EXHIBIT 10.202
FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (this "Amendment") is entered into as of December 22, 2000, by
and among CATALINA LIGHTING, INC., a Florida corporation ("Domestic Borrower"),
CATALINA INTERNATIONAL PLC, a limited company organized under the laws of
England and Wales (Registered in England No. 03949382) ("Holdings Borrower"),
and RING LIMITED (formerly known as Ring PLC), a limited company organized under
the laws of England and Wales (Registered in England No. 29796) ("Sterling
Borrower"; Domestic Borrower, Holdings Borrower and Sterling Borrower are
collectively referred to herein as the "Borrowers" and individually as a
"Borrower"), SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), and the
other banks and lending institutions that are signatories to this Amendment
(SunTrust and such other banks and lending institutions, collectively, the
"Lenders"), SUNTRUST BANK, in its capacities as Administrative Agent for the
Lenders (the "Administrative Agent"), as Domestic Issuing Bank (the "Domestic
Issuing Bank"), as Domestic Swingline Lender (the "Domestic Swingline Lender"),
as UK Swingline Lender ("UK Swingline Lender") and as UK Issuing Bank ("UK
Issuing Bank").
W I T N E S S E T H
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, the UK Swingline Lender
and the UK Issuing Bank entered into that certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of September 22, 2000, (as amended,
restated, supplemented, or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, the UK Swingline Lender
and the UK Issuing Bank are amending the Credit Agreement so as to make certain
changes in the terms and conditions of the Credit Agreement as are more fully
set forth herein;
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the
Borrowers, the Lenders, the Administrative Agent, the Domestic Swingline Lender,
the Domestic Issuing Bank, the UK Swingline Lender and the UK Issuing Bank
hereby amend the Credit Agreement as follows:
A. AMENDMENT
1. Unless otherwise specifically defined herein, each term used herein
which is defined in the Credit Agreement shall have the meaning assigned to such
term in the Credit Agreement. Each reference to "hereof", "hereunder", "herein"
and "hereby" and each other similar reference and each reference to "this
Agreement" and each other similar reference contained in the Credit Agreement
shall from and after the date hereof refer to the Credit Agreement as amended
hereby.
2. Section 1.01 of the Credit Agreement is hereby amended by deleting
the definitions of "Sterling L/Cs," "Sterling L/C Exposure," "Sterling L/C
Obligations," and "Sterling L/C Subcommitment," and adding the definitions of
"Foreign Currency L/Cs," "Foreign Currency L/C Subcommitment," "Freely Available
Foreign Currencies," and "Sale Leaseback Transaction," in the appropriate
alphabetical order:
"Foreign Currency L/Cs" shall mean, collectively, the letters
of credit issued in Freely Available Foreign Currencies pursuant to
Section 2.04 hereof by the UK Issuing Bank for the account of the
Sterling Borrower pursuant to the Foreign Currency L/C Subcommitment,
and "Foreign Currency L/C" shall mean any one of them.
"Foreign Currency L/C Exposure" shall mean, with respect to
each Sterling Revolving Lender, the aggregate outstanding amount of all
Foreign Currency L/C Obligations multiplied by such Sterling Revolving
Lender's Pro Rata Share of the Sterling Revolving Credit Commitments.
"Foreign Currency L/C Obligations" shall mean the sum of (a)
the maximum aggregate amount available to be drawn (assuming the
conditions for drawing thereunder have been met) under all outstanding
Foreign Currency L/Cs on the date of determination, plus (b) the
aggregate amount of all drawings under Foreign Currency L/Cs honored by
the UK Issuing Bank but not theretofore reimbursed by the Sterling
Borrower on such date of determination.
"Foreign Currency L/C Subcommitment" shall mean the commitment
of the UK Issuing Bank established pursuant to Section 2.04(b) as a
subfacility of the Sterling Revolving Credit Commitment to issue
Foreign Currency L/Cs for the account of the Sterling Borrower in an
aggregate face amount not to exceed the Sterling Equivalent of
$20,000,000.
"Freely Available Foreign Currencies" shall mean, at any time,
Sterling, Dollars and any other currency, but shall not include Euros,
that is determined by the Administrative Agent and the UK Issuing Bank
to be freely available to financial institutions on foreign exchange
markets in New York and London at such time.
"Sale-Leaseback Transaction" shall mean a financing
transaction whereby
a Borrower or a Subsidiary sells one or more of its assets to a
financial institution and leases back, as lessee such assets.
