Exhibit 10.1
AMENDMENT NO. 10 TO LOAN
AGREEMENT
THIS AMENDMENT NO. 10 TO LOAN
AGREEMENT (this “Amendment”), dated and effective as of
March 31, 2009, is entered into by and between Union Bank,
N.A. (formerly known as Union Bank of California, N. A.;
“Bank”) and Crocs, Inc., a Delaware corporation
(“Borrower”), with reference to the following
facts:
RECITALS
A. Borrower and Bank are parties to
that certain Loan Agreement, dated as of May 8, 2007 (as
heretofore amended, the “Loan Agreement”), pursuant to
which Bank has provided Borrower with certain credit
facilities.
B. Borrower has requested that Bank
amend the Loan Agreement as set forth below.
C. Bank is willing to grant such
amendment on the terms and conditions set forth below.
NOW THEREFORE, in consideration of
the amendment and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties
hereby agree as follows:
1. Initially capitalized terms used
in this Amendment (including without limitation in the recitals
hereto) without definition shall have the respective meanings given
thereto in the Loan Agreement.
2. The sentence in
Section 1.1.1 of the Loan Agreement which reads as follows:
The Committed Loan shall be repaid on or before April 2, 2009,
at which time all unpaid principal and interest on the Committed
Loan shall be due and payable, hereby is amended and restated in
its entirety to read as follows: “The Committed Loan shall be
repaid on or before September 30, 2009, at which time all
unpaid principal and interest on the Committed Loan shall be due
and payable.”
3. Notwithstanding anything in the
Loan Agreement to the contrary, the amount of the Committed Loan
shall be reduced as follows:
|
Date
|
|
Amount of Committed Loan
|
|
Date of this Amendment
|
|
$
|
19,800,000
|
|
4/30/09
|
|
$
|
18,800,000
|
|
6/1/09
|
|
$
|
17,800,000
|
|
7/1/09
|
|
$
|
14,800,000
|
|
7/31/09
|
|
$
|
11,800,000
|
|
8/31/09
|
|
$
|
7,800,000
|
4. Section 4.5 of the Loan
Agreement hereby is amended by the addition of a new Subsection
4.5(ii) to read as follows:
“(ii) Within forty-five
(45) days after the end of each calendar month commencing with the
month ending April 30, 2009, Borrower’s consolidated and
consolidating financial statements including, but not limited to,
the balance sheet, income statement and inventory turn
information.”
5.
A new Section 4.14 hereby is added to the Loan Agreement to
read as follows:
“4.14 Review of Financial
Statements and Current Assets . Anytime after June 30, 2009, upon the
request of Bank, Borrower agrees to engage, at its own expense, an
advisor or advisors chosen by Bank to perform a review of
Borrower’s projected financial statements, including its
projected cash flow, and a review and valuation of Borrower’s
current assets.”
6.
The effectiveness of this Amendment shall be subject to the prior
satisfaction of each of the following conditions:
(a)
Bank shall have received an original of this Amendment, duly
executed by Borrower;
(b)
Borrower shall have executed and delivered to Bank the Commercial
Promissory Note (Reference Rate) and such other documents and
instruments as Bank may reasonably request;
(c)
Borrower shall make a principal payment to Bank in an amount equal
to $1,621,500; and
(d)
Borrower shall have paid Bank all legal fees and expenses incurred
in connection with this Amendment, which may be debited from any of
Borrower’s accounts with Bank.
7.
All representations and warranties made in the Loan Agreement or in
any other documents or instruments relating thereto, including
without limitation any Loan Documents furnished in connection with
this Amendment, after giving effect to this Amendment, shall
survive the execution and delivery of this Amendment and the other
Loan Documents, and nothing shall affect the representations and
warranties or the right of Bank to rely thereon.
8.
Borrower is not aware of any events which now constitute, or with
the passage of time or the giving of notice, or both, would
constitute, an Event of Default under the Loan Agreement as amended
by this Amendment.
9.
The Loan Agreement, each of the other Loan Documents, and any and
all other agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms of this Amendment, or
pursuant to the terms of the Loan Agreement as amended hereby, are
hereby amended so that any reference therein to the Loan Agreement
shall mean a reference to the Loan Agreement as amended
hereby.
10.
The Loan Agreement and the other Loan Documents remain in full
force and effect and Borrower hereby ratifies and confirms its
agreements and covenants contained therein. Borrower hereby
confirms that, after giving effect to this Amendment, no Event of
Default exists as of the date hereof.
11.
Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement and the effect thereof
shall be confined to the provision so held to be invalid or
unenforceable.
12.
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT
HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN
THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
13.
This Amendment is binding upon and shall inure to the benefit of
Bank and Borrower and their respective successors and assigns;
provided that Borrower may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of the
Bank.
14.
This Amendment may be executed in one or more counterparts, each of
which when so executed shall be deemed to be an original, but all
of which when taken together shall constitute one and the same
instrument.
15.
THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN,
REPRESENTS THE FINAL AGREEMENT BETWEEN BANK AND BORROWER AS TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN BANK AND
BORROWER.
[ Balance of
Page Intentionally Left Blank ]
IN WITNESS WHEREOF, the parties
hereto have entered into this Amendment by their respective duly
authorized officers as of the date first above written.
CROCS, INC.
|
By:
|
/s/ Russ Hammer
|
|
|
Printed Name:
|
Russ Hammer
|
|
|
Title:
|
Chief Financial Officer
|
|
|
|
|
|
|
UNION BANK, N. A.
|
|
|
|
|
|
By:
|
/s/ Michael J. Campbell
|
|
|
Printed Name:
|
Michael J. Campbell
|
|
|
Title:
|
Vice President
|
|
[ Signature Page to
Amendment No. 10 to Loan Agreement ]
|
Acknowledged and Agreed:
|
|
|
|
JPMORGAN CHASE BANK, NA
|
|
|
|
|
|
By:
|
/s/ Brian McDougal
|
|
|
Printed Name:
|
Brian McDougal
|
|
|
Title:
|
Vice President
|
|
[ Acknowledgement Page to
Amendment No. 10 to Loan Agreement ]
