EXHIBIT 10.208
CATALINA LIGHTING, INC. AND SUBSIDIARIES
FIRST AMENDMENT TO
FORBEARANCE AND AMENDATORY AGREEMENT
THIS FIRST AMENDMENT TO FORBEARANCE AND AMENDATORY AGREEMENT
("Amendment") is made and entered into as of June 15, 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 "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 the UK
Issuing Bank (the "UK Issuing Bank") and as the UK Swingline Lender (the "UK
Swingline Lender").
W I T N E S S E T H:
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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 Forbearance and Amendatory Agreement, dated as of May 15,
2001, (the "Original Forbearance Agreement");
WHEREAS, the Borrowers have requested and the Administrative Agent and
the Required Lenders have agreed to amend the Original Forbearance Agreement as
more thoroughly described herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1) Amendment to Section 3 of the Original Forbearance Agreement. Section
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3(a) of the Original Forbearance Agreement is hereby amended by
replacing the existing Section 3(a) with the following new Section
3(a):
(a) Forbearance Period. At the request of Borrowers, Lenders
agree to waive the Existing Event of Default, as of 12:00
noon, prevailing Atlanta, Georgia time on May 15, 2001 until
the earliest to occur of the following times: (i) 12:00 noon,
prevailing Atlanta, Georgia time on July 15, 2001; (ii) the
time at which Borrowers fail to comply in any respect with
their respective covenants to Lenders set forth in Section 8
of the Credit Agreement; or (iii) the occurrence of any Event
of Default under any of the Credit Documents (the period
beginning at 12:00 noon, prevailing Atlanta, Georgia time on
May 15, 2001 and terminating on the earliest of such dates
being hereinafter referred to as the "Forbearance Period");
2) Expenses. The Borrowers shall pay, at the time all other indebtedness
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owing to Administrative Agent and the Lenders, the legal fees and other
expenses of the Administrative Agent, including, without limitation,
legal fees and other expenses paid or owed to King & Spalding and
incurred with respect to the creation and implementation of this
Amendment and the other documents contemplated hereby. Nothing herein
shall limit the provisions relating to expenses of the Credit Agreement
or other Credit Documents.
3) Estoppel. Borrowers hereby represent and warrant that there are no
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claims, causes of action, suits, debts, liens, obligations,
liabilities, demands, losses, costs and expenses (including attorneys'
fees) of any kind, character or nature whatsoever, known or unknown,
fixed or contingent, which Borrowers may have or claim to have against
the Administrative Agent or the Lenders, which might arise out of or be
connected with any act of commission or omission of the Administrative
Agent or the Lenders existing or occurring on or prior to the date of
this Amendment, including, without limitation, any claims, liabilities
or obligations arising with respect to the Credit Agreement and the
other Credit Documents.
4) Reservation of Rights. The Borrowers acknowledge and agree that the
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Administrative Agent and the Lenders (i) have not acquiesced to any
noncompliance by the Borrowers with the exact terms of the Credit
Agreement relating to any Event of Default (other than the temporary
waiver of the Existing Event of Default granted herein), (ii) intend to
strictly enforce the terms of the Credit Agreement and the Credit
Documents, in the exercise of their sole and absolute discretion, and
(iii) hereby reserve all rights, powers and remedies under the Credit
Agreement and the other Credit Documents with respect to the Existing
Event of Default (upon termination of the Forbearance Period) and any
other noncompliance with the terms of the Credit Agreement or any of
the other Credit Documents. In no event shall the Lenders' honoring of
any requests or making of any Revolving Loans, be deemed a permanent
waiver of any Existing Event of Default or any other noncompliance with
the terms of the Credit Agreement or any of the other Credit Documents
that hereafter may occur.
5) Restatement of Representations and Warranties. The Borrowers hereby
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restate and renew each and every representation and warranty heretofore
made by it in the Credit Agreement and the other Credit Documents as
fully as if made on the date hereof and with specific reference to this
Amendment and all other loan documents executed and/or delivered in
connection herewith, but excluding therefrom the effect of the Existing
Event of Default.
