Exhibit 10.28(h)
EXECUTION COPY
SIXTH AMENDMENT 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 AND
LASALLE BANK NATIONAL ASSOCIATION, AS LENDERS (THE "LENDERS"),
AND AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, AS AGENT (THE "AGENT")
This Sixth Amendment to the Agreement ("Amendment" or "Sixth
Amendment") is entered into as of December 27, 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 to amend the
Agreement as 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.
a. Section 1.1 of the Agreement is amended as follows:
(i) The definition of "Debt Service Coverage Ratio" is amended
in its entirety by the substitution therefor of the following definition of
"Debt Coverage Ratio":
"Debt Coverage Ratio" for any period means the ratio of (a) Net Income
plus (i) Interest Expenses, and (ii) depreciation and amortization, less
(i) internally funded Capital Expenditures, and (ii) dividends paid, plus
(or minus) the loss (or gain) on extraordinary or non-recurring items
including gain on sale of assets, plus (or minus) the increase (or
decrease) in LIFO reserve to (b) Interest Expense plus required principal
payments plus payments under Capitalized Lease Obligations.
b. Section 6.10.3 of the Agreement is amended in its entirety to state
the following:
6.10.3 Debt Coverage Ratio. The Borrower will maintain a Debt
Coverage Ratio, at all times of not less than 1.00 to 1.00 for each
trailing twelve month period preceding the quarterly testing date,
provided that the first test hereunder of such ratio shall be on June
30, 2002 at which time such ratio will be tested only for the
Borrower's second fiscal quarter of 2002, and thereafter on September
30, 2002 and December 31, 2002 such ratio shall be tested on 2002 year
to date performance from April 1, 2002.
c. Section 6.10.5 of the Agreement and the definition of "Free Cash
Flow" in Section 1.1 of the Agreement are deleted.
d. A new Section 6.10.6 is added to the Agreement which states the
following:
6.10.6 EBITDA. The Borrower will maintain EBITDA for its fiscal
quarter ending March 31, 2002 of not less than $172,000.
Section 2. 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 3. 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;
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b. The Agent shall have received payment of the fees provided in
Section 6 of this Amendment;
c. The Agent shall have received board resolutions from the Borrower
authorizing the execution of this Amendment; and
d. All legal matters incident to this Amendment shall be reasonably
satisfactory to Xxxx, Xxxxxx & Xxxxxxxxx, counsel for the Agent.
Section 4. 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.
Section 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Section 6. 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.
Section 7. 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.
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Section 8. 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.
BORROWER:
HEADS & THREADS INTERNATIONAL LLC, a
Delaware limited liability company
BY: /s/ Xxxxxxx Xxxxx
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ITS: Executive Vice President
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LENDERS:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
ITS: Assistant Vice President
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LASALLE BANK NATIONAL ASSOCIATION
BY: /s/ Xxxxx X. Xxxxx
--------------------------------------
ITS: Assistant Vice President
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AGENT:
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
BY: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
ITS: Assistant Vice President
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