Exhibit 10.1


 


JOINDER AND FIRST AMENDMENT TO CREDIT AGREEMENT


 


This Joinder and First Amendment to Credit Agreement
(this “First Amendment”) is made as of this 28th day of January, 2009 by
and among:


 


TUESDAY MORNING, INC., a
Texas corporation, for itself and as agent (in such capacity, the “Lead
Borrower”) for the other Borrowers party hereto;


 


the BORROWERS party hereto;


 


the GUARANTORS party hereto;


 


the LENDERS party hereto;
and


 


BANK OF AMERICA, N.A., as Administrative
Agent, Collateral Agent, Swing Line Lender and L/C Issuer;


 


in consideration of the
mutual covenants herein contained and benefits to be derived herefrom.


 


W I T N E S S E T H:


 


WHEREAS, reference is made to that certain Credit
Agreement, dated as of December 15, 2008 (as amended, amended and
restated, modified, supplemented or restated and in effect from time to time,
the “Credit Agreement”), by and among (i) the Borrowers, (ii) the
Guarantors, (iii) certain of the Lenders (the “Existing Lenders”),
and (iv) Bank of America, N.A., as Administrative Agent, Collateral Agent,
Swing Line Lender and L/C Issuer;


 


WHEREAS, pursuant to Section 2.15(f) of the
Credit Agreement, the Lead Borrower has requested a Commitment Increase in an
amount of up to $50,000,000;


 


WHEREAS, the Administrative Agent and BAS, in
consultation with the Lead Borrower, have arranged for Regions Bank (the “Additional
Commitment Lender”) to become a lender under the Credit Agreement and to
issue a commitment in an amount equal to $30,000,000;


 


WHEREAS, the Borrowers and the Additional Commitment
Lender have requested that the Administrative Agent and the Existing Lenders
amend certain provisions of the Credit Agreement; and


 


WHEREAS, the Administrative Agent and the Existing
Lenders have agreed to amend certain provisions of the Credit Agreement on the
terms and conditions set forth herein.


 


NOW, THEREFORE, it is hereby agreed as follows:


 

















 


1                                         Definitions.  All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Credit Agreement.


 


2                                         Joinder to Loan
Documents.  Effective
as of the date of this First Amendment, the Additional Commitment Lender hereby
acknowledges that it has received and reviewed a copy of the Credit Agreement
and the other Loan Documents, and hereby:


 


.1                                      joins in the
execution of, and becomes a party to, the Credit Agreement and the other Loan
Documents as a Lender thereunder, as indicated with its signature below;


 


.2                                      covenants and
agrees to be bound by all covenants, agreements, liabilities and
acknowledgments of a Lender under the Credit Agreement and the other Loan
Documents as of the date hereof (other than covenants, agreements, liabilities
and acknowledgments that relate solely to an earlier date), in each case, with
the same force and effect as if the Additional Commitment Lender was a
signatory to the Credit Agreement and the other Loan Documents and was
expressly named as a Lender therein; and


 


.3                                      to the extent
of its Commitment (as set forth opposite the Additional Commitment Lender’s
name on Schedule 2.01 attached hereto), assumes and agrees to perform
all applicable duties and obligations of the Existing Lenders under the Credit
Agreement and the other Loan Documents.


 


3                                         Amendments to Article I.  The provisions of Article I of the
Credit Agreement are hereby amended as follows:


 


.1                                      The definitions
of the following terms in Article I of the Credit Agreement are hereby
amended as follows:


 


.1                                      The second
sentence of the definition of “Cash Dominion Event” is hereby amended by
deleting therefrom the following text: “, at the Administrative Agent’s option,”.


 


.2                                      The second
sentence of the definition of “Covenant Compliance Event” is hereby amended by
deleting therefrom the following text: “at the Administrative Agent’s option”.


 

















 


.3                                      Clause (d) of
the definition of “Permitted Overadvance” is hereby amended by deleting
therefrom the reference to “ten percent (10%)” and replacing it in its entirety
with a reference to “five percent (5%)”.


