Exhibit 10.1
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as
of July 26, 2005, is entered into by and among Xxxxxxx Fabrics, Inc., a Delaware
corporation ("Parent"), HF Merchandising, Inc., a Delaware corporation
("Merchandising"), Xxxxxxx Fabrics of MI, Inc., a Delaware corporation ("Fabrics
MI"), xxxxxxxxxxxxxx.xxx, Inc., a Delaware corporation ("Xxxxxxx.xxx"), Xxxxxxx
Fabrics, LLC, a Delaware limited liability company ("Fabrics LLC", and together
with Parent, Merchandising, Fabrics MI and Xxxxxxx.xxx, each individually a
"Borrower" and collectively, "Borrowers"), HF Enterprises, Inc., a Delaware
corporation ("Enterprises"), HF Resources, Inc., a Delaware corporation
("Resources", and together with Enterprises, each individually a "Guarantor" and
collectively, "Guarantors"), the financial institutions from time to time party
to the Loan Agreement (as hereinafter defined) as lenders (each individually, a
"Lender" and collectively, "Lenders"), and Wachovia Bank, National Association,
a national banking association, as agent for Lenders (in such capacity,
"Agent").
W I T N E S S E T H
WHEREAS, Agent and Lenders have entered into financing arrangements with
Borrowers and Guarantors pursuant to which Agent and Lenders have made and may
make loans and advances and provide other financial accommodations to Borrowers
as set forth in the Loan and Security Agreement, dated June 29, 2005, by and
among Agent, Lenders, Borrowers and Guarantors (as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and other agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto, together with this Amendment (all of the
foregoing, including the Loan Agreement, as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced,
being collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
make certain amendments to the Loan Agreement, and Agent and Lenders are willing
to agree to such amendments, subject to the terms and conditions contained
herein; and
WHEREAS, the parties hereto desire to enter into this Amendment to evidence
and effectuate such amendments, subject to the terms and conditions and to the
extent set forth herein;
NOW THEREFORE, in consideration of the foregoing, and the respective
agreements and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) Amendments to Definition of Specified Amount. The definition of
"Specified Amount" set forth in Section 1.121 of the Loan Agreement is hereby
amended by deleting each reference to "Agent" and replacing it with "Agent and
each Lender".
(b) Interpretation. All capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement and the other Financing
Agreements, unless otherwise defined herein.
2. Conditions Precedent. The effectiveness of the terms and provisions
contained herein shall be subject to the following conditions precedent:
(a) Agent shall have received, in form and substance satisfactory to Agent,
an original of this Amendment, duly authorized, executed and delivered by
Borrowers, Guarantors and Lenders; and
(b) as of the date hereof, no Default or Event of Default shall exist or
have occurred and be continuing.
3. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrowers and Guarantors to Agent and Lenders pursuant to the other Financing
Agreements, Borrowers and Guarantors hereby represent, warrant and covenant with
and to Agent and Lenders as follows (which representations, warranties and
covenants are continuing and shall survive the execution and delivery hereof and
shall be incorporated into and made a part of the Financing Agreements):
(a) This Amendment has been duly executed and delivered by Borrowers and
Guarantors and is in full force and effect as of the date hereof, and the
agreements and obligations of Borrowers and Guarantors contained herein
constitute legal, valid and binding obligations of Borrowers and Guarantors
enforceable against Borrowers and Guarantors in accordance with their respective
terms.
(b) As of the date hereof, no Default or Event of Default has occurred or
is continuing.
4. Effect of this Agreement. Except as modified pursuant hereto, no other
changes or modifications to the Loan Agreement or the other Financing Agreements
are intended or implied and in all other respects the Financing Agreements are
hereby specifically ratified and confirmed by the parties hereto as of the
effective date hereof. This Amendment represents the entire agreement and
understanding concerning the subject matter hereof between the parties hereto,
and supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written. To the
extent of any conflict between the terms of this Amendment and the other
Financing Agreements, the terms of this Amendment shall control. The Loan
Agreement and this Amendment shall be read and construed as one agreement.
5. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
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with the laws of the State of New York without regard to principals of conflicts
of laws, but excluding any rule of law that would cause the application of the
law of any jurisdiction other that the laws of the State of New York.
6. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
7. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
reasonably desirable to effectuate the provisions and purposes of this
Amendment.
8. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Amendment may be executed and delivered by telecopier
or other electronic method of transmission with the same force and effect as if
it were a manually executed and delivered counterpart.
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IN WITNESS WHEREOF, the parties have caused these presents to be duly
executed as of the day and year first above written.
BORROWERS
---------
XXXXXXX FABRICS, INC.
By: ___________________________
Title:__________________________
HF MERCHANDISING, INC.
By: ___________________________
Title:__________________________
XXXXXXX FABRICS OF MI, INC.
By: ___________________________
Title:__________________________
XXXXXXXXXXXXXX.XXX, INC.
By: ___________________________
Title:__________________________
XXXXXXX FABRICS, LLC
By: ___________________________
Title:__________________________
GUARANTORS
----------
HF ENTERPRISES, INC.
By: ___________________________
Title:__________________________
HF RESOURCES, INC.
By: ___________________________
Title:__________________________
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AGENT AND LENDERS
-----------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent and as Lender
By: ___________________________
Title:__________________________
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By: ___________________________
Title:__________________________
