EXHIBIT 10.1
FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT DATED AS OF
APRIL 30, 2003 (AS AMENDED FROM TIME TO TIME, THE "AGREEMENT"), BY
AND BETWEEN HEADS & THREADS INTERNATIONAL LLC, A DELAWARE
LIMITED LIABILITY COMPANY (THE "COMPANY") AND LASALLE BANK
NATIONAL ASSOCIATION (THE "BANK")
This First Amendment and Waiver to the Agreement ("Amendment") is entered
into as of March 30, 2004 by and between the Company and the Bank.
All capitalized terms stated in this Amendment and not defined herein
shall have the same meaning as set forth in the Agreement.
WHEREAS, the Bank has made Loans to the Company pursuant to the Agreement;
and
WHEREAS, the Company has requested the Bank's consent to the Company's
conduct of business in Mexico through the formation and operation of the Mexican
Subsidiary (as defined below); and
WHEREAS, the Bank is willing to consent to the formation and operation of
such Mexican Subsidiary; and
WHEREAS, the Company and the Bank have agreed to amend the Agreement as
stated herein and grant certain waivers as referenced herein. Now, therefore, in
consideration of the fulfillment of each of the terms and conditions set forth
herein, the parties hereto agree as follows:
Section 1. Amendments to Agreement.
a. The definition of "Eligible Inventory" in Section 1.1 of the
Agreement is amended to delete the phrase "and (v)" and substitute therefor the
following:
(v) it is not owned by the Mexican Subsidiary or located in the
Country of Mexico; and (vi)
b. The definition of "Loan Documents" in Section 1.1 of the Agreement
is amended to include the Stock Pledge and all documents related thereto as
additional Loan Documents.
c. A new definition of "Mexican Subsidiary" is added to Section 1.1 of
the Agreement as follows:
"Mexican Subsidiary" means a Subsidiary (including Subsidiaries of
such Subsidiary) organized and existing in the Country of Mexico.
d. A new definition of "Stock Pledge" is added to Section 1.1 of the
Agreement as follows:
"Stock Pledge" means the Stock Pledge Agreement dated as of March
30, 2004 executed and delivered by the Company to the Bank and the
Membership Pledge Agreement dated as of March 30, 2004 executed and
delivered by the Company to the Bank pledging the Company's
membership interest in Heads and Threads (Mexico) LLC, a Delaware
limited liability company ("H&T Mexico") to the Bank.
e. Section 6.15 of the Agreement is amended to add a new subsection
(viii) stating:
(viii) Investments in the Mexican Subsidiary not exceeding
$3,000,000 in the aggregate at any time outstanding whether directly
or indirectly through Heads and Threads (Mexico) LLC.
f. Section 6.22 of the Agreement is amended to add the following after
the phrase "acquire any Subsidiary": "(except the Mexican Subsidiary and Heads
and Threads (Mexico) LLC)".
g. The Company's address for receipt of notices pursuant to Article XII
of the Agreement is changed pursuant to Section 12.2 of the Agreement to be the
following:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: ▇▇▇▇ ▇.
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Section 2. Waivers and Consent.
a. The Company has requested that the Bank waive certain provisions of
the Security Agreement set forth on Schedule 1 hereto which would otherwise be
violated by the maintenance of certain Company Inventory and cash in Mexico from
time to time. Subject to the Company's satisfaction of all conditions stated in
Section 4 hereof, the Bank hereby grants to the Company a waiver of any
violations of such provisions which would be caused solely by the Company's,
Heads and Threads (Mexico) LLC's or the Mexican Subsidiary's maintenance in
Mexico of Inventory and cash with a combined aggregate cost (for the Inventory)
and value (for the cash) not exceeding $3,000,000 (the "Waivers").
The Waivers set forth herein are effective solely for the purpose
set forth herein and shall be limited precisely as written and shall not be
deemed to be a consent to any amendment, waiver, modification of, or
noncompliance with, any other term or condition of the Agreement as amended
hereby or otherwise prejudice any right or remedy which the Bank may now have or
may have in the future in connection with the Agreement.
Section 3. Representations and Warranties. The Company represents and
warrants that:
a. The representations and warranties contained in the Agreement are
true and correct in all material respects on and as of the date hereof as if
such representations and warranties had been made on and as of the date hereof
(except to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty is true
and correct in all material respects on and as of such earlier date); and
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b. The Company is in compliance with all the terms and provisions set
forth in the Agreement and no Default or Unmatured Default has occurred and is
continuing except for those waived pursuant to Section 2 hereinbefore or as
previously waived.
Section 4. Conditions to Effectiveness. This Amendment is subject to the
satisfaction in full of the following conditions precedent:
a. The Lender shall have received executed originals of this Amendment;
b. The Lender shall have received copies of the organization documents
and respective by-laws and operating agreement for the Mexican Subsidiary and
H&T Mexico certified by the Company's Secretary or Assistant Secretary (with
copies certified by the applicable Secretary of State to be delivered to the
Lender as soon as practicable thereafter);
c. The Lender shall have received executed originals of the Stock
Pledge along with the original stock certificates for the stock pledged therein
and executed stock powers with respect to such stock;
d. The Lender shall have received payment of the fees provided in
Section 7 of this Amendment; and
e. All legal matters incident to this Amendment shall be reasonably
satisfactory to ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Bank.
Section 5. Full Force and Effect. Except as expressly amended and waived
herein, the Agreement and the Loan Documents are hereby ratified and confirmed,
and shall continue in full force and effect in accordance with the provisions
thereof on the date hereof. As used in the Agreement and the Loan Documents, the
terms "Agreement", "this Agreement", "herein", "hereafter", "hereto", "hereof",
and words of similar import, shall, unless the context otherwise requires, mean
the Agreement as amended by this Amendment.
Section 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Section 7. Expenses. The Company agrees to pay all out-of-pocket expenses
incurred by Lender in connection with the preparation, execution and delivery of
this Amendment and the other documents incident hereto, including, but not
limited to, the reasonable fees and disbursements of ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Bank.
Section 8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one instrument.
Section 9. Headings. The headings of this Amendment are for the purposes
of reference only and shall not affect the construction of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
COMPANY:
HEADS & THREADS INTERNATIONAL LLC
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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ITS: VP Finance & CFO
BANK:
LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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ITS: First Vice President
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SCHEDULE 1
PROVISIONS OF THE SECURITY AGREEMENT SUBJECT TO THE WAIVERS
1. The Warranties and Representations in Sections 3(iv) and 3(v) of the
Security Agreement.
2. The Covenant in Section 7(ii) of the Security Agreement.