THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIRD
AMENDMENT TO
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT (this “Agreement”) is
entered into and effective on April 14, 2009, and is by and among CPI Corp., a
Delaware corporation (“Company”) and Bank of
America, N.A. (as successor to LaSalle Bank National Association) (“Bank of America”), as
“Administrative
Agent,” and Bank of America and the undersigned Required Lenders, as
“Lenders.”
Recitals:
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A.
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Company,
Administrative Agent, Bank of America and the Lenders are party to that
certain Second Amended and Restated Credit Agreement dated as of June 8,
2007, as amended by the First Amendment to Second Amended and Restated
Credit Agreement dated as of June 8, 2007, and as amended by the Second
Amendment to Second Amended and Restated Credit Agreement dated as of
December 10, 2008 (as amended, the “Credit
Agreement”).
|
|
B.
|
Administrative
Agent, the undersigned Required Lenders and Company have agreed to the
provisions set forth herein on the terms and conditions contained
herein.
|
Agreement
Therefore, in consideration of the
mutual agreements herein and other sufficient consideration, the receipt of
which is hereby acknowledged, Company, Administrative Agent and the undersigned
Required Lenders hereby agree as follows:
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1.
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Definitions.
|
Capitalized
terms used and not otherwise defined herein have the meanings given them in the
Credit Agreement.
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2.
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Effectiveness
of Agreement.
|
This
Agreement shall become effective as of the date set forth in the introductory
paragraph to this Agreement, but only if on or before 1:00 p.m. Central time on
the date first written above (A) this Agreement has been executed and delivered
by the Company, Administrative Agent and the undersigned Required Lenders (as
evidenced by receipt by the Administrative Agent of executed signature pages to
this Amendment from Lenders constituting the Required Lenders); (B) all of the
documents listed on Exhibit A to this
Agreement have been executed and delivered, each in form and substance
reasonably satisfactory to Administrative Agent and the undersigned Required
Lenders; (C) the Company has paid in same day funds all fees that may be owing
to Administrative Agent pursuant to any agent fee letter or other arrangement;
(D) the Company has paid to Administrative Agent’s counsel, all reasonable fees
and expenses incurred by such counsel prior to the date hereof and as may be
reasonably estimated to be incurred following the date hereof in connection with
this Agreement, in each case as invoiced to the Company in reasonable detail;
and (E) the Company has paid in same day funds the Third Amendment Fees (as
defined below). If the Required Lenders execute this Agreement, as a
condition to the effectiveness of this Agreement, the Company shall pay to
Administrative Agent, on behalf of each Lender who executes this Agreement and
delivers its signature page to the Administrative Agent on or before 1:00 p.m.
Central time on the date first written above, an amendment fee equal to thirty
seven and one half (37.5) basis points multiplied by each such Lender’s total
Commitment (with respect to any such Lender, the “Third Amendment Fee,”
and with respect to all such Lenders, collectively, the “Third Amendment
Fees”). The Company hereby irrevocably authorizes, requests
and directs Administrative Agent to debit its operating account at
Administrative Agent to pay the Third Amendment Fees if not otherwise paid
directly by the Company when due. Upon receipt of the Third Amendment
Fees, the Administrative Agent shall distribute such fees to each Lender who has
earned a Third Amendment Fee pursuant to this Section 2. Each Third Amendment Fee shall be deemed
to be fully-earned when due and payable, and shall be nonrefundable under any
circumstances once paid.
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3.
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Amendment
to Credit Agreement.
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3.1. Applicable
Margin.
