Exhibit 10.1
THIRD AMENDMENT AND AGREEMENT
This THIRD AMENDMENT
AND AGREEMENT, dated as of August 18, 2009 (this “ Third
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 and June 17, 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 “September 30, 2009” with “October 31,
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 October 31, 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 Third
Amendment and Agreement, (b) this Third Amendment and Agreement has
been duly and validly authorized by all necessary action by such
party, and (c) this Third 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.
