Exhibit 10.28(g)
EXECUTION COPY
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
DATED AS OF APRIL 3, 2000
(AS AMENDED FROM TIME TO TIME, THE "AGREEMENT"),
BY AND BETWEEN HEADS & THREADS INTERNATIONAL LLC,
A DELAWARE LIMITED LIABILITY COMPANY (THE "BORROWER"),
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
LASALLE BANK NATIONAL ASSOCIATION
AND FLEET NATIONAL BANK, AS LENDERS (THE "LENDERS"),
AND AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, AS AGENT (THE "AGENT")
This Fifth Amendment to the Agreement ("Amendment" or "Fifth
Amendment") is entered into as of November 26, 2001 by and among the Borrower,
the Lenders and the Agent.
All capitalized terms stated in this 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 that Fleet National
Bank shall withdraw as a Lender in consideration of a one time payment to Fleet
National Bank of principal, interest and accrued fees in the aggregate amount of
$11,223,155.67. 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. Upon execution of this Amendment, the Fleet Payment (as defined
hereinafter) shall be contemporaneously paid to Fleet National Bank, and Fleet
National Bank shall cease to be a Lender under the Agreement.
b. Schedule 1 to the Agreement is amended in its entirety and replaced
by the Schedule 1 attached to this Amendment and incorporated herein.
c. As of the date of this Amendment, Fleet National Bank is hereby
deleted as a Lender under the Agreement and is released from all further
obligations as a Lender under the Agreement.
d. The definition of "Aggregate Revolving Commitment" stated in Section
1.1 of the Agreement is amended by deleting the figure "$42,000,000" therefrom
and substituting therefor the figure "$28,000,000".
e. The definition of "Borrowing Base" stated in Section 1.1 of the
Agreement is amended by deleting the figure "$42,000,000" therefrom and
substituting therefor the figure "$28,000,000".
f. Section 6.25 of the Agreement is deleted.
Section 2. Waiver.
a. The Borrower has requested that the Agent and the Lenders waive the
provisions of Sections 2.4.5 and 11.2 under the Agreement which otherwise
require distribution of payments by the Agent on a pro rata basis among the
Lenders, in order to permit Borrower to make a one time payment of principal,
interest and accrued fees in the aggregate amount of $11,223,155.67 to Fleet
National Bank in consideration of Fleet National Bank's termination as a Lender
(the "Fleet Payment").
b. In response to such request, the Agent and the Lenders, hereby waive
the requirements of Sections 2.4.5 and 11.2 of the Agreement with respect to the
Fleet Payment and further consent to Fleet National Bank's acceptance of the
Fleet Payment.
-2-
c. The waiver set forth herein is 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, or otherwise prejudice any
right or remedy which the Agent and the Lenders may now have or may have in the
future in connection with the Agreement.
Section 3. Representations and Warranties. The Borrower 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
b. The Borrower 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.
Section 4. Conditions to Effectiveness. This Amendment is subject to
the satisfaction in full of the following conditions precedent:
a. The Agent shall have received executed originals of this Amendment;
b. The Agent and each respective Lender shall have received an executed
original of the Second Amended and Restated Promissory Note substantially in the
form of Exhibit 1 attached hereto and incorporated herein;
c. The Agent shall have received payment of the fees provided in
Section 7 of this Amendment;
-3-
d. The Agent shall have received board resolutions from the Borrower
authorizing the execution of this Amendment; and
e. All legal matters incident to this Amendment shall be reasonably
satisfactory to Xxxx, Xxxxxx & Xxxxxxxxx, counsel for the Agent.
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 prior to the date hereof and
as amended by this Amendment, all references to "Lenders", "Commitment" and "Pro
Rata Percentage" shall mean such terms as stated on Schedule 1 attached hereto,
and all references to the "Note" or "Notes" shall mean the Third Amended and
Restated Promissory Notes in the form attached hereto as Exhibit 1.