3. Section 1.01 of the Credit Agreement is hereby amended so that, from
and after the date hereof, the definitions of "Commitment," "Consolidated
Adjusted EBITDA," "Consolidated Capital Expenditures," "Determination Date,"
"L/Cs," "L/C Exposure," "L/C Obligations," and "Sterling Equivalent" set forth
therein shall read as follows:
"Commitment" shall mean, for any Lender, its Revolving Credit
Commitment (including its interest in the Domestic Revolving Credit
Commitment, the Domestic L/C Subcommitment, the Foreign Currency L/C
Subcommitment, the Domestic Swingline Subcommitment, the Sterling
Revolving Credit Commitment and the Sterling Swingline Subcommitment),
its Term A Loan Commitment or its Term B Loan Commitment, as the
context may require, and the term "Commitments" shall mean,
collectively, the Revolving Credit Commitments of all Revolving
Lenders, the Domestic L/C Subcommitment of the Domestic Issuing Bank,
the Foreign Currency L/C Subcommitment of the UK Issuing Bank, the
Domestic Swingline Subcommitment of the Domestic Swingline Lender and
the Sterling Swingline Subcommitment of the UK Swingline Lender, the
Term A Loan Commitments of all Term A Lenders and the Term B Loan
Commitments of all Term B Lenders.
"Consolidated Adjusted EBITDA" shall mean (a) for any period
ending after the last day of the fourth Fiscal Quarter of Fiscal Year
2002, Consolidated EBITDA, and (b) for any period ending on or prior to
the last day of the fourth Fiscal Quarter of Fiscal Year 2002,
Consolidated EBITDA, plus the following (to the extent deducted in
determining Consolidated Net Income for such period and not added back
pursuant to the definition of Consolidated EBITDA):
(i) for the period ending on the last day of the fourth Fiscal
Quarter of Fiscal Year 2000, up to $976,000 for a severance payment to
William C. Stewart;
(ii) for the periods ending on the last day of the fourth
Fiscal Quarter of Fiscal Year 2000, up to $583,000 for losses incurred
in connection with the sale of M&F Components;
(iii) for the periods ending on the last day of Fiscal Quarter
during Fiscal Year 2001 and Fiscal Year 2002, up to $250,000 for
payments under the non compete agreement with William C. Stewart;
(iv) for the period beginning on September 30, 2000 through
June 30, 2001, the Sterling Borrower public company expenses up to an
aggregate annual amount of $500,000;
(v) for the period beginning on September 30, 2000 through
March 31, 2001, legal and investment advisory fees incurred by Ring PLC
with respect to its sale to Catalina up to an aggregate annual amount
of $739,257; and
(vi) for the period beginning on September 30, 2000 through
March 31, 2001, any Pension Expense Associated with sale of the
Engineering Division up to an aggregate annual amount of $578,687.
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate of expenditures of the Consolidated Companies for
the acquisition or leasing pursuant to capital leases of fixed or
capital assets or additions to property, plants and equipment
including, but not limited to, replacements, capitalized repairs and
improvements) which should be capitalized under GAAP consistently
applied. Notwithstanding the foregoing, expenditures attributable to
replacement items shall be included net of any proceeds from the
disposal of the item that was replaced.
"Determination Date" means with respect to the Term A Loan,
which is a Sterling Loan, and any Sterling Revolving Loan, Sterling
Swingline Loan and any Foreign Currency L/C Obligation:
(a) in connection with any new extension of credit, the
Business Day which is the earlier of the date such credit is extended
or the date the rate is set, as applicable;
(b) in connection with the continuation of a Borrowing into a
new Interest Period, the Business Day which is the earlier of the date
such Borrowing is continued or the date the rate is set, as applicable;
or
(c) the date of any reduction of the Revolving Credit
Commitments pursuant to the terms of Article II; and
(d) such additional dates, not more frequently than once a
month, as may be determined by the Administrative Agent.
"L/Cs" shall mean, collectively, the Domestic L/Cs and the
Foreign Currency L/Cs, and "L/C" shall mean any one of them.
"L/C Exposure" shall mean the sum of the Domestic L/C Exposure
plus the Dollar Equivalent of the Foreign Currency L/C Exposure.
"L/C Obligations" shall mean the sum of the Domestic L/C
Obligations plus the Dollar Equivalent of the Foreign Currency L/C
Obligations.
"Sterling Equivalent" shall mean, with respect to any amount
in Dollars or any Freely Available Foreign Currency, as applicable, the
amount in Sterling that could be purchased with such amount of Dollars
or any Freely Available Foreign Currency, as applicable, using the
foreign exchange rate(s) specified in the definition of the term
"Dollar Equivalent", as determined by the Administrative Agent.
