Exhibit 10.206
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FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of March 30, 2001, 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 "Lender"), SUNTRUST
BANK, in its capacities as Administrative Agent for the Lenders (the
"Administrative Agent"), as Domestic Issuing Bank (the "Domestic Issuing Bank")
and as Domestic Swingline Lender (the "Domestic Swingline Lender"), and LASALLE
BANK NATIONAL ASSOCIATION, as successor in interest to SunTrust as the UK
Issuing Bank (the "UK Issuing Bank") and as successor in interest to SunTrust as
the UK Swingline Lender (the "UK Swingline Lender").
WITNESSETH
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, SunTrust in its capacity
as UK Swingline Lender and SunTrust in its capacity as UK Issuing Bank entered
into that certain Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of September 22, 2000, (as amended by that certain First Amendment to
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 22, 2000, as further amended by that certain Second Amendment to
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
February 9, 2001, as further amended by that certain Third Agreement to Amended
and Restated Revolving Credit and Term Loan Agreement, dated as of February 9,
2001, as further 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, SunTrust in its capacity
as UK Swingline Lender and SunTrust in its capacity as 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, SunTrust in its capacity as UK Swingline Lender and
SunTrust in its capacity as 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 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 May 31, 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 May 31, 2001 (or in the case of any subsequent Material Foreign
Subsidiary within the later of May 31, 2001 or two months of its
becoming a Material Foreign Subsidiary).
3. Representations and Warranties of Borrowers. Borrowers,
without limiting the representations and warranties provided in the Credit
Agreement, represent and warrant to the Lenders and the Administrative Agent as
follows:
(a) The execution, delivery and performance by Borrowers
of this Amendment are within Borrowers' corporate powers, have been
duly authorized by all necessary corporate action (including any
necessary shareholder action) and do not and
will not (a) violate any provision of any law, rule or regulation, any
judgment, order or ruling of any court or governmental agency, the
articles of incorporation or by-laws of Borrowers or any indenture,
agreement or other instrument to which Borrowers are a party or by
which Borrowers or any of their properties are bound or (b) be in
conflict with, result in a breach of, or constitute with notice or
lapse of time or both a default under any such indenture, agreement or
other instrument.
(b) This Amendment constitutes the legal, valid and
binding obligations of Borrowers, enforceable against Borrowers in
accordance with their respective terms.
(c) No Default or Event of Default has occurred and is
continuing as of the Effective Date.
B. MISCELLANEOUS
1. Except as expressly set forth herein, this Amendment shall be
deemed not to waive or modify any provision of the Credit Agreement 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,
the UK Issuing Bank and the UK Swingline Lender. 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 Forbearance and
Amendatory Agreement 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:
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Name:
Title:
CATALINA INTERNATIONAL PLC,
as a Borrower
By:
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Name:
Title: Director
RING LIMITED (formerly known as
Ring PLC), as a Borrower
By:
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Name:
Title: Director