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Exhibit 10.28(c)
FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS OF APRIL 3, 2000
(AS AMENDED FROM TIME TO TIME, THE "AGREEMENT"),
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BY AND BETWEEN HEADS & THREADS INTERNATIONAL LLC,
A DELAWARE LIMITED LIABILITY COMPANY (THE "BORROWER"),
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AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
AND LASALLE BANK NATIONAL ASSOCIATION,
AS LENDERS (THE "LENDERS"), AND AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, AS AGENT (THE "AGENT")
This First Amendment to the Agreement ("First Amendment") is entered as
of April 28, 2000 by and among the Borrower, the Lenders and the Agent.
All capitalized terms stated in this First Amendment and not defined
herein shall have the same meaning as set forth in the Agreement.
WHEREAS, the Lenders have made Loans to the Borrower pursuant to the
Agreement; and
WHEREAS, the Borrower and the Lenders have agreed to permit Summit Bank
to join in the Agreement as an additional Lender with the Commitment set forth
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.
1. Schedule 1 and Schedule 2 to the Agreement are amended in their
entirety and replaced by the Schedule 1 and Schedule 2 attached to this First
Amendment and incorporated herein.
Section 2. Representations and Warranties. The Borrower represents and
warrants that:
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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
b. The Borrower is in compliance with all the terms and provisions set
forth in the Agreement and no Event of Default or Default has occurred and is
continuing.
Section 3. Conditions to Effectiveness. This First Amendment is subject
to the satisfaction in full of the following conditions precedent:
a. The Agent shall have received executed originals of this First
Amendment;
b. The Agent shall have received a fully executed Assignment and
Assumption and Notice of Assignment and Assumption in the forms attached hereto;
c. The Agent shall have received payment of the fees provided in
Section 12.3.2 of the Agreement; and
d. All legal matters incident to this First Amendment shall be
reasonably satisfactory to Xxxx, Xxxxxx & Xxxxxxxxx, counsel for the Agent.
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Section 4. Full Force and Effect. Except as expressly provided herein,
the Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Agreement, 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 First Amendment and all references to "Lenders",
"Commitment" and "Pro Rata Percentage" shall mean such terms as stated on
Schedule 1 and Schedule 2 attached hereto.
Section 5. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Section 6. Counterparts. This First 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 7. Headings. The headings of this First Amendment are for the
purposes of reference only and shall not affect the construction of this First
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their duly authorized officers, all as of the date and
year first above written.
BORROWER:
HEADS & THREADS INTERNATIONAL LLC,
A DELAWARE LIMITED LIABILITY COMPANY
BY: /S/XXXXXX X. XXXXXXXXXX
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ITS: PRESIDENT
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LENDERS:
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AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
BY: /S/XXXXX X. XXXXXXX
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ITS: OFFICER
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LASALLE BANK NATIONAL ASSOCIATION
BY: /S/XXXXX X. XXXXX
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ITS: ASSISTANT VICE PRESIDENT
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AGENT:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
BY: /S/XXXXX X. XXXXXXX
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ITS: OFFICER
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SCHEDULE 1
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Pro Rata
Lenders Commitment Percentage
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American National Bank and
Trust Company of Chicago $20,000,000.00 33.333%
LaSalle Bank National
Association $20,000,000.00 33.333%
Summit Bank $20,000,000.00 33.333%
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SCHEDULE 2
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Lender Addresses
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American National Bank and
Trust Company of Chicago
Asset Based Finance Group
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
Commercial Banking
000 Xxxxx Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Summit Bank
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and
Assumption") dated as of April 28, 2000 is made between AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO (the "Assignor") a SUMMIT BANK (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated
as of April 3, 2000 (as amended, amended and restated, modified, supplemented or
renewed, the "Credit Agreement") among HEADS & THREADS INTERNATIONAL LLC, a
Delaware limited liability company (the "Borrower"), the several financial
institutions from time to time party thereto (including the Assignor, the
"Lenders"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as agent
for the Banks (the "Agent"). Any terms defined in the Credit Agreement and not
defined in this Assignment and Assumption are used herein as defined in the
Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Loans (the "Committed Loans") to the Borrower in an
aggregate amount not to exceed $40,000,000 (the "Commitment");
WHEREAS, the Assignor has made Committed Loans in the aggregate
principal amount of $ _______ to the Borrower;
WHEREAS, [the Assignor has acquired a participation in the Issuing
Bank's liability under Facility Letters of Credit in an aggregate principal
amount of $__________ (the "L/C Obligations")] [no Facility Letters of Credit
are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee part of the
rights and obligations of the Assignor under the Credit Agreement in respect of
its Commitment, together with a corresponding portion of each of its outstanding
Committed Loans and L/C Obligations, in an amount equal to $20,000,000 (the
"Assigned Amount") on the terms and subject to the conditions set forth herein
and the Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Assumption.