The
definition of “Applicable Margin” in Section 1.1 of the Credit Agreement is
deleted and replaced with the following:
“Applicable Margin
means:
(A) for
any day, the rate per annum set forth below opposite the level (the “Level”) then in
effect, it being understood that the Applicable Margin for (i) LIBOR Loans
that are Revolving Loans shall be the percentage set forth under the column
“LIBOR Margin Revolving Loans”, (ii) Base Rate Loans that are Revolving
Loans shall be the percentage set forth under the column “Base Rate Margin
Revolving Loans”, (iii) the Non-Use Fee Rate shall be the percentage set
forth under the column “Non-Use Fee Rate” and (iv) the L/C Fee shall be the
percentage set forth under the column “L/C Fee Rate”:
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Level
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Ratio
of Total Funded Debt
to
EBITDA Ratio
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LIBOR
Margin
Revolving Loans
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Base
Rate
Margin
Revolving Loans
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Non-Use
Fee Rate
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L/C
Fee
Rate
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|||||||||||||
| I |
Greater
than or equal to 2.00 to 1.00
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4.000 | % | 2.500 | % | 0.500 | % | 4.000 | % | |||||||||
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II
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Greater
than or equal to 1.50 to 1.00 but less than 2.00 to 1.00
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3.750 | % | 2.250 | % | 0.500 | % | 3.750 | % | |||||||||
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III
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Greater
than or equal to 1.00 to 1.00 but less than 1.50 to 1.00
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3.500 | % | 2.000 | % | 0.500 | % | 3.500 | % | |||||||||
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IV
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Less
than 1.00 to 1.00
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3.250 | % | 1.750 | % | 0.500 | % | 3.250 | % | |||||||||
The LIBOR
Margin Revolving Loans, the Base Rate Margin Revolving Loans, the Non-Use Fee
Rate and the L/C Fee Rate shall be adjusted, to the extent applicable, on the
fifth (5th) Business Day after the Company provides or is required to provide
the annual and quarterly financial statements and other information pursuant to
Section 10.1.1
or 10.1.2, as
applicable, and the related Compliance Certificate, pursuant to Section 10.1.3. Notwithstanding
anything contained in this paragraph to the contrary, (a) if the Company
fails to deliver such financial statements and Compliance Certificate in
accordance with the provisions of Section 10.1.1,
10.1.2 and
10.1.3, the
LIBOR Margin Revolving Loans, the Base Rate Margin Revolving Loans, the Non-Use
Fee Rate and the L/C Fee Rate shall be based upon Level I above beginning
on the date such financial statements and Compliance Certificate were required
to be delivered until the fifth (5th) Business Day after such financial
statements and Compliance Certificate are actually delivered, whereupon the
Applicable Margin shall be determined by the then current Level; (b) no
reduction to any Applicable Margin shall become effective at any time when an
Event of Default or Unmatured Event of Default has occurred and is continuing;
and (c) the Applicable Margin shall be based on Level I until the date on which
the financial statements and Compliance Certificate are required to be delivered
for the Fiscal Quarter ending May 2, 2009.
2
(B) for
any day, the rate per annum set forth below opposite the Level then in effect,
it being understood that the Applicable Margin for LIBOR Loans that are
Term B Loans shall be the percentage set forth under the column “LIBOR
Margin Term B Loans”, and Base Rate Loans that are Term B Loans shall
be the percentage set forth under the column “Base Rate Margin Term B
Loans”. The LIBOR Rate Margin for Term B Loans and the Base Rate
Margin for Term B Loans shall be at Level I, provided, however, that if the
Company provides annual and quarterly financial statements and other information
pursuant to Section 10.1.1
or 10.1.2, as
applicable, and the related Compliance Certificate, pursuant to Section 10.1.3
showing for two consecutive Computation Periods that the ratio of Total Funded
Debt to EBITDA is less than 1.00 to 1.00, then at all times thereafter, subject
to the terms and conditions of this Agreement, including, without limitation,
the provisions relating to the Default Rate, the LIBOR Rate Margin for Term B
Loans and the Base Rate Margin for Term B Loans shall be at Level
II. Notwithstanding anything contained in this paragraph to the
contrary, no reduction to LIBOR Rate Margin for Term B Loans and the Base Rate
Margin for Term B Loans shall become effective at any time when an Event of
Default has occurred and is continuing.