6) Ratification. The Borrowers hereby restate, ratify and reaffirm each
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and every term, covenant and condition set forth in the Credit
Agreement and the other Credit Documents effective as of the date
hereof.
7) Release. Borrowers hereby release, acquit, and forever discharge each
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of the Lenders, and each and every past and present subsidiary,
affiliate, stockholder, officer, director, agent, servant, employee,
representative, and attorney of the Lenders, from any and all claims,
causes of action, suits, debts, liens, obligations, liabilities,
demands, losses, costs and expenses (including attorneys' fees) of any
kind, character, or nature whatsoever, known or unknown, fixed or
contingent, which the Borrowers may have or claim to have now or which
may hereafter arise out of or connected with any act of commission or
omission of the Lenders existing or occurring prior to the date of this
Amendment or any instrument executed prior to the date of this
Amendment including, without limitation, any claims, liabilities or
obligations arising with respect to the Credit Agreement or the other
of the Credit Documents. The provisions of this Section 7 shall be
binding upon the Borrowers and shall inure to the benefit of the
Lenders, and their respective heirs, executors, administrators,
successors and assigns.
8) Conditions Precedent. This Amendment shall become effective when and
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only when the Administrative Agent shall have received executed
originals of this Amendment and upon receipt of all outstanding fees
and expenses owed by the Borrowers.
9) Miscellaneous.
a) Entire Agreement. This Amendment reflects the entire understanding of
the parties with respect to the subject matter herein contained and
supersedes any prior agreements, whether written or oral, in regard
thereto.
b) Full Force and Effect. Except as expressly modified herein during the
Forbearance Period, all terms of the Credit Agreement and the Credit
Documents shall be and shall remain in full force and effect and shall
constitute the legal, valid, binding and enforceable obligations of
Borrowers.
c) No Waiver. This Amendment is not intended to operate as, and shall not
be construed as, a waiver of any Event of Default, whether known to
the Lenders or unknown, as to which all rights of Lenders shall remain
reserved.
d) Governing Law. This Amendment shall be governed by, and shall be
construed in accordance with, the laws of the State of Georgia and all
applicable laws of the United States of America.
e) WAIVER OF RIGHT TO JURY TRIAL. EACH BORROWER WAIVES TRIAL BY JURY AND
CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE A JUDGE OF A THE COURT OF COMPETENT JURISDICTION.
f) Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be an original and all of which, taken together,
shall constitute but one and the same agreement among the parties.
g) Binding Nature. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
h) Captions. The captions to the Sections and paragraphs of the Amendment
are for the convenience of the parties only, and are not a part of
this Amendment.
i) Time of the Essence. Time is of the essence under this Amendment.
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:______________________________
Name:
Title:
CATALINA INTERNATIONAL PLC,
as a Borrower
By:______________________________
Name:
Title:
RING LIMITED (formerly known as
Ring PLC), as a Borrower
By:______________________________
Name:
Title:
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, as a Lender
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By:
Name:
BANK UNITED FSB, as a Lender
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By:
Name:
DRESDNER BANK
LATEINAMERIKA, AG, MIAMI
AGENCY, as a Lender
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By:
Name:
▇▇▇▇▇▇▇▇ BANK, N.A. as a
Lender
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By:
Name:
LASALLE BANK NATIONAL
ASSOCIATION, as a Lender
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By:
Name:
UNION PLANTERS BANK, N.A.,
as a Lender
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By:
Name:
ACKNOWLEDGMENT AND CONSENT
PARENT GUARANTOR
The undersigned hereby acknowledges receipt of a copy of the foregoing
Amendment (the "Amendment"; capitalized terms used herein and not defined herein
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shall have the meanings given to them in the Amendment), consents to the terms
and provisions set forth therein, and agrees that the Parent Guaranty, dated as
of July 18, 2000, as amended and supplemented through the date hereof (the
"Parent Guaranty") made by the undersigned, in favor of the Lenders, the
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Administrative Agent, the Domestic Issuing Bank, the Domestic Swingline Lender,
the U.K. Issuing Bank and the U.K. Swingline Lender, will continue in full force
and effect without diminution or impairment notwithstanding the execution and
delivery of the foregoing Amendment. The undersigned further acknowledges and
agrees that, upon effectiveness of the foregoing Amendment and from and after
the date thereof, each reference in the Credit Agreement and all of the Credit
Documents shall mean and be a reference to the Credit Agreement and all other
Credit Documents as amended by the Amendment.
