4" attached hereto is hereby added to the Credit
Agreement as EXHIBIT "A-4" thereof.
11. 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.
12. 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.
13. 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 under the Credit Agreement.
14. The Borrower hereby confirms and ratifies the obligations
established under the Credit Agreement, as amended hereby.
15. This Amendment is to be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the foregoing has been executed as an instrument
under seal as of the date first above written.
WITNESS: ENESCO GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxxx
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Title: Treasurer
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By: /s/ Xxxxx Xxxxxxxxx
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Print Name: Xxxxx X. Xxxxxxxxx
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Title: CFO
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FLEET NATIONAL BANK
By: /s/ Xxxxxx X. XxXxxxx
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Its Vice President
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