 


.2                                      The definition
of “Consent” is hereby deleted in its entirety and any and all references to
the defined term “Consent” in the Credit Agreement are hereby deleted and
replaced with the term “consent”.


 


4                                         Amendments to Article IX.  The provisions of Section 9.16 of the
Credit Agreement are hereby amended as follows:


 


.1                                      The first
sentence of Section 9.16(b) of the Credit Agreement is hereby deleted
in its entirety and the following substituted in its stead:


 


“(b)         The
non-Defaulting Lenders shall also have the right, but not the obligation, in
their respective, sole and absolute discretion, to cause the termination and
assignment, without any further action by the Defaulting Lender for no cash
consideration (pro  rata, based on the respective Commitments of
those Lenders electing to exercise such right), of the Defaulting Lender’s Commitment
to fund future Loans; provided  that such Defaulting Lender shall
be paid the Obligations then owing such Defaulting Lender with respect to any
funded portion of its Commitment which is the subject of an assignment
hereunder.”


 


5                                         Amendments to Article X.  The provisions of Article X of the
Credit Agreement are hereby amended as follows:


 


.1                                      Section 10.01(e) of
the Credit Agreement is hereby deleted in its entirety and the following
substituted in its stead:


 


“(e)         change
Section 2.13 or Section 8.03 in a manner that would
alter (i) the pro rata sharing of payments required thereby or (ii) the
order in which payments are to be applied thereunder without the written
Consent of each Lender;”


 


.2                                      The provisions
of Section 10.01 are hereby amended by deleting the word “and” at the end
of clause (m), deleting the semicolon at the end of clause (n) and
substituting “; and” therefor and adding the following new clause (o):


 

















 


“(o)         change the definition
of the terms “Accelerated Borrowing Base Delivery Event” or “Cash Dominion
Event” without the written Consent of each Lender;”


 


.3                                      Section 10.13
of the Credit Agreement is hereby revised by deleting the last paragraph
thereof in its entirety and substituting the following in its stead:


 


“Any Lender being replaced pursuant to this Section 10.13
shall (i) execute and deliver an Assignment and Assumption with respect to
such Lender’s Commitment and outstanding Loans and participations in L/C
Obligations and (ii) deliver any Notes evidencing such Loans to the Lead Borrower
or the Administrative Agent.”


 


6                                         Amendment to
Schedule 2.01.  Schedule
2.01 to the Credit Agreement is hereby deleted in its entirety and replaced
with Schedule 2.01 attached hereto.


 


7                                         Ratification of
Loan Documents.  Except as
otherwise expressly provided herein, all terms and conditions of the Credit
Agreement and the other Loan Documents remain in full force and effect.  The Loan Parties hereby ratify, confirm, and
reaffirm that all representations and warranties of the Loan Parties contained
in the Credit Agreement or any other Loan Document are true and correct in all
material respects on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date.


 


8                                         Conditions to
Effectiveness.  This First
Amendment shall not be effective until each of the following conditions
precedent have been fulfilled to the reasonable satisfaction of the Administrative
Agent:


 


.1                                      The
Administrative Agent shall have received counterparts of this First Amendment
duly executed and delivered by each of the parties hereto.


 


.2                                      The
Administrative Agent shall have received counterparts of the supplement to the
Fee Letter dated as of even date herewith duly executed by each of the parties
thereto.


 

















 


.3                                      The
Administrative Agent shall have received a Note executed by the Borrowers in
favor of the Additional Commitment Lender.


 


.4                                      The Additional
Commitment Lender shall have received counterparts of the Letter Regarding
Treasury Management dated as of even date herewith duly executed by each of the
parties thereto.


 


.5                                      All corporate
and shareholder action on the part of the Loan Parties necessary for the valid
execution, delivery and performance by the Loan Parties of this First Amendment
shall have been duly and effectively taken and evidence thereof reasonably
satisfactory to the Administrative Agent shall have been provided to the
Administrative Agent.


 


.6                                      The Loan
Parties shall have paid to the Administrative Agent, for the account of the
Additional Commitment Lender, an upfront fee (the “Regions Upfront Fee”)
in