4. Section 2.01 of the Credit Agreement is hereby amended so as to read
as follows:
Section 2.01 Revolving Credit Commitments. Subject to and upon
the terms and conditions herein set forth, (x) each Revolving Lender
hereby severally establishes in favor of the Domestic Borrower and the
Sterling Borrower its respective Revolving Credit Commitment pursuant
to which such Revolving Lender agrees to make Domestic Revolving Loans
to the Domestic Borrower within the Domestic Revolving Credit
Commitment in accordance with Section 2.02 for the purposes set forth
in Section 2.13, to make Sterling Revolving Loans to the Sterling
Borrower within the Sterling Revolving Credit Commitment in accordance
with Section 2.03 for the purposes set forth in Section 2.13, to
purchase participation interests in the Domestic L/Cs issued by the
Domestic Issuing Bank for the account of the Domestic Borrower in
accordance with this Article II, to purchase participation interests in
the Foreign Currency L/Cs issued by the UK Issuing Bank for the account
of the Sterling Borrower in accordance with this Article II, to
purchase participation interests in the Domestic Swingline Loans made
to the Domestic Borrower by the Domestic Swingline Lender pursuant to
this Article II, and to purchase participation interests in the
Sterling Swingline Loans made to the Sterling Borrower by the UK
Swingline Lender pursuant to this Article II, (y) the Domestic Issuing
Bank establishes in favor of the Domestic Borrower a letter of credit
subcommitment within the Domestic Revolving Credit Commitment pursuant
to which the Domestic Issuing Bank agrees to issue Domestic L/Cs in
accordance with this Article II, and the UK Issuing Bank establishes in
favor of the Sterling Borrower a letter of credit subcommitment within
the Sterling Revolving Credit Commitment pursuant to which the UK
Issuing Bank agrees to issue Foreign L/Cs in accordance with this
Article II, and (z) the Domestic Swingline Lender establishes in favor
of the Domestic Borrower a swingline subcommitment within the Domestic
Revolving Credit Commitment pursuant to which the Domestic Swingline
Lender agrees to make Domestic Swingline Loans in accordance with this
Article II, and the UK Swingline Lender establishes in favor of the
Sterling Borrower a swingline subcommitment within the Sterling
Revolving Credit Commitment pursuant to which the UK Swingline Lender
agrees to make Sterling Swingline Loans in accordance with this Article
II; provided, however, that in no event may the aggregate principal
amount of all
outstanding Domestic Revolving Loans, the Dollar Equivalent of all
outstanding Sterling Revolving Loans (determined as of the most recent
Determination Date), the aggregate principal amount of all outstanding
Domestic Swingline Loans, the Dollar Equivalent (determined as of the
most recent Determination Date) of all outstanding Sterling Swingline
Loans and the aggregate amount of all L/C Obligations exceed the Total
Revolving Credit Commitment Amount from time to time in effect.
5. Section 2.03(a) of the Credit Agreement is hereby amended so as to
read as follows:
(a) Subject to and upon the terms and conditions herein set
forth (including the limitation set forth in Section 2.01), each
Sterling Revolving Lender severally agrees to make to the Sterling
Borrower, from time to time prior to the Revolving Credit Termination
Date, Sterling Revolving Loans in an aggregate principal amount
outstanding at any time not to exceed an amount equal to:
(A) such Sterling Revolving Lender's Pro Rata Share
of the Sterling Revolving Credit Commitment Amount minus (B) the Dollar
Equivalent (determined as of the most recent Determination Date) of the
Revolving Lender's aggregate outstanding Sterling Revolving Loans,
minus (C) the Dollar Equivalent (determined as of the most recent
Determination Date) of such Sterling Lender's Foreign Currency L/C
Exposure minus (D) the Dollar Equivalent (determined as of the most
recent Determination Date) of such Sterling Revolving Lender's Sterling
Swingline Exposure;
provided, however, that the conditions set forth in Sections
2.01, 6.01 and 6.02 have been fulfilled before and after giving effect
to each Borrowing of Sterling Revolving Loans; and provided further
that at no time may the Dollar Equivalent (determined as of the most
recent Determination Date) of all Sterling Revolving Loans plus the
Dollar Equivalent of all Foreign Currency L/C Obligations plus the
Dollar Equivalent of all Sterling Swingline Loans exceed the Sterling
Revolving Credit Commitment Amount. For the purpose of determining the
unutilized portion of the Sterling Revolving Credit Commitment of each
Sterling Revolving Lender on the date of a requested Borrowing under
the Sterling Revolving Credit Commitment, the Dollar Equivalent of the
Sterling Borrowing then being requested shall be aggregated with the
Dollar Equivalent (as of the most recent Determination Date) of all
other Sterling Revolving Loans, Sterling Swingline Loan, and Foreign
Currency L/C Obligations then outstanding; and provided further that
the aggregate amount of all Sterling Revolving Loans and Foreign
Currency L/C's outstanding, including the amount of any Sterling
Borrowing or L/C then being requested and the amount of all Sterling
Revolving Loans and Sterling Swingline Loan (determined as of the most
recent Determination Date), L/C Obligations, Domestic Revolving Loans
and Domestic Swingline Loans shall not exceed the Borrowing Limit. The
Sterling Borrower shall be entitled to repay and reborrow Sterling
Revolving Loans in accordance with the provisions of this Agreement.
