Exhibit 10.155a
EXECUTION VERSION
ACKNOWLEDGMENT OF FIRST AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
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This ACKNOWLEDGMENT OF FIRST AMENDMENT TO NOTE PURCHASE AND PRIVATE SHELF
AGREEMENT (this "Acknowledgment") is dated as of May 1, 2009, by and among
▇▇▇▇▇▇▇ & CO., a Delaware corporation (the "Company") and each of the holders of
Notes (as defined below) on the signature pages hereto (collectively, the
"Noteholders"). Capitalized terms used herein which are not otherwise defined
herein shall have the meanings assigned to such terms in the Note Agreement (as
defined below).
RECITALS
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WHEREAS, the Company and the Noteholders are parties to that certain Note
Purchase and Private Shelf Agreement, dated as of December 23, 2008 (as in
effect prior to March 18, 2009 herein referred to as the "Existing Note
Agreement" and as from time to time amended, restated, supplemented or otherwise
modified, the "Note Agreement"), pursuant to which the Company authorized the
issuance of its (i) 9.05% Series A Senior Notes due December 23, 2015 in the
aggregate principal amount of One Hundred Million Dollars ($100,000,000) (the
"Series A Notes") and (ii) additional senior promissory notes in the aggregate
principal amount of Fifty Million Dollars ($50,000,000) (the "Shelf Notes" and
together with the Series A Notes, collectively, and as may be amended or
restated from time to time, the "Notes").
WHEREAS, the Company and the Noteholders desire to acknowledge and confirm
an amendment to the Existing Note Agreement, as set forth herein.
NOW THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
SECTION 1. Amendments To Existing Note Agreement. The parties hereto acknowledge
and confirm that the Existing Note Agreement, pursuant to the second sentence of
Section 10.7(a) thereof, was deemed to have been amended on March 18, 2009 (the
"Amendment") as a result of the Credit Agreement Modification dated as of such
date, as follows:
(a) Schedule B of the Existing Note Agreement was amended to amend and
restate in its entirety the definition of "Fixed Charge Coverage Ratio" to read
as follows:
"Fixed Charge Coverage Ratio" means, at any time in respect to any
Debt with respect to which the Company or any Subsidiary is becoming
liable, the ratio of (a) (i) EBIT in respect of the period comprised of the
four consecutive fiscal quarters ended immediately prior to such time in
respect of which financial statements have been delivered pursuant to
Sections 7.1(a) or 7.1(b) plus (ii) Rent Expense for such period, plus
(iii), if such period includes the fiscal quarter ended January 31, 2009,
the 2008 Restructuring Charges (provided that this clause (iii) shall be
applicable solely for determining compliance with Section 10.3(a)(iii) and
shall not be applicable for any other purpose), to (b) (i) Rent Expense for
such period plus (ii) Interest Expense for such period (assuming that the
entire principal amount of such Debt was incurred on the first day of such
period and remained outstanding at all times during such period and such
Debt accrued interest at the rate as would have been accrued on such Debt
during such period).
(b) Schedule B of the Note Purchase Agreement was amended to add the
following new term in alphabetical order:
"2008 Restructuring Charges" means the following charges recorded by
the Company for the fiscal quarter ended January 31, 2009 in its financial
statements delivered pursuant to Sections 7.1(a) or 7.1(b):
(a) Staff restructuring charges of not more than $97,838,611;
(b) Iridesse product channel closedown charges of not more than
$7,548,519;
(c) Yellowknife, NWT, Canada closedown charges of not more than
$3,381,900; and
(d) Target Resources plc loan impairment charges of not more than
$12,373,077.
(c) The Noteholders acknowledge that they have received the agreed-upon fee
in connection with the Credit Agreement Modification and the Amendment.
SECTION 2. Reference To And Effect Upon The Note Agreement.
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(a) Except as specifically modified above, the Note Agreement and the
other Financing Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Acknowledgment
shall not, and the execution, delivery and effectiveness of the Amendment
did not, operate as a waiver of any right, power or remedy of any
Noteholder under the Note Agreement or any Financing Document, nor
constitute a waiver of any provision of the Note Agreement or any Financing
Document, except as specifically set forth herein or therein. Each
reference in the Note Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to the
Note Agreement as amended by the Amendment.
SECTION 3. Costs And Expenses. The Company agrees to reimburse the Noteholders
for all reasonable fees, costs and expenses, including the fees, costs and
expenses of their counsel or other advisors for advice, assistance, or other
representation in connection with this Acknowledgment and the Amendment.
SECTION 4. Governing Law. THIS ACKNOWLEDGMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF NEW YORK.
SECTION 5. Headings. Section headings in this Acknowledgment are included herein
for convenience of reference only and shall not constitute a part of this
Acknowledgment for any other purposes.
SECTION 6. Counterparts. This Acknowledgment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Acknowledgment. Any party hereto
may execute and deliver a counterpart of this Acknowledgment by delivering by
facsimile or other electronic transmission a signature page of this
Acknowledgment signed by such party, and any such facsimile or other
electronically transmitted signature shall be treated in all respects as having
the same effect as an original signature. Any party delivering by facsimile or
other electronic transmission a counterpart executed by it shall promptly
thereafter also deliver a manually signed counterpart of the Acknowledgment.
SECTION 7. Reaffirmation of Guaranty. Each Guarantor hereby consents to the
terms of this Acknowledgment and the Amendment and agrees and acknowledges that
its obligations under the Guaranty Agreement shall remain in full force and
effect after giving effect to this Acknowledgment and the Amendment.
(signature pages follow)
IN WITNESS WHEREOF, the parties hereto have executed this Acknowledgment of
First Amendment to Note Purchase Agreement as of the date first written above.
COMPANY:
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▇▇▇▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
NOTEHOLDERS:
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THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Vice President
FORETHOUGHT LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors,
L.P. (as Investment Advisor)
By: Prudential Private Placement Investors, Inc.
(as its General Partner)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Vice President
[Signature page to Acknowledgment of First Amendment to Note Purchase Agreement
- A/72910884. 8Tiffany & Co.]
The foregoing is hereby acknowledged and
agreed to as of the date thereof:
GUARANTORS:
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▇▇▇▇▇▇▇ AND COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
▇▇▇▇▇▇▇ & CO. INTERNATIONAL
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇▇▇ & CO. JAPAN INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
[Signature page to Acknowledgment of First Amendment to Note Purchase Agreement
- A/72910884. 8Tiffany & Co.]