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Level
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Ratio
of Total Funded Debt to EBITDA
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LIBOR
Rate Margin Term B Loans
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Base
Rate Margin Term B
Loans
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|||||||
| I |
Greater
than or equal to 1.00 to 1.00
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4.250 | % | 2.750 | % | |||||
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II
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Less
than 1.00 to 1.00 for two consecutive Computation Periods
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3.750 | % | 2.250 | % | |||||
3.2. Base
Rate.
The
definition of “Base Rate” in Section 1.1 of the Credit Agreement is deleted and
replaced with the following:
“Base Rate means for
any day a fluctuating rate per annum equal to the highest of (i) the Federal
Funds Rate plus 1/2 of 1%, (ii) the Prime Rate, or (iii) the sum of 1.00% plus
the LIBOR Rate (without giving effect to any rounding provided for in the
definition of “LIBOR Rate”) that would be applicable for an Interest Period of
one month beginning on such day (or if such day is not a Business Day, the
immediately preceding Business Day).”
3.3. Fixed
Charges.
A
definition of “Fixed Charges” is added to Section 1.1 of the Credit Agreement in
alphabetical order as follows:
“Fixed Charges means,
with respect to any period of computation, the sum of (without duplication), (i)
cash Interest Expense of the Loan Parties during such period, plus (ii) scheduled
repayments of principal of all long-term Debt of any of the Loan Parties or any
of their Subsidiaries (including the Term B Loan, the Subordinated Debt, and
other interest-bearing Debt (other than the Revolving Loan)) made during such
period, plus (iii)
income taxes paid in cash by the Loan Parties and their Subsidiaries during such
period, plus (iv)
distributions and dividends paid or made by the Company in cash with respect to
the Company’s Capital Securities during such period, and plus (v) redemptions and
purchases by the Company of the Company’s Capital Securities made during such
period.”
3
3.4. Prime
Rate.
The
definition of “Prime Rate” in Section 1.1 of the Credit Agreement is deleted and
replaced with the following:
“Prime Rate means, for
any day, the rate of interest in effect for such day as publicly announced from
time to time by the Administrative Agent as its prime rate (whether or not such
rate is actually charged by the Administrative Agent), which is not intended to
be the Administrative Agent’s lowest or most favorable rate of interest at any
one time, and is a rate set by Administrative Agent based upon various factors,
including Administrative Agent’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced
rate. Any change in the Prime Rate announced by the Administrative
Agent shall take effect at the opening of business on the day specified in the
public announcement of such change; provided that the Administrative Agent shall
not be obligated to give notice of any change in the Prime Rate.”
3.5. Repayment
of Term B Loans.
For all
periods after the date of this Agreement, Section 6.4.2 of the Credit Agreement
is deleted and replaced with the following:
“6.4.2 Term B
Loans. The Term B Loan of each Lender with a Term B
Loan Commitment shall be paid in installments equal to such Lender’s Applicable
Percentage of the aggregate principal amount of the installments of the
Term B Loan as follows:
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Payment Date
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Amount
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|||
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on
each March 31, June 30, and September 30
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$ | 1,000,000.00 | ||
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on
each December 31
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$ | 7,000,000.00 | ||
Unless
sooner paid in full, the outstanding principal balance of the Term B Loan shall
be paid in full on the Term B Loan Maturity Date.”
3.6. Total
Funded Debt to EBITDA Ratio.