6. Section 2.04(b) of the Credit Agreement is hereby amended so as to
read as follows:
(b) Foreign Currency L/C Subcommitment. Subject to, and upon
the terms and conditions hereof, the Sterling Borrower may request, in
accordance with the provisions of this Section 2.04 and Section 2.05,
that the UK Issuing Bank issue one or more Foreign Currency L/Cs for
the account of the Sterling Borrower; provided that (i) no Foreign
Currency L/C shall have an expiration date that is later than five (5)
Business Days prior to the Revolving Credit Termination Date; (ii) each
Foreign Currency L/C issued by the UK Issuing Bank shall be in a stated
amount of at least the Sterling Equivalent of (pound)13,000, and (iii)
the Sterling Borrower shall not request that the UK Issuing Bank issue
a Foreign Currency L/C if, after giving effect to such issuance, (A)
the aggregate amount of the Dollar Equivalent (as of the relevant
Determination Date) of the Foreign Currency L/C Obligations would
exceed the Foreign Currency L/C Subcommitment, (B) the aggregate amount
of all L/C Obligations, plus the aggregate principal amount of all
outstanding Domestic Revolving Loans, plus the Dollar Equivalent (as of
the relevant Determination Date) of the aggregate outstanding Sterling
Revolving Loans, plus the aggregate outstanding amount of all Domestic
Swingline Loans plus the Dollar Equivalent (as of the relevant
Determination Date) of the aggregate principal amount of all
outstanding Sterling Swingline Loans would exceed the Borrowing Limit,
or (C) the aggregate amount of the Dollar Equivalent of Foreign
Currency L/C Obligations, plus the Dollar Equivalent (as of the
relevant Determination Date) of the aggregate principal amount of all
outstanding Sterling Swingline Loans, plus the Dollar Equivalent (as of
the relevant Determination Date) of the aggregate outstanding Sterling
Revolving Loans, would exceed the Sterling Revolving Credit Commitment
Amount. Upon the issuance of each Foreign Currency L/C, each Sterling
Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the UK Issuing Bank without
recourse a participation in such Foreign Currency L/C equal to such
Sterling Revolving Lender's Pro Rata Share of the aggregate amount
available to be drawn under such Foreign Currency L/C. Each issuance of
a Foreign Currency L/C shall be deemed to utilize the Sterling
Revolving Credit Commitment of each Sterling Revolving Lender by an
amount equal to the amount of such participation.
7. Section 2.05 of the Credit Agreement is hereby amended so as to read
as follows:
Section 2.05 Notice of Issuance of L/C; Agreement to Issue.
(a) Whenever the Domestic Borrower desires the issuance of a
Domestic L/C, the Borrower Representative shall, in addition to any
application
and documentation procedures required by the Domestic Issuing Bank for
the issuance of such L/C, deliver to the Administrative Agent and the
Domestic Issuing Bank, a written notice no later than 11:30 a.m.
