Exhibit 10.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT ("First Amendment")
is made as of June 1, 2003 by and among Home Products International -
North America, Inc, a Delaware corporation ("Borrower"), the lenders who are
signatories hereto ("Lenders"), and Fleet Capital Corporation, a Rhode
Island corporation ("FCC"), as agent for Lenders hereunder (FCC, in such
capacity, being "Agent").
W I T N E S S T H:
WHEREAS Borrower, Agent and Lenders entered into a certain Third
Amended and Restated Loan and Security Agreement dated as of October 31,
2002 (said Loan and Security Agreement is hereinafter referred to as the
Loan Agreement"); and
WHEREAS, Borrower desires to amend and modify certain provisions of the
Loan Agreement and, subject to the terms hereof, Agent and Lenders are
willing to agree to such amendments and modifications;
NOW THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein contained, and any extension of credit heretofore, now
or hereafter made by Agent and Lenders to Borrowers, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms used herein without definition
shall have the meaning given to them in the Loan Agreement
2. Amended Definition. The definition of the "Consolidated EBITDA"
contained in Exhibit 8.3 of the Loan Agreement is hereby deleted and the
following is inserted in its stead:
"Consolidated EBITDA - for any period, Consolidated Net Income for
such period plus without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Money
Borrowed (including the Loans), (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited
to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income for such period, non-cash losses on sales of assets outside of
the ordinary course of business), (f) any other non-cash charges
(including, without limitation, the amount of any non-cash deduction to
Consolidated Net Income as a result of any grant to members of
management of any capital stock of the Borrower), and (g) to the extent
not included in item (e) above, charges or expenses incurred as a
result of plant or facility closures, and minus to the extent included
in the statement of such Consolidated Net Income for such period, the
sum of (a) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business), and
(b) any other non-cash income, all as determined on a consolidated
basis."
3. Capital Expenditures. Section 8.2.8 of the Loam Agreement is
hereby deleted and the following is inserted in its stead;
"8.2.8 Capital Expenditures. Make Capital Expenditures
(including, without limitation, by way of capitalized leases except as
otherwise provided below) which, in the aggregate, as to Borrower and
its Subsidiaries, exceed Nine Million Dollars ($9,000,000) during any
fiscal year of Borrower. Capital leases entered into in fiscal years
2003 and 2004 in an aggregate amount not to exceed $5,500,000 incurred
in connection with the renegotiaton or extension of operating leases
shall not be included within capitalized leases for the purposes of
this Section 8.2.8."
4. Execution in Counterparts. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5. Continuing Effect. Except as otherwise specifically set out herein,
the provisions of the Loan Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, this First Amendment has been duly executed as of
the day and year specified at the beginning hereof.
HOME PRODUCTS INTERNATIONAL -
HOME PRODUCTS, INC., ("Borrower")
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: EVP & CFO
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FLEET CAPITAL CORPORATION,
("Agent" and a "Lender")
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: SVP
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