For all
reporting periods after the date of this Agreement, Section 11.16.1 of the
Credit Agreement is deleted and replaced with the following:
“11.16.1 Total Funded Debt to EBITDA
Ratio. Not permit, as of the last day of any Fiscal Quarter,
the ratio of Total Funded Debt to EBITDA for the Computation Period ended on the
last day of such Fiscal Quarter, to exceed the applicable ratio set forth
below:
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Computation
Period Ending
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Ratio
of Total Funded Debt to EBITDA
|
|
May
2, 2009, and July 25, 2009
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3.00
to 1.00
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November
14, 2009
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3.50
to 1.00
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February
6, 2010
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3.00
to 1.00
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|
May
1, 2010, July 24, 2010, and November 13, 2010
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2.75
to 1.00
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February
5, 2011, April 30, 2011, July 23, 2011, and November 12,
2011
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2.25
to 1.00
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February
4, 2012, and April 28, 2012
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2.00
to 1.00
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4
3.7. Elimination
of Minimum EBITDA Covenant; Addition of Fixed Charge Covenant.
For all
reporting periods after the date of this Agreement, Section 11.16.2 of the
Credit Agreement is deleted and replaced with the following:
“11.16.1 Minimum EBITDA minus Capital
Expenditures to Fixed Charges Ratio. Not permit, as of the
last day of any Fiscal Quarter, the ratio of (I) the result of (a) EBITDA minus (b) Capital
Expenditures to (II) Fixed Charges, for the Computation Period ended on the last
day of such Fiscal Quarter, to be less than 1.50 to 1.00, provided, however, the
foregoing ratio shall be 1.40 to 1.00 for the Fiscal Quarter ending February 2,
2010, and provided further, however, for each the first three Fiscal Quarters of
Fiscal Year 2009, the amount of Capital Expenditures shall be deemed to be an
amount equal to $5,000,000, and thereafter the amount of Capital Expenditures
shall be the actual amount thereof for such Computation Period.”
3.8. Elimination
of Interest Coverage Ratio Covenant.
For all
reporting periods after the date of this Agreement, Section 11.16.3 of the
Credit Agreement is deleted and replaced with the following:
“11.16.3. Intentionally
Omitted.”
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4.
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Representations
and Warranties of
Company.
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Company
hereby represents and warrants to Administrative Agent and the Lenders as of the
date hereof that (i) Company’s execution of this Agreement has been duly
authorized by all requisite action of Company, (ii) no consents are necessary
from any third parties for Company’s execution, delivery or performance of this
Agreement, (iii) this Agreement, the Credit Agreement, and each of the other
Loan Documents, constitute the legal, valid and binding obligations of Company
enforceable against Company in accordance with their terms, except to the extent
that the enforceability thereof against Company may be limited by bankruptcy,
insolvency or other laws affecting the enforceability of creditors rights
generally or by equity principles of general application, (iv) except as
set forth on Exhibit
B to this Agreement, all of the representations and warranties contained
in Section 9 of the Credit Agreement are true and correct with the same force
and effect as if made on and as of the date of this Agreement except to the
extent such representations and warranties expressly by their terms relate only
to an earlier date, (v) after giving effect to this Agreement, there is no
Unmatured Event of Default or Event of Default, and (vi)
since February 2, 2008, there has been no event or occurrence that
would reasonably be likely to give rise to a Material Adverse
Effect. Company hereby further represents and warrants that it has
disclosed to Administrative Agent and the Lenders all material facts and
circumstances relating to the Loan Parties’ business, assets, liabilities,
properties, condition (financial or otherwise), results of operations or
prospects of the Loan Parties and their customers.
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5.
|
Effect
of Amendment.
|
The
execution, delivery and effectiveness of this Agreement shall not operate as a
waiver of any right, power or remedy of Administrative Agent or any Lender under
the Credit Agreement or any of the other Loan Documents, nor constitute a waiver
of any provision of the Credit Agreement, any of the other Loan Documents or any
existing Unmatured Event of Default or Event of Default. Each
reference in the Credit Agreement to “the Agreement”, “hereunder”, “hereof”,
“herein”, or words of like import, shall be read as referring to the Credit
Agreement as amended by this Agreement.
5
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6.