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 Borrower agrees to pay all out-of-pocket
expenses incurred by Agent 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 Xxxx, Gerber &
Xxxxxxxxx, counsel for the Agent.
-4-
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.
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.
BORROWER:
HEADS & THREADS INTERNATIONAL LLC, a
Delaware limited liability company
BY: /s/ Xxxxxxx Xxxxx
--------------------------------------
ITS: Executive Vice President
--------------------------------
LENDERS:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
ITS: Assistant Vice President
--------------------------------
LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxx X. Xxxxx
--------------------------------------
ITS: Assistant Vice President
--------------------------------
FLEET NATIONAL BANK
-5-
BY: [Signature Illegible]
--------------------------------------
ITS: Vice President
--------------------------------
-6-
AGENT:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
ITS: Assistant Vice President
--------------------------------
-7-
SCHEDULE 1
Pro Rata
Lenders Commitment Percentage
------- ---------- ----------
American National Bank and $14,000,000.00 50.00%
Trust Company of Chicago
LaSalle Bank National $14,000,000.00 50.00%
Association
EXHIBIT 1
SECOND AMENDED AND RESTATED PROMISSORY NOTE
$14,000,000 NOVEMBER 26, 2001
FOR VALUE RECEIVED, the undersigned, HEADS & THREADS INTERNATIONAL LLC,
a Delaware limited liability company (the "Company"), hereby promises to pay to
the order of LASALLE BANK NATIONAL ASSOCIATION (the "Lender"), the principal sum
Fourteen Million and 00/100 Dollars ($14,000,000.00) or, if less, the aggregate
unpaid principal amount of all sums advanced by the Lender to the Company
pursuant to the Credit Agreement, dated as of April 3, 2000 and amended by First
Amendment dated April 3, 2000, a Second Amendment dated November 27, 2000, a
Third Amendment dated March 19, 2001, a Fourth Amendment dated August 14, 2001
and a Fifth Amendment dated November 26, 2001 (such Credit Agreement, as it may
be further amended, restated, supplemented or otherwise modified from time to
time, being hereinafter called the "Credit Agreement"), among the Company, the
Lender, the other banks parties thereto, and AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as agent for the Lenders, on the dates and in the amounts
provided in the Credit Agreement (except to the extent sums advanced with
respect to Facility Letters of Credit are reimbursed to the Lender by any other
Lender (as defined in the Credit Agreement) pursuant to the Credit Agreement).
The Company further promises to pay interest on the unpaid principal amount of
the Loans (except for the undrawn portions of any Facility Letters of Credit),
evidenced hereby from time to time at the rates, on the dates, and otherwise as
provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which
each Loan is made, the maturity date therefor and each payment of principal with
respect thereto on the schedules annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the Credit Agreement and this Second Amended and Restated
Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The portion of the principal amount of this Note evidencing outstanding
Facility Letters of Credit is the Lender's Pro Rata Share of such amount, as set
forth in Schedule 1 of the Credit Agreement, and shall be extinguished by either
termination of such Facility Letters of Credit, reimbursement of all amounts
paid by the Lender upon such Facility Letters of Credit or payment to the Lender
of an amount equal to the amount of all outstanding Facility Letters of Credit
pursuant to Section 2.3.9 of the Credit Agreement.
This Note is a renewal and replacement of the Promissory Note in the
original principal amount of $20,000,000 made and delivered by the Company to
the Lender as of April 28, 2000, the Amended and Restated Promissory Note in the
original principal amount of $21,666,666.67 dated November 27, 2000 made and
delivered by the Company to Lender, and the Second Amended and Restated
Promissory Note in the original principal amount of $14,000,000 dated August 14,
2001 made and delivered by the Company to the Lender, and nothing contained
herein or in the Fifth Amendment to the Credit Agreement dated as of November
26, 2001, shall be construed (a) to deem paid or forgiven the unpaid principal
balance of, or unpaid accrued interest on, said Promissory Note outstanding at
the time of their renewal and replacement by this Note, or (b) to release,
cancel, terminate or otherwise adversely affect all or any part of any lien,
mortgage, deed of trust, assignment, security interest or other encumbrance
heretofore granted to or for the benefit of the payee of said Promissory Note.
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Illinois applicable to contracts made and to be performed entirely
within such State.
HEADS & THREADS
INTERNATIONAL LLC
BY:
-----------------------------------
ITS:
----------------------------
EXHIBIT 1
SECOND AMENDED AND RESTATED PROMISSORY NOTE
$14,000,000 NOVEMBER 26, 2001
FOR VALUE RECEIVED, the undersigned, HEADS & THREADS INTERNATIONAL LLC,
a Delaware limited liability company (the "Company"), hereby promises to pay to
the order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO (the "Lender"),
the principal sum of Fourteen Million and 00/100 Dollars ($14,000,000.00) or, if
less, the aggregate unpaid principal amount of all sums advanced by the Lender
to the Company pursuant to the Credit Agreement, dated as of April 3, 2000 and
amended by First Amendment dated April 3, 2000, a Second Amendment dated
November 27, 2000, a Third Amendment dated March 19, 2001, a Fourth Amendment
dated August 14, 2001 and a Fifth Amendment dated November 26, 2001 (such Credit
Agreement, as it may be further amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "Credit Agreement"),
among the Company, the Lender, the other banks parties thereto, and AMERICAN
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as agent for the Lenders, on the
dates and in the amounts provided in the Credit Agreement (except to the extent
sums advanced with respect to Facility Letters of Credit are reimbursed to the
Lender by any other Lender (as defined in the Credit Agreement) pursuant to the
Credit Agreement). The Company further promises to pay interest on the unpaid
principal amount of the Loans (except for the undrawn portions of any Facility
Letters of Credit), evidenced hereby from time to time at the rates, on the
dates, and otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which
each Loan is made, the maturity date therefor and each payment of principal with
respect thereto on the schedules annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the Credit Agreement and this Second Amended and Restated
Promissory Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The portion of the principal amount of this Note evidencing outstanding
Facility Letters of Credit is the Lender's Pro Rata Share of such amount, as set
forth in Schedule 1 of the Credit Agreement, and shall be extinguished by either
termination of such Facility Letters of Credit, reimbursement of all amounts
paid by the Lender upon such Facility Letters of Credit or payment to the Lender
of an amount equal to the amount of all outstanding Facility Letters of Credit
pursuant to Section 2.3.9 of the Credit Agreement.
This Note is a renewal and replacement of a portion of the Promissory
Note in the original principal amount of $40,000,000 made and delivered by the
Company to the Lender as of April 3, 2000, a portion of which was assigned to
Summit Bank pursuant to Assignment and Assumption Agreement dated as of April
28, 2000, the Amended and Restated Promissory Note in the original principal
amount of $21,666,666.67 dated November 27, 2000 made and delivered by the
Company to Lender, and the Second Amended and Restated Promissory Note in the
original principal amount of $14,000,000 dated August 14, 2001 made and
delivered by the Company to the Lender, and nothing contained herein or in the
Fifth Amendment to the Credit Agreement dated as of November 26, 2001, shall be
construed (a) to deem paid or forgiven the unpaid principal balance of, or
unpaid accrued interest on, said Promissory Note outstanding at the time of
their renewal and replacement by this Note, or (b) to release, cancel, terminate
or otherwise adversely affect all or any part of any lien, mortgage, deed of
trust, assignment, security interest or other encumbrance heretofore granted to
or for the benefit of the payee of said Promissory Note.
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Illinois applicable to contracts made and to be performed entirely
within such State.
HEADS & THREADS
INTERNATIONAL LLC
BY:
-----------------------------------
ITS:
----------------------------
