Exhibit 10.2.1
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
September 28, 2006
PEI Holdings, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is hereby made to that certain Amended and Restated Credit
Agreement, dated as of April 1, 2005, among PEI Holdings, Inc., a Delaware
corporation ("Borrower"), the financial institutions from time to time party
thereto (the "Lenders"), and Bank of America, N.A., as Agent for the Lenders
("Agent") (as amended, supplemented or otherwise modified to date, the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used herein
shall have the meanings provided to such terms in the Credit Agreement.
Borrower has requested that Agent and Lenders agree to amend the
Credit Agreement in certain respects, and Agent and Lenders have agreed to such
amendments, on the terms, and subject to the conditions, contained herein.
Therefore, Borrower, Agent and Lenders hereby agree as follows:
1. Amendments to Credit Agreement. Subject to the satisfaction of
the conditions set forth in Section 3 hereof, the Credit Agreement is hereby
amended as follows:
(a) Section 6.10 of the Credit Agreement is hereby amended by
deleting such section and replacing it with the following:
6.10 Additional Guarantors.
Notify Agent at the time that any Person becomes a Wholly-Owned
Restricted Subsidiary of Playboy; and promptly thereafter, cause each such
Person (a) other than a Foreign Subsidiary, to become a Guarantor by
executing and delivering to Agent a Loan Guaranty or Loan Guaranty joinder
in a form reasonably acceptable to Agent, (b) other than a Foreign
Subsidiary, to deliver to Agent documents reasonably necessary to grant to
Agent (and permit Agent to perfect) a Lien on the personal property of
such Person to the extent permitted herein, (c) to cause the appropriate
Person to deliver to Agent a Pledge Agreement granting to Agent a Lien on
the Equity Interests of such Person (excluding China and Gibraltar, unless
otherwise agreed by Agent and
Borrower) and (d) to deliver to Agent documents of the types referred to
in clause (iv) of Section 4.01(a) and favorable opinions of counsel
(including in-house counsel) to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of
the documentation referred to in clauses (a), (b) and (c)), as applicable,
all in form, content and scope reasonably satisfactory to Agent; provided,
that compliance with clauses (b), (c) and (d) of this Section 6.10 shall
not be required with respect to any Person until 60 days after request
therefor by Agent (which request may be made by Agent in its sole
discretion).
(b) the Schedules to the Credit Agreement are hereby supplemented
with the information set forth on the corresponding Schedules attached hereto as
Exhibit A.
2. Scope. Except as amended hereby, the Credit Agreement remains
unchanged and in full force and effect.
3. Effectiveness. This Fifth Amendment to Amended and Restated
Credit Agreement (the "Amendment") shall be effective when executed by Lenders
and Agent and agreed to by Borrower and returned to Agent, together with the
following, all in form and substance reasonably satisfactory to Agent:
(a) a Reaffirmation of Guaranty executed by each Guarantor (other
than the Xxxxx Xxxxxxx Entities);
(b) a Joinder and Amendment No. 1 to Master Corporate Guaranty
executed by each Xxxxx Xxxxxxx Entity, each other Loan Party, Agent and the
Required Lenders;
(c) copies of the organizational documents and a good standing
certificate of each Xxxxx Xxxxxxx Entity, all as certified by the Secretary of
State of Colorado;
(d) a secretary's certificate for each Xxxxx Xxxxxxx Entity,
certifying to (i) the bylaws or operating agreement, as applicable, of such
Xxxxx Xxxxxxx Entity, (ii) the incumbency and signature of each officer of such
Xxxxx Xxxxxxx Entity signing the Guaranty on behalf of such Xxxxx Xxxxxxx Entity
and (iii) the resolutions of the board of directors or similar governing body of
such Xxxxx Xxxxxxx Entity authorizing the execution, delivery and performance of
the Guaranty to which such Xxxxx Xxxxxxx Entity is a party;
(e) a work fee equal to $3,000, for the accounts of the Lenders in
accordance with their respective Pro Rata Shares.
4. Severability. If any provision of this Amendment or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Amendment and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid, or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
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unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.
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6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT BORROWER,
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
Very truly yours,
BANK OF AMERICA, N.A., as Agent
By_______________________________________
Its______________________________________
BANK OF AMERICA, N.A., as a Lender
By_______________________________________
Its______________________________________
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By_______________________________________
Its______________________________________
ACKNOWLEDGED AND AGREED TO
THIS 28 DAY OF SEPTEMBER, 2006:
PEI HOLDINGS, INC., as Borrower
By Xxxxxx Xxxxxxxx
Its Senior Vice President and Treasurer