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Reaffirmation;
Waiver of Claims.
|
Company
hereby acknowledges and confirms that as of the date hereof, (i) the Credit
Agreement and the other Loan Documents remain in full force and effect, and (ii)
Company has no defenses to its obligations under the Credit Agreement and the
other Loan Documents. As of the date
hereof, the Company has no claim against Administrative Agent or any Lender
arising from or in connection with the Credit Agreement, this Agreement, or the
other Loan Documents and any and all such claims are waived, released and
discharged (the foregoing is not intended to waive any manifest errors in the
Administrative Agent’s or any Lender’s records with respect to the
Obligations).
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7.
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Governing
Law.
|
This
Agreement has been executed and delivered in Chicago, Illinois, and shall be
governed by and construed under the laws of the State of Illinois without giving
effect to choice or conflicts of law principles thereunder.
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8.
|
Section
Titles.
|
The
section titles in this Agreement are for convenience of reference only and
shall not be construed so as to modify any provisions of this
Agreement.
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9.
|
Counterparts;
Facsimile
Transmissions.
|
This
Agreement may be executed in one or more counterparts and on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to
this Agreement may be given by facsimile or other electronic transmission, and
such signatures shall be fully binding on the party sending the
same.
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10.
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Patriot
Act Notice.
|
Administrative
Agent, each Lender and Bank of America (for itself and not on behalf of any
other party) hereby notifies each Company, each Guarantor, each other Loan Party
and each of their Subsidiaries that, pursuant to the requirements of the USA
Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (the
“Act”), it is
required to obtain, verify and record information that identifies each Company,
each Guarantor, each other Loan Party and each of their Subsidiaries, which
information includes the name and address of the Company, each Guarantor, each
other Loan Party and each of their Subsidiaries and other information that will
allow Administrative Agent, such Lender or Bank of America, as applicable, to
identify the Company, each Guarantor, each other Loan Party and each of their
Subsidiaries in accordance with the Act.
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11.
|
Fees
and Expenses.
|
Company
shall promptly pay to Administrative Agent executing this Agreement all fees,
expenses and other amounts owing to Administrative Agent under the Credit
Agreement and the other Loan Documents upon demand, including, without
limitation, all reasonable fees, costs and expenses incurred by Administrative
Agent in connection with the preparation, negotiation, execution, and delivery
of this Agreement.
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12.
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Incorporation
By Reference.
|
Administrative
Agent, Lenders and Company hereby agree that all of the terms of the Loan
Documents are incorporated in and made a part of this Agreement by this
reference. Administrative Agent, Lenders and Company hereby agree
that this Agreement is a “Loan Document.”
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13.
|
Statutory
Notice - Insurance.
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6
The
following notice is given pursuant to Section 10 of the Collateral Protection
Act set forth in Chapter 815 Section 180/1 of the Illinois Compiled Statutes
(1996); nothing contained in such notice shall be deemed to limit or modify the
terms of the Loan Documents:
UNLESS
YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH
US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR
COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR INTERESTS. THE
COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT
IS MADE AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY
INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE
OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR
THE COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE,
INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE
ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON
YOUR OWN.
|
14.
|
Statutory
Notice - Oral
Commitments.
|
Nothing
contained in the following notice shall be deemed to limit or modify the terms
of the Loan Documents:
ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
Company
acknowledges that there are no other agreements between Administrative Agent,
Lenders, and Company, oral or written, concerning the subject matter of the Loan
Documents, and that all prior agreements concerning the same subject matter,
including any proposal or commitment letter, are merged into the Loan Documents
and thereby extinguished.
{remainder
of page intentionally left blank; signature pages follow}
7
IN WITNESS WHEREOF, this Agreement has
been duly executed as of the date first above written.
CPI CORP., a Delaware
corporation
By:
/s/Xxxx X. Xxxxx
____________________________________________________________________
Name:
Xxxx X. Xxxxx
Title:
Senior Vice President, Finance, Chief
Financial Officer
BANK
OF AMERICA, N.A. (as successor to LaSalle Bank National
Association),
as
Administrative Agent
By:
/s/Xxxxxxxx X. Xxxxxxx
_____________________________________________________________________
Name: Xxxxxxxx
X.