(Atlanta, Georgia time) at least three (3) Business Days in advance of
the proposed date of issuance (which amount shall be specified in US
Dollars). Whenever the Sterling Borrower desires the issuance of a
Foreign Currency L/C, the Borrower Representative shall, in addition to
any application and documentation procedures required by the UK Issuing
Bank for the issuance of such Foreign Currency L/C, deliver to the
Administrative Agent and the UK Issuing Bank a written notice no later
than 11:30 a.m. (Atlanta, Georgia time) at least three (3) Business
Days in advance of the proposed date of issuance (which amount shall be
specified in the appropriate Freely Available Foreign Currency). Any UK
Subsidiary of the Sterling Borrower may make an application and deliver
notice to the UK Issuing Bank for issuance of a Foreign Currency L/C,
and such Foreign Currency L/C shall be issued in the name of such UK
Subsidiary. Notwithstanding the fact that such Foreign Currency L/C
shall be issued in the name of such UK Subsidiary, the Sterling
Borrower shall be obligated to indemnify the UK Issuing Bank for such
Foreign Currency L/C in the manner prescribed in Section 2.09 as if
such Foreign Currency L/C was issued in the name of the Sterling
Borrower. Each such notice, whether given by the Sterling Borrower or
any of its UK Subsidiaries shall specify (i) the proposed date of
issuance (which shall be a Business Day); (ii) the face amount of the
L/C (which amount shall be specified in the applicable Freely Available
Foreign Currency); (iii) the expiration date of the L/C; and (iv) the
name and address of the beneficiary with respect to such L/C, and shall
attach a precise description of the documentation and a verbatim text
of any certificate to be presented by the beneficiary of such L/C which
would require the Domestic Issuing Bank or UK Issuing Bank, as the case
may be, to make payment under the L/C, provided that the Domestic
Issuing Bank or UK Issuing Bank, as the case may be, may require
changes in any such documents and certificates in accordance with its
customary letter of credit practices, and provided further, that no L/C
shall require payment against a conforming draft to be made thereunder
on the same Business Day that such draft is presented if such
presentation is made after 11:30 a.m. (Atlanta, Georgia time) in the
case of a Domestic L/C or within two Business Days in the case of a
Foreign Currency L/C. To the extent any application and notice shall be
inconsistent with the terms of this Agreement, then the terms of this
Agreement shall prevail. Absent such inconsistency, the terms of the
application and notice and this Agreement shall remain in full force
and effect. In determining whether to pay under any L/C, the applicable
Issuing Bank shall be responsible only to determine that the documents
and certificate required to be delivered under its L/C have been
delivered, and that they comply on their face with the requirements of
the L/C. Promptly after receiving the notice of issuance of a L/C, the
Administrative Agent shall notify each Domestic Revolving Lender or
Sterling Revolving Lender, as the case may be, of such Revolving
Lender's respective participation therein, determined in accordance
with its respective Pro
Rata Share of the respective Revolving Domestic or Sterling Credit
Commitments on the date of the issuance of such L/C.
(b) The Domestic Issuing Bank agrees, subject to the terms and
conditions set forth in this Agreement, to issue for the account of the
Domestic Borrower one or more Domestic L/Cs, each in a face amount
equal to the face amount requested under Section 2.05(a) above,
following its receipt of a notice and the application and other
documents required by Section 2.05(a). The UK Issuing Bank agrees,
subject to the terms and conditions set forth in this Agreement, to
issue for the account of the Sterling Borrower one or more Foreign
Currency L/Cs, each in a face amount equal to the face amount requested
under Section 2.05(a) above, following its receipt of a notice and the
application and other documents required by Section 2.05(a).
Immediately upon the issuance of each L/C, each Domestic Revolving
Lender or Sterling Revolving Lender shall be deemed to, and hereby
agrees to, have irrevocably purchased from the Domestic Issuing Bank or
the UK Issuing Bank, as the case may be, a participation in such L/C
and any drawing thereunder in an amount equal to such Revolving
Lender's Pro Rata Share of the Domestic Revolving Credit Commitments or
the Sterling Revolving Credit Commitments, as the case may be,
multiplied by the face amount of such L/C.
(c) Each Domestic Revolving Lender hereby purchases a
participation in the Existing Domestic L/Cs and any drawings thereunder
in an amount equal to such Lender's Pro Rata Share of the Domestic
Revolving Credit Commitments multiplied by the face amount of such
Existing Domestic L/Cs.
Each Sterling Revolving Lender hereby purchases a
participation in the Existing Foreign Currency L/Cs and any drawings
thereunder in an amount equal to such Lender's Pro Rata Share of the
Sterling Revolving Credit Commitments multiplied by the face amount of
such Existing Foreign Currency L/Cs.
8. Section 2.06(b) and 2.06(c) of the Credit Agreement are hereby
amended so as to read as follows:
(b) In the event of any request for a drawing under a Foreign
Currency L/C by the beneficiary thereof, the UK Issuing Bank shall
notify the Sterling Borrower, the Administrative Agent and the Sterling
Revolving Lenders on or before the date on which the UK Issuing Bank
intends to honor such drawing, and the Sterling Borrower agrees to
reimburse the UK Issuing Bank on the day on which such drawing is
honored in an amount, in same day funds in the Freely Available Foreign
Currency the L/C is issued under, equal to the amount of such drawing,
provided that anything contained in this Agreement to the contrary
notwithstanding, unless the Sterling Borrower shall have notified the
UK Issuing Bank and the Administrative Agent prior to 11:30 a.m.