(a) Subject to the terms and conditions of this Assignment and
Assumption, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and
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Assumption) 50% (the "Assignee's Percentage Share") of (A) the Commitment and
the Committed Loans and the L/C Obligations of the Assignor and (B) all related
rights, benefits, obligations, liabilities and indemnities of the Assignor under
and in connection with the Credit Agreement and the Loan Documents.
(b) On the Effective Date, Assignee shall pay to Assignor $_______
representing all outstanding principal and accrued interest upon Committed Loans
and L/C Obligations.
(c) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender. It is the
intent of the parties hereto that the Commitment of the Assignor shall, as of
the Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
the Credit Agreement to the extent such rights relate to the time prior to the
Effective Date.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Commitment will be $20,000,000.
(e) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $20,000,000.
2. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $________,
representing the Assignee's Pro Rata Share of the principal amount of all
Committed Loans.
(b) The Assignee further agrees to pay to the Agent a processing
fee in the amount specified in the Credit Agreement.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Commitment, Committed Loans and L/C Obligations shall be for
the account of the Assignor. Any interest,
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fees and other payments accrued on and after the Effective Date with respect to
the Assigned Amount shall be for the account of the Assignee. Each of the
Assignor and the Assignee agrees that it will hold in trust for the other party
any interest, fees and other amounts which it may receive to which the other
party is entitled pursuant to the preceding sentence and pay to the other party
any such amounts which it may receive promptly upon receipt. Upon the Effective
Date, fifty percent (50%) of the Closing Fee received by the Assignor shall be
allocated and paid to the Assignee.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 6.1 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Assumption; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date for
this Assignment and Assumption shall be May 1, 2000 (the "Effective Date");
provided that the following conditions precedent have been satisfied on or
before the Effective Date:
(i) this Assignment and Assumption shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Borrower and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the Assignee
under Section 12.3.1 of the Credit Agreement shall have been duly obtained and
shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Assumption;
(iv) the Assignee shall have complied with Section 12.3 of the
Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b) hereof and
in Section 12.3.2 of the Credit Agreement shall have been paid to the Agent; and
(vi) the Assignor shall have assigned and the Assignee shall
have assumed a percentage equal to the Assignee's Percentage
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Share of the rights and obligations of the Assignor under the Credit Agreement.
(b) Promptly following the execution of this Assignment and
Assumption, the Assignor shall deliver to the Borrower [, the Issuing Bank] and
the Agent for acknowledgement by the Agent, a Notice of Assignment substantially
in the form attached hereto as Schedule 1.
6. Agent.
(a) The Assignee hereby appoints and authorizes the Assignor to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Lenders pursuant to the terms of
the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.
7. Withholding Tax.
The Assignee (a) represents and warrants to the Bank, the Agent and the
Borrower that under applicable law and treaties no tax will be required to be
withheld by the Bank with respect to any payments to be made to the Assignee
hereunder, (b) agrees to furnish (if it is organized under the laws of any
jurisdiction other than the United States or any State thereof) to the Agent and
the Borrower prior to the time that the Agent or Borrower is required to make
any payment of principal, interest or fees hereunder, duplicate executed
originals of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein the Assignee claims entitlement to the
benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms 4224 or 1001 upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and regulations and
amendments thereto, duly executed and completed by the Assignee, and (c) agrees
to comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim; (ii) it is duly
organized and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Assumption and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Assumption and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than
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any already given or obtained) for its due execution, delivery and performance
of this Assignment and Assumption, and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or notice to,
or filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment and Assumption has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document famished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Borrower, or the performance or observance by the Borrower, of any of its
respective obligations under the Credit Agreement or any other instrument or
document famished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken, all
action necessary to execute and deliver this Assignment and Assumption and any
other documents required or permitted to be executed or delivered by it in
connection with this Assignment and Assumption, and to fulfill its obligations
hereunder; (ii) no notices to, or consents, authorizations or approvals of, any
Person are required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment and Assumption; and apart
from any agreements or undertakings or filings required by the Credit Agreement,
no further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and
Assumption has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the Assignee
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is eligible to be an Assignee under the Credit Agreement.
9. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions
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contemplated by this Assignment and Assumption, including the delivery of any
notices or other documents or instruments to the Borrower or the Agent, which
may be required in connection with the assignment and assumption contemplated
hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Assumption shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Assumption shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Assumption.
(d) This Assignment and Assumption may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any State
or Federal court sitting in Illinois over any suit, action or proceeding arising
out of or relating to this Assignment and Assumption and irrevocably agrees that
all claims in respect of such action or proceeding may be heard and determined
in such Illinois State or Federal court. Each party to this Assignment and
Assumption hereby irrevocably waives,
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to the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ASSUMPTION, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Assumption to be executed and delivered by their duly authorized
officers as of the date first above written.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
BY:
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ITS: ________________
Address:
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000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
SUMMIT BANK
BY:
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ITS: ________________
Address:
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000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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