Xxxxxxx
Title: Vice
President
BANK
OF AMERICA, N.A.
(as
successor to LaSalle Bank National Association), as a Lender and as Issuing
Lender
By:
/s/Xxxxxxx X. Xxxxxxx
_____________________________________________________________________
Name:
Xxxxxxxx X. Xxxxxxx
Title:
Vice President
First
Bank, as a Lender
By:
/s/Xxxxxx X. Xxxxxx
_____________________________________________________________________
Name: Xxxxxx
X.
Xxxxxx
Title: Assistant
Vice
President
Fifth
Third Bank, as a Lender
By:
/s/Xxxx X. Xxx
_____________________________________________________________________
Name: Xxxx
X.
Xxx
Title: Officer
Associated Bank,
N.A., as a Lender
By:
/s/Xxxx Xxxxxxxxx
_____________________________________________________________________
Name: Xxxx
Xxxxxxxxx
Title: Vice
President
The
CIT Group/Equipment Financing, Inc., as a Lender
By:
/s/Xxxxxx Xxxxxxxxx
_____________________________________________________________________
Name: Xxxxxx
Xxxxxxxxx
Title: Managing Director
CIFC
Funding 2007-IV, Ltd., as a Lender
By:
/s/Xxxxx Vaclaro
_____________________________________________________________________
Name: Xxxxx
Vaclaro
Title: Co-Chief
Investment Officer
Signature page
to Third Amendment to Second Amended and Restated Credit Agreement
Landmark
VII CDO Ltd., By: Aladdin Capital Management, LLC, as Manager, as a
Lender
By:
/s/Xxxx X. X'Xxxxxx
_____________________________________________________________________
Name: Xxxx X.
X'Xxxxxx
Title: Authorized
Signatory
Landmark
VIII CDO Ltd., By: Aladdin Capital Management, LLC, as Manager, as a
Lender
By:
/s/Xxxx X. X'Xxxxxx
_____________________________________________________________________
Name: Xxxx .
D'Angelo
Title: Authorized
Signatory
Landmark
IX CLO Ltd., By: Aladdin Capital Management, LLC, as Manager, as a
Lender
By:
/s/Xxxx X. X'Xxxxxx
_____________________________________________________________________
Name: Xxxx
X.
X'Xxxxxx
Title: Authorized
Signatory
Greycock
CDO Ltd., By: Aladdin Capital Management, LLC, as Manager, as a
Lender
By:
/s/Xxxx X. X'Xxxxxx
_____________________________________________________________________
Name: Xxxx
X.
X'Xxxxxx
Title: Authorized
Signatory
Banc
of America Capital Solutions LLC, as a Lender
By:
/s/Xxxxxxx X. Xxxxxxx
_____________________________________________________________________
Name: Xxxxxxx
X.
Xxxxxxx
Title: Managing
Director
Pangaea
CLO 2007-1 LTD, By: Pangaea Asset Management, LLC, its Collateral
Manager,
as a Lender
By:
/s/Xxxxxxx Xxxx
_____________________________________________________________________
Name: Xxxxxxx
Xxxx
Title: Assistant
Secretary
Sargas
CLO I Ltd., By: Sargas Asset Management, LLC, its Portfolio Manager,
as
a Lender
By:
/s/Xxxxxxx Xxxx
_____________________________________________________________________
Name: Xxxxxxx
Xxxx
Title: Assistant
Secretary
TELOS
CLO 2006-1, LTD, By: Tricadia Loan Management, LLC, as a Lender
By:
/s/Xxxx X. XxXxxxxxx III
_____________________________________________________________________
Name: Xxxx
X. XxXxxxxxx,
III
Title: Managing Director
TELOS
CLO 2007-2, LTD, By: Tricadia Loan Management, LLC, as a Lender
By:
/s/Xxxx X. XxXxxxxxx, III
_____________________________________________________________________
Name: Xxxx
X. XxXxxxxxx,
III
Title: Managing
Director
Signature page
to Third Amendment to Second Amended and Restated Credit
Agreement
EXHIBIT
A
DOCUMENTS
AND REQUIREMENTS
|
1.