(Atlanta, Georgia time) on
the Business Day three (3) Business Days prior to the date on which
such drawing is honored, that the Sterling Borrower intends to
reimburse the UK Issuing Bank for the amount of such drawing with funds
other than the proceeds of Sterling Revolving Loans, the Sterling
Borrower shall be deemed to have timely given a Sterling Revolving
Notice of Borrowing to the Administrative Agent requesting Sterling
Revolving Loans on the date on which such drawing is honored in an
amount equal to the Sterling Equivalent of the amount of such drawing,
and the Sterling Revolving Lenders shall by 1:00 p.m (Atlanta, Georgia
time) on the date of such drawing, make Sterling Revolving Loans in the
Sterling Equivalent of the amount of such drawing, the proceeds of
which shall be applied directly by the Administrative Agent to
reimburse the UK Issuing Bank for the Sterling Equivalent of the amount
of such drawing, provided that for the purposes solely of such Sterling
Revolving Borrowing, the conditions and requirements set forth in
Sections 2.01, 2.03, 6.01 and 6.02 hereof shall not be applicable, and
provided further that if for any reason proceeds of the Sterling
Revolving Loans are not received by the UK Issuing Bank on such date in
the amount equal to the Sterling Equivalent of the amount of such
drawing, the Sterling Borrower shall reimburse the UK Issuing Bank on
the Business Day immediately following the date of such drawing in an
amount, in Sterling and immediately available funds, equal to the
excess of the Sterling Equivalent of the amount of such drawing over
the amount of such Sterling Revolving Loans, if any, which are so
received, plus accrued interest on the amount at the applicable rate of
interest for Sterling Revolving Loans.
(c) Notwithstanding any provision of this Agreement to the
contrary, to the extent that any L/C or portion thereof remains
outstanding on the Revolving Credit Termination Date, the parties
hereby agree that the beneficiary or beneficiaries thereof shall be
deemed to have made a drawing of all available amounts pursuant to such
L/Cs on the Revolving Credit Termination Date, which amounts shall be
reimbursed (i) in the case of a Domestic L/C, to the Domestic Issuing
Bank by the Domestic Borrower directly (and not through a Domestic
Revolving Borrowing under the Domestic Revolving Credit Commitments as
contemplated in Section 2.06(a)), (ii) in the case of a Foreign
Currency L/C, to the UK Issuing Bank by the Sterling Borrower directly
(and not through a Sterling Revolving Borrowing under the Sterling
Revolving Credit Commitments as contemplated in Section 2.06(b)), and
thereafter held by such Issuing Bank as cash collateral for its
remaining obligations pursuant to such L/C in such Issuing Bank's Cash
Collateral Account.
9. Section 2.07 of the Credit Agreement is hereby amended so as to read
as follows:
Section 2.07 Payment by Revolving Lenders. In the event that
the Domestic Borrower or the Sterling Borrower shall fail to reimburse
the Domestic
Issuing Bank or UK Issuing Bank, as applicable, as provided in Section
2.06 by borrowing Domestic Revolving Loans or Sterling Revolving Loans,
as applicable, or otherwise providing an amount equal to the amount of
any drawing honored by such Issuing Bank, such Issuing Bank shall
promptly notify the Administrative Agent who shall promptly notify
respective Domestic or Sterling Revolving Lender of the unreimbursed
amount of such drawing and of such Revolving Lender's Pro Rata Share
thereof. Each respective Domestic or Sterling Revolving Lender shall
make available to the Administrative Agent an amount equal to its
respective participation, in US Dollars in the case of Domestic L/Cs,
and in the appropriate Freely Available Foreign Currency in the case of
Foreign L/Cs, and in immediately available funds, at the Payment Office
of the Administrative Agent not later than 1:00 p.m. (Atlanta, Georgia
time) in the case of participations in Domestic L/Cs on the Business
Day after the date notified by the Administrative Agent, and, in the
case of participations in Foreign Currency L/C's, not later than three
(3) Business Days after the date notified by the Administrative Agent,
and the Administrative Agent shall promptly make such amounts available
to the applicable Issuing Bank. In the event that any such Domestic or
Sterling Revolving Lender fails to make available to the Administrative
Agent the amount of such Domestic or Sterling Revolving Lender's
respective participation in such L/C, such Issuing Bank shall be
entitled to recover such amount on demand from such Domestic or
Sterling Revolving Lender together with interest at the Federal Funds
Rate for the first two Business Days after demand and thereafter at the
Base Rate. Each Issuing Bank shall distribute to the Administrative
Agent all payments received by such Issuing Bank from the Domestic
Borrower and Sterling Borrower in reimbursement of drawings honored by
such Issuing Bank under such L/C when such payments are received. The
Administrative Agent shall promptly distribute to each respective
Domestic or Sterling Revolving Lender (other than the Issuing Banks)
that has paid all amounts payable under this Section with respect to
any L/C, such Revolving Lender's applicable Pro Rata Share of such
payments.