CATALINA LIGHTING, INC., as
Parent Guarantor
By: _____________________________
Name:
Title:
ACKNOWLEDGMENT AND CONSENT
HOLDINGS BORROWER GUARANTOR
The undersigned hereby acknowledges receipt of a copy of the
foregoing Amendment (the "Amendment"; capitalized terms used herein and not
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defined herein shall have the meanings given to them in the Amendment), consents
to the terms and provisions set forth therein, and agrees that the Holdings
Borrower Guaranty, dated as of July 18, 2000, as amended and supplemented
through the date hereof (the "Holdings Borrower Guaranty") made by the
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undersigned, in favor of the Lenders, the Administrative Agent, the Domestic
Issuing Bank, the Domestic Swingline Lender, the U.K. Issuing Bank and the U.K.
Swingline Lender, will continue in full force and effect without diminution or
impairment notwithstanding the execution and delivery of the foregoing
Amendment. The undersigned further acknowledges and agrees that, upon
effectiveness of the foregoing Amendment and from and after the date thereof,
each reference in the Credit Agreement and all of the Credit Documents shall
mean and be a reference to the Credit Agreement and all other Credit Documents
as amended by the Amendment.
CATALINA INTERNATIONAL PLC, as
Holdings Borrower Guarantor
By: ________________________________
Name:
Title: Director
ACKNOWLEDGMENT AND CONSENT
DOMESTIC SUBSIDIARY GUARANTORS
The undersigned hereby acknowledges receipt of a copy of the
foregoing Amendment (the "Amendment"; capitalized terms used herein and not
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defined herein shall have the meanings given to them in the Amendment), consents
to the terms and provisions set forth therein, and agrees that the Domestic
Subsidiary Guaranty, dated as of July 18, 2000, as amended and supplemented
through the date hereof (the "Domestic Subsidiary Guaranty") made by the
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undersigned, in favor of the Lenders, the Administrative Agent, the Domestic
Issuing Bank, the Domestic Swingline Lender, the U.K. Issuing Bank and the U.K.
Swingline Lender, will continue in full force and effect without diminution or
impairment notwithstanding the execution and delivery of the foregoing
Amendment. The undersigned further acknowledges and agrees that, upon
effectiveness of the foregoing Amendment and from and after the date thereof,
each reference in the Credit Agreement and all of the Credit Documents shall
mean and be a reference to the Credit Agreement and all other Credit Documents
as amended by the Amendment.
EACH OF THE SUBSIDIARIES OF THE
DOMESTIC BORROWER LISTED ON
SCHEDULE 1 HERETO, as the Subsidiary
Guarantors
By: ________________________________
Name:
Title:
CATALINA ADMINISTRATIVE CORPORATION, as a
Subsidiary Guarantor
By: ________________________________
Name:
Title:
SCHEDULE 1
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SUBSIDIARY GUARANTORS
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ANGEL STATION, INC., a Florida corporation
CATALINA INDUSTRIES, INC., a Florida corporation
CATALINA REAL ESTATE TRUST, INC., a Florida corporation
MERIDIAN LAMPS, INC., a Florida corporation
CATALINA LIGHTING ARGENTINA, INC., a Florida corporation
CATALINA MERCHANDISING, INC., a Florida corporation