|
Third
Amendment to Second Amended and Restated Credit
Agreement.
|
|
2.
|
Unconditional
Reaffirmation of Guaranty and Amendment of
Guarantors.
|
|
3.
|
Resolutions
of the Company, certified by the corporate secretary or an assistant
secretary of the Company, authorizing the Third Amendment to Second
Amended and Restated Credit
Agreement.
|
1
EXHIBIT
B
UPDATES
TO DISCLOSURE SCHEDULE
NONE
1
UNCONDITIONAL REAFFIRMATION
OF GUARANTY
Each of the
undersigned has reviewed the Third Amendment to Second Amended and Restated
Credit Agreement, by and among CPI Corp., a Delaware corporation (Company) and Bank of America,
N.A. (as successor to LaSalle Bank National Association) (Bank of America), as Administrative Agent, and
Bank of America and the other lenders, as Lenders (the Third Amendment), and all
other documents and financial statements the undersigned deems necessary
relating to the Borrower. Capitalized terms used herein, but not
defined herein, unless otherwise noted, shall have the meanings set forth in the
Third Amendment or, if not defined therein, as defined in that certain Guaranty
and Collateral Agreement dated as of November 30, 2005, to which the
undersigned, the Company and the Administrative Agent are a party (the Guaranty and Collateral
Agreement).
Each of the
undersigned acknowledges and consents to all changes set forth in the Third
Amendment, and agrees that all such changes are in the best interests of Company
and each of the undersigned. In consideration of financial
accommodations granted and which may hereafter be granted to Company by
Administrative Agent and the Lenders, in consideration of Administrative Agent’s
and the Lenders’ reliance on the Guaranty and Collateral Agreement and in
reliance on the Guaranty Agreement dated April 15, 2005 (the April Guaranty), and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each of the undersigned irrevocably and unconditionally
reaffirms pursuant to the terms of the Guaranty and Collateral Agreement and
pursuant to the terms of the April Guaranty, each of which it is a party to, its
unconditional continuing guarantee of the payment and performance of all Company
Obligations, and the undersigned further agrees that the validity and
enforceability of the Guaranty and Collateral Agreement and the April Guaranty
to which it is a party is not and shall not be affected in any way or manner by
the Third Amendment.
Each Guarantor hereby
unconditionally reaffirms, covenants, represents, warrants, acknowledges and
confirms to Administrative Agent, the Issuing Lender and each Lender that (i)
the Guaranty and Collateral Agreement, the April Guaranty, and each other Loan
Document to which it is a party is in full force and effect, (ii) this
Reaffirmation has been duly authorized by such Guarantor’s governing body,
members or shareholders, as the case may be, (iii) no consents are necessary
from any third Person for such Guarantor’s execution, delivery or performance of
this Reaffirmation which have not been obtained, (iv) this Reaffirmation, the
Guaranty and Collateral Agreement, the April Guaranty, and each other Loan
Documents to which it is a party constitutes the legal, valid and binding
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms except as the enforcement thereof may be limited by bankruptcy,
insolvency or other laws related to creditors rights generally or by the
application of equity principles, (v) the Guaranty and Collateral Agreement, the
April Guaranty, and each other Loan Documents to which it is a party are each
hereby reaffirmed and ratified without qualification and are and remain in full
force and effect, except that on and after the date hereof all references in the
Guaranty and Collateral Agreement, and the April Guaranty to which it is a party
to “the Loan Agreement” or “the Credit Agreement,” or words of like import
referring to the Credit Agreement shall mean the Credit Agreement as amended by
the Third Amendment, (vi) the Liens granted by such Guarantor and each other
Guarantor in favor of the Administrative Agent under the Guaranty and Collateral
Agreement, the Collateral Documents, and the other Loan Documents secure all the
Obligations and all the Guarantor Obligations, are perfected, continue in full
force and effect, and are hereby reaffirmed, and such Guarantor reaffirms and
grants a Lien in favor of Administrative Agent on all of its Collateral, and
each Guarantor and confirms and agrees that to the extent that any such Loan
Document purports to grant, assign or pledge to the Administrative Agent a
security interest in or Lien on, any Collateral as security for the Obligations
and the Guarantor Obligations and that such pledge, assignment and/or grant of
the security interest or Lien is hereby ratified and confirmed in all respects,
and (vii) each of the representations and warranties made by the Guarantors
under the Guaranty and Collateral Agreement, the April Guaranty, each Existing
Loan Document, and the other Loan Documents to which it is a party are true and
correct as of the date hereof (except to the extent modified herein by updates
to the disclosure schedules or in the Credit Agreement).