10. Section 5.05(c) and 5.05(d) of the Credit Agreement are hereby
amended so as to read as follows:
(c) The Domestic Borrower and the Sterling Borrower, as the
case may be, agree to pay to the Administrative Agent, for the ratable
benefit of each Revolving Lender based upon its respective Pro Rata
Share of the Domestic and Sterling Revolving Credit Commitments, as the
case may be a letter of credit fee for standby letters of credit (the
"Standby L/C Fee") for the period commencing on the Closing Date to and
including the Revolving Credit Termination Date, equal to the
Applicable
LIBOR Margin then in effect multiplied by the L/C Obligations
consisting of standby letters of credit; provided, however, that if an
Event of Default has occurred and is continuing, the Standby L/C Fee
shall be increased to an amount equal to two percentage points above
the Applicable LIBOR Margin then in effect multiplied by the L/C
Obligations consisting of standby letters of credit. The Standby L/C
Fee shall be payable quarterly in arrears on the last day of each
calendar quarter, commencing on the last day of the calendar quarter in
which the first L/C is issued, and on the Revolving Credit Termination
Date. The Domestic Borrower and the Sterling Borrower, as the case may
be, agree to pay to the Administrative Agent, for the ratable benefit
of each Revolving Lender based upon its respective Pro Rata Share of
the Domestic and Sterling Revolving Credit Commitments, as the case may
be a letter of credit fee for commercial/trade letters of credit (the
"Commercial L/C Fee"), payable at the time of issuance, for the period
commencing on the Closing Date to and including the Revolving Credit
Termination Date, equal to .25% of the face amount on issuance and/or
increases for each 90 day period and 1% per annum of the face amount on
acceptance of a draw under a L/C plus usual and customary bank charges
for the Issuing Bank's account as agreed upon between Issuing Bank and
the Domestic Borrower or the Sterling Borrower; provided, however, that
if an Event of Default has occurred and is continuing, the Commercial
L/C Fee shall be increased to an amount equal to two percentage points
above the fee then in effect. Fees payable for Foreign Currency L/C's
shall be paid in Dollars.
(d) The Domestic Borrower agrees to pay to the Domestic
Issuing Bank for its own account, a facing fee (the "Domestic Facing
Fee") for the period commencing on the Closing Date to and including
the Revolving Credit Termination Date, equal to 0.25% per annum
multiplied by the Domestic L/C Obligations, plus customary issuance and
administration fees. The Sterling Borrower agrees to pay to the UK
Issuing Bank for its own account a facing fee (the "UK Facing Fee"
payable in Dollars; together with the Domestic Facing Fee, the "Facing
Fees") for the period commencing on the Closing Date to and including
the Revolving Credit Termination Date, equal to 0.25% per annum
multiplied by the Foreign Currency L/C Obligations, plus customary
issuance and administration fees. The Facing Fees shall be payable
quarterly in arrears on the last day of each calendar quarter,
commencing on the last day of the calendar quarter in which the first
L/C is issued, and on the Revolving Credit Termination Date.
11. Section 8.07(a) of the Credit Agreement is hereby amended so as to
read as follows:
Annual Financial Statements. As soon as available and in any
event within 120 days after the end of each Fiscal Year, balance sheets
of the Consolidated Companies as at the end of such year, presented on
a consolidated basis, and the related statements of income, retained
earnings and cash flows of the Consolidated Companies for such Fiscal
Year, presented on a consolidated basis, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all in
reasonable detail and accompanied by a report thereon of
Deloitte & Touche LLP or other independent public accountants of
comparable recognized national standing, which such report shall be
unqualified as to going concern and scope of audit, with the exception
of the September 30, 2000 audit, and shall state that such financial
statements present fairly in all material respects the financial
condition as at the end of such Fiscal Year, and the results of
operations and statements of cash flows of the Consolidated Companies
for such Fiscal Year in accordance with GAAP and that the examination
by such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards;
12. Section 8.09(c) of the Credit Agreement is hereby amended so as to
read as follows:
(c) The Borrowers (other than the Sterling Borrower) shall use
all reasonable endeavors to procure that:
(i) the Sterling Borrower delists, converts to a private
limited company, completes the Whitewash Procedure, executes the
Sterling Borrower Guaranty and the UK Security Amendment Agreement as
soon as reasonably and legally practicable and in any event no later
than February 28, 2001; and
(ii) each member of the Sterling Borrower Group (other than
dormant companies) and any other member of the Sterling Borrower Group
which is or becomes a Material Foreign Subsidiary after the date
hereof, delists where necessary, converts to a private company,
completes the Whitewash Procedures and executes a UK Subsidiary
Guaranty Accession Agreement and a UK Security Accession Agreement as
soon as reasonably and legally practicable and in any event no later
than February 28, 2001 (or in the case of any subsequent Material
Foreign Subsidiary within the later of February 28, 2001 or two months
of it becoming a Material Foreign Subsidiary).
