SECOND AMENDMENT AND AGREEMENT
Exhibit
10.1
This
SECOND AMENDMENT AND AGREEMENT, dated as of June 17, 2009 (this “Second Amendment and
Agreement”), is hereby entered into by and between American Apparel,
Inc., a Delaware corporation (the “Company”), and
Lion/Hollywood L.L.C., a Delaware limited liability company (“Lion”).
WHEREAS,
the Company and Lion are parties to the Investment Agreement, dated as of March
13, 2009, as amended as of April 10, 2009 (the “Investment
Agreement”);
WHEREAS,
Section 5.2 of the Investment Agreement permits the Company and Lion to amend
the Investment Agreement by an instrument in writing signed by duly authorized
officers of each of the Company and Lion; and
WHEREAS,
the Company and Lion each desire to further amend the Investment Agreement and
enter into certain other agreements as provided herein.
NOW,
THEREFORE, in consideration of the premises, and of the representations,
warranties, covenants and agreements set forth herein, the Company and Lion
hereby agree as follows:
1. Defined
Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Investment Agreement.
2. Amendment of Sections 4.1(c)
and 4.1(f) of the Investment Agreement. Sections 4.1(c) and
4.1(f) of the Investment Agreement are hereby amended by replacing all
references therein to “June 30, 2009” with “September 30, 2009.”
3. Company Stockholder
Meeting. The Company agrees to use its commercially reasonable
best efforts to hold an annual meeting of stockholders of the Company (the
“Stockholder
Meeting”) as soon as reasonably practicable and in any event prior to
September 30, 2009 for the purpose of electing each of the Investor Directors to
the Board, among other matters. The Company further agrees to
nominate each of the Investor Directors to be elected as a director at the
Stockholder Meeting, include each such nomination and other required information
regarding such individuals in the preliminary and definitive proxy statements
for the Stockholder Meeting and solicit or cause the solicitation of
proxies in connection with the election of each such individual as a
director.
4. Representations and
Warranties. Each of the Company and Lion hereby represents and
warrants that (a) it has the requisite power and authority to execute and
deliver this Second Amendment and Agreement, (b) this Second Amendment and
Agreement has been duly and validly authorized by all necessary action by such
party, and (c) this Second Amendment and Agreement has been duly and validly
executed and delivered and, assuming due authorization and execution by the
other party hereto,
constitutes
its legal, valid and binding obligation enforceable against it in accordance
with its terms.
5. Governing Law;
Jurisdiction. This Second Amendment and Agreement will be
governed by and construed in accordance with the laws of the State of New
York. Any action against either party hereto, including any action
for provisional or conservatory measures or action to enforce any judgment
entered by any court in respect of any thereof, may be brought in any federal or
state court of competent jurisdiction located in the Borough of Manhattan in the
State of New York, and each party hereto irrevocably consents to the
jurisdiction and venue in the United States District Court for the Southern
District of New York and in the courts hearing appeals therefrom unless no
federal subject matter jurisdiction exists, in which event, each party hereto
irrevocably consents to jurisdiction and venue in the Supreme Court of the State
of New York, New York County, and in the courts hearing appeals
therefrom. Each party hereto hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Second Amendment and Agreement, any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to serve process in accordance with
this Second Amendment and Agreement, that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and to the fullest extent permitted by applicable law, that the suit, action or
proceeding in any such court is brought in an inconvenient forum, that the venue
of such suit, action or proceeding is improper, or that this Second Amendment
and Agreement, or the subject matter hereof or thereof, may not be enforced in
or by such courts and further irrevocably waives, to the fullest extent
permitted by applicable law, the benefit of any defense that would hinder,
xxxxxx or delay the levy, execution or collection of any amount to which the
party is entitled pursuant to the final judgment of any court having
jurisdiction. Each party expressly acknowledges that the foregoing
waiver is intended to be irrevocable under the laws of the State of New York and
of the United States of America.
6. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS SECOND AMENDMENT AND AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
7. Specific
Performance. The parties hereby acknowledge and agree that
each party would not have an adequate remedy at law for money damages, and
irreparable damage would occur, in the event that any of the provisions of this
Second Amendment and Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that any party shall be entitled to an injunction or injunctions to prevent
breaches of this Second Amendment and Agreement by the other party and to
enforce specifically the terms and provisions of this Second Amendment and
Agreement against the other party, this being in addition to any other remedy to
which either such party is entitled at law or in equity, and each party waives
(a)
the defense in any action for an injunction or other equitable relief that a
remedy at law would be adequate and (b) agrees that any such action for
injunctive relief or specific performance may be brought in (and hereby
irrevocably submits to the jurisdiction of) any federal or state court in the
State of New York.
8. Severability. If
any provision of this Second Amendment and Agreement or the application thereof
to any person (including the officers and directors of the parties hereto) or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to which it has
been held invalid or unenforceable, will remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original intent
of the parties.
9. Counterparts and
Facsimile. For the convenience of the parties hereto, this
Second Amendment and Agreement may be executed in any number of separate
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts will together constitute the same
agreement. Executed signature pages to this Second Amendment and
Agreement may be delivered by facsimile or other electronic means and such
electronic signature pages will be deemed as sufficient as if physical signature
pages had been delivered.
10. No Other Amendment and
Agreements. Except to the extent expressly amended by this
Second Amendment and Agreement, all terms of the Investment Agreement shall
remain in full force and effect without amendment, change or
modification.
11. References to Investment
Agreement. All references in the Investment Agreement to the
“Agreement” shall be deemed to be the Investment Agreement as amended by this
Second Amendment and Agreement.
[signature page
follows]
IN
WITNESS WHEREOF, the Company and Lion have caused this Second Amendment and
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
By:
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/s/
Xxxxxx Xxxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxxx
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Title: Chief
Financial Officer
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LION/HOLLYWOOD
L.L.C.
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By:
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/s/
Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title: President
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