1
Each Guarantor hereby unconditionally
reaffirms, covenants, represents, warrants, acknowledges and confirms to
Administrative Agent, the Issuing Lender and each Lender that (i) such Guarantor
has no defenses to its obligations under the Credit Agreement, the Guaranty and
Collateral Agreement, the April Guaranty, and each other Loan Documents to which
it is a party arising out of or relating to any facts or circumstances existing
on or before the date hereof, known or unknown, to the Guarantor, the Company or
any Loan Party, and (ii) as of the date hereof, the Guarantor has no claim
against Administrative Agent, any Existing Lender, the Issuing Lender or any
Lender arising from or in connection with the Credit Agreement, the Guaranty and
Collateral Agreement, the April Guaranty, and each other Loan Documents to which
it is a party and any and all such claims are waived, released and discharged
(the foregoing is not intended to waive any manifest errors in the
Administrative Agent’s or any Lender’s records with respect to the
Obligations).
{remainder
of page intentionally left blank; signature page follows
2
Each Guarantor has caused this
Unconditional Reaffirmation to be duly executed and delivered by their duly
authorized officers as of the date first set forth above.
Dated and
effective as of April 14, 2009.
CONSUMER PROGRAMS
INCORPORATED, a Missouri corporation, as a Guarantor
By: /s/Xxxx
Xxxxx
_________________________________________________________________
Name:
Xxxx Xxxxx
Title: SVP
Finance/CFO/Treasurer
CPI CANADIAN HOLDINGS, INC., a
Delaware corporation, as a Guarantor
By: /s/Xxxx
Xxxxx
_________________________________________________________________
Name:
Xxxx Xxxxx
Title: SVP
Finance/CFO/Treasurer
CPI IMAGES, L.L.C., a Missouri
limited liability company, as a Guarantor
By: Consumer
Programs Incorporated, a Missouri corporation, as its Manager
By: /s/Xxxx
Xxxxx
________________________________________________________________
Name:
Xxxx Xxxxx
Title: SVP
Finance/CFO/Treasurer
CPI INTERNATIONAL HOLDINGS,
INC., a Delaware corporation, as a Guarantor
By: /s/Xxxx
Xxxxx
________________________________________________________________
Name:
Xxxx Xxxxx
Title: SVP
Finance/CFO/Treasurer
TEXAS PORTRAITS, L.P., a
Delaware limited partnership
By: Consumer
Programs Incorporated, a Missouri corporation
By: /s/Xxxx
Xxxxx
_______________________________________________________________
Name:
Xxxx Xxxxx
Title: SVP
Finance/CFO/Treasurer
3
Agreed
and accepted as of April 14, 2009:
BANK
OF AMERICA, N.A.
(as
successor to LaSalle Bank National Association),
as
Administrative Agent
By: /s/Xxxxxxxx
X. Xxxxxxx
_________________________________________
Name: Xxxxxxxx
X. Direkes
Title: Vice
President
{end
of signatures}
4