13. Section 9.01 of the Credit Agreement is hereby amended as follows:
(d) so long as no Event of Default is occurring and is
continuing, purchase money Indebtedness, Sale-Lease Back Transactions,
and Capital Lease Obligations to the extent secured by a Lien permitted
by Section 9.02(f) and incurred in an amount not to exceed $1,000,000
in any one Fiscal Year after the Closing Date ;
14. Section 9.05 of the Credit Agreement is hereby amended so as to
read as follows:
Section 9.05 Lease Obligations. Create or suffer to exist any
obligations for the payment under operating leases or agreements to
lease
(including all Synthetic Lease Obligations but excluding any
obligations under leases required to be classified as capital leases
under GAAP) having a term of one year or more which would cause the
direct or contingent liabilities of the Consolidated Companies under
such leases or agreements to lease, on a consolidated basis, to exceed
five percent (5%) of the Net Worth of the Consolidated Companies as of
the last day of the most recently ended Fiscal Year; provided, however,
the Borrowers shall be allowed to enter into the Sale-Lease Back
Transaction.
15. Section 11.02 of the Credit Agreement is hereby amended so as to
read as follows:
Section 11.02 Appointment of Issuing Banks. Each Revolving
Lender hereby designates SunTrust as the Domestic Issuing Bank to issue
Domestic L/Cs, hold a Cash Collateral Account and to act as herein
specified. Each Sterling Revolving Lender hereby designates SunTrust as
the UK Issuing Bank to issue Foreign Currency L/Cs, hold a Cash
Collateral Account and to act as herein specified. Each Revolving
Lender hereby irrevocably authorizes, and each holder of any Revolving
Credit Note by the acceptance of a Revolving Credit Note shall be
deemed irrevocably to authorize, each Issuing Bank to take such actions
on its behalf under the provisions of this Agreement, the other Credit
Documents, and all other instruments and agreements referred to herein
or therein, and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required
of each such Issuing Bank by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. Each Issuing Bank
may perform any of its duties hereunder by or through its agents or
employees.
B. MISCELLANEOUS
1. Except as expressly set forth herein, this Amendment shall be deemed
not to waive or modify any provision of the Credit or the other Credit
Documents, and all terms of the Credit Agreement, as amended hereby, shall be
and shall remain in full force and effect and shall constitute a legal, valid,
binding and enforceable obligations of the Borrowers, the Lenders, the
Administrative Agent, the Domestic Swingline Lender, the Domestic Issuing Bank,
and the UK Issuing Bank. All references to the Credit Agreement shall
hereinafter be references to the Credit Agreement as amended by this Amendment.
2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA AND ALL APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA.
3. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
4. This Amendment shall be binding on, and shall inure to the benefit
of, the successors and assigns of the parties hereto.
5. In the event that any part of this Agreement shall be found to be
illegal or in violation of public policy, or for any reason unenforceable at
law, such finding shall not invalidate any other part thereof.
6. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.
7. The parties agree that their signatures by telecopy or facsimile
shall be effective and binding upon them as though executed in ink on paper but
that the parties shall exchange original ink signatures promptly following any
such delivery by telecopy or facsimile.
8. The Borrowers agree to pay all costs and expenses of the
Administrative Agent and the Lenders incurred in connection with the
preparation, execution, delivery and enforcement of this Amendment, including
the reasonable fees and out-of-pocket expenses of Administrative Agent's
counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first above written.
CATALINA LIGHTING, INC.,
as a Borrower
By: /s/ Robert Hersh
---------------------------------
Name: Robert Hersh
Title: CEO
CATALINA INTERNATIONAL PLC,
as a Borrower
By: /s/ Robert Hersh
---------------------------------
Name: Robert Hersh
Title: Director
RING LIMITED (formerly known as
Ring PLC), as a Borrower
By: /s/ Robert Hersh
---------------------------------
Name: Robert Hersh
Title: Director
SUNTRUST BANK,
as Administrative Agent, as Domestic
Issuing Bank, as Domestic Swingline
Lender, UK Swingline Lender, UK Issuing
Bank and as a Lender
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
REPUBLIC BANK
------------------------------
By:
Name:
BANK UNITED FSB
------------------------------
By:
Name:
DRESDNER BANK
LATEINAMERIKA, AG, MIAMI
AGENCY
------------------------------
By:
Name:
HAMILTON BANK
------------------------------
By:
Name:
LASALLE BANK NATIONAL
ASSOCIATION
------------------------------
By:
Name:
UNION PLANTERS BANK, N.A.
------------------------------
By:
Name: