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]


 

















 


	
   

  	
  COMMERCIAL PROMISSORY NOTE

  (REFERENCE RATE)

  



 


	
  Debtor Name

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Crocs, Inc., a
  Delaware Corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Debtor Address

  	
  Office

  	
  Loan Number

  
	
   

  	
  40061

  	
  163-151-024-2

  
	
  6328 Monarch Park Place

  	
   

  	
   

  
	
  Niwot, CO 80503

  	
  Maturity Date

  	
  Amount

  
	
   

  	
  September 30, 2009

  	
  $19,800,000.00

  



 


	
  $19,800,000.00

  	
   

  	
  Date March 31, 2009

  



 


FOR VALUE
RECEIVED, the
undersigned (“Debtor”) promises to pay to the order of UNION BANK OF CALIFORNIA, N.A. (“Bank”), as indicated below, the
principal sum of NINETEEN MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS
($19,800,000.00), together with interest on the balance of such principal from
time to time outstanding at the per annum rate or rates and at the times set
forth below.


 


At any time prior to the
maturity of this note, subject to the provisions of paragraph 5, below, Debtor
may repay but not reborrow hereunder so long as the total outstanding at any
one time does not exceed the maximum amount then available to be borrowed
hereunder as set forth above or in paragraph 1, below.


 


1.             PAYMENTS. Debtor shall pay (x) accrued but
unpaid interest on the first day of each month (commencing April 1, 2009),
and (y) principal payments sufficient to reduce the outstanding principal
balance to (i) $18,800,000.00 by April 30, 2009, (ii) $17,800,000.00
by June 1, 2009, (iii) $14,800,000.00 by July 1, 2009, (iv) $11,800,000.00
by July 31, 2009, and (v) $7,800,000.00 by August 31, 2009.
Debtor shall pay all remaining principal and accrued but unpaid interest on September 30,
2009 (the “Termination Date”). Should interest not be paid when due it shall
become part of the principal and bear interest as herein provided. If any
interest rate defined in this note ceases to be available for any reason, then
said interest rate shall be replaced by the rate then offered by Bank which, in
the sole discretion of Bank, most closely approximates the unavailable rate.


 


Debtor shall pay all amounts
due under this note in lawful money of the United States to Bank at P.O. Box
30115, Los Angeles, CA 90030-0115, or at such other office as may be designated
by Bank from time to time.


 


2.                                      INTEREST RATE.


 


(a)           VARIABLE INTEREST RATE. All principal outstanding hereunder shall
bear interest at the per annum rates set forth on Annex I attached hereto.


 


(b)           INTEREST RATE COMPUTATIONS. All computations of interest under this
note shall be made on the basis of a year of 360 days for actual days elapsed.


 


3.             LATE PAYMENTS. If any payment required by the terms of
this note shall remain unpaid ten days after same is due, at the option of
Bank, Debtor shall pay a fee of $100 to Bank.


 

















 


4.             INTEREST RATE FOLLOWING DEFAULT. In the event of default, at the option of
Bank, and, to the extent permitted by law. interest shall be payable on the
outstanding principal under this note at a per annum rate equal to five percent
(5%) in excess of the interest rate specified in paragraph 2 (b), above,
calculated from the date of default until all amounts payable under this note
are paid in full.


 


5.             PREPAYMENT.


 


(a)           Amounts
outstanding under this note bearing interest at a rate based on the Reference Rate
may be prepaid in whole or in part at any time, without penalty or premium.


 


(b)           All
prepayments shall include payment of accrued interest on the principal amount
so prepaid and shall be applied to payment of interest before application to
principal. A determination by Bank as to the prepayment fee amount, if any,
shall be conclusive.


 


(c)           Bank
shall provide Debtor a statement of the amount payable on account of
prepayment.


 


DEBTOR INITIAL HERE:


 


6.             DEFAULT AND ACCELERATION OF TIME
FOR PAYMENT. Default
shall include, but not be limited to, any of the following: (a) the failure
of Debtor to make any payment required under this note when due; (b) any
breach, misrepresentation or other default by Debtor, any guarantor, co-maker,
endorser, or any person or entity other than Debtor providing security for this
note (hereinafter individually and collectively referred to as the “Obligor”)
under any security agreement, guaranty or other agreement between Bank and any
Obligor; (c) the insolvency of any Obligor or the failure of any Obligor
generally to pay such Obligor’s debts as such debts become due; (d) the
commencement as to any Obligor of any voluntary or involuntary proceeding under
any laws relating to bankruptcy, insolvency, reorganization, arrangement, debt
adjustment or debtor relief; (e) the assignment by any Obligor for the
benefit of such Obligor’s creditors; (f) the appointment, or commencement
of any proceeding for the appointment of a receiver, trustee, custodian or
similar official for all or substantially all of any Obligor’s property; (g) the
commencement of any proceeding for the dissolution or liquidation of any
Obligor; (h) the termination of existence or death of any Obligor; (i) the
revocation of any guaranty or subordination agreement given in connection with
this note; (j) the failure of any Obligor to comply with any order,
judgment, injunction, decree, writ or demand of any court or other public
authority; (k) the filing or recording against any Obligor, or the
property of any Obligor, of any notice of levy, notice to withhold, or other
legal process for taxes other than property taxes; (1) the default by any
Obligor personally liable for amounts owed hereunder on any obligation
concerning the borrowing of money; (m) the issuance against any Obligor,
or the property of any Obligor, of any writ of attachment, execution, or other
judicial lien; or (n) the deterioration of the financial condition of any
Obligor which results in Bank deeming itself, in good faith, insecure. Upon the
occurrence of any such default, Bank, in its discretion, may cease to advance
funds hereunder and may declare all obligations under this note immediately due
and payable; however, upon the occurrence of an event of default under d, e, f,
or g, all principal and interest shall automatically become immediately due and
payable.


 


7.             ADDITIONAL AGREEMENTS OF DEBTOR. If any amounts owing under this note are
not paid when due, Debtor promises to pay all costs and expenses, including
reasonable attorneys’ fees (including the allocated costs of Bank’s in-house
counsel and legal staff) incurred by Bank in the negotiation, documentation and
modification of this note and all related documents and in the collection


 


2

















 


or enforcement of any amount
outstanding hereunder. Debtor and any Obligor, for the maximum period of time
and the full extent permitted by law, (a) waive diligence, presentment,
demand, notice of nonpayment, protest, notice of protest, and notice of every
kind; (b) waive the right to assert the defense of any statute of
limitations to any debt or obligation hereunder; and (c) consent to
renewals and extensions of time for the payment of any amounts due under this
note. If this note is signed by more than one party, the term “Debtor” includes
each of the undersigned and any successors in interest thereof; all of whose
liability shall be joint and several. Any married person who signs this note
agrees that recourse may be had against the separate property of that person
for any obligations hereunder. The receipt of any check or other item of payment
by Bank, at its option, shall not be considered a payment on account until such
check or other item of payment is honored when presented for payment at the
drawee bank. Bank may delay the credit of such payment based upon Bank’s
schedule of funds availability, and interest under this note shall accrue until
the funds are deemed collected. In any action brought under or arising out of
this note, Debtor and any Obligor, including their successors and assigns,
hereby consent to the jurisdiction of any competent court within the State of
California, as provided in any alternative dispute resolution agreement
executed between Debtor and Bank, and consent to service of process by any
means authorized by said state s law. The term “Bank” includes, without limitation,
any holder of this note. This note shall be construed in accordance with and
governed by the laws of the State of California. This note hereby incorporates
any alternative dispute resolution agreement previously, concurrently or
hereafter executed between Debtor and Bank.


 


8.             DEFINITIONS. As used herein, the following terms shall
have the meanings respectively set forth below: “Business Day” means a day on which Bank is open for business
for the funding of corporate loans. “Reference
Rate” means the rate announced by Bank from time to time at its
corporate headquarters as its Reference Rate. The Reference Rate is an index
rate determined by Bank from time to time as a means of pricing certain
extensions of credit and is neither directly tied to any external rate of
interest or index nor necessarily the lowest rate of interest charged by Bank
at any given time.


 


9.             SUPERSESSION OF PRIOR NOTE. This note supersedes and replaces that
certain Commercial Promissory Note (Base Rate) in a principal amount not to
exceed $22,421,500.00, dated February 13, 2009, executed by Debtor to the
order of Bank.


 


DEBTOR:


 


Crocs, Inc., a Delaware
corporation


 


 


	
  By:

  	
  /s/ Russ Hammer

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  



 


3

















 


	
   

  	
  ANNEX I

  



 


All
principal outstanding hereunder shall bear interest at the rates corresponding
to the principal balances (and levels) set forth below:


 


	
  Level

  	
   

  	
  Outstanding principal balance

  	
   

  	
  Per annum interest rate

  
	
  I

  	
   

  	
  3 $18,000,000

  	
  8.00% above the Reference Rate

  
	
  II

  	
   

  	
  < $18,000,000

  	
   

  	
  7.00% above the Reference Rate

  
	
  III

  	
   

  	
  < $15,000,000

  	
   

  	
  6.00% above the Reference Rate

  
	
  IV

  	
   

  	
  < $12,000,000

  	
   

  	
  5.00% above the Reference Rate

  



 


provided, however, that (x) no
decrease in interest rate will take effect unless Borrower s borrowing base is
equal to or greater than $25,000,000 as determined by Bank in its reasonable
discretion with reference to the most recent weekly borrowing base certificate
delivered to Bank by Borrower, and (y) if at any time Bank reasonably
determines that Borrower s borrowing base is less than $25,000,000, the
effective interest rate will revert to the preceding interest rate level
through such time as Bank reasonably determines Borrower’s borrowing base again
equals or is greater than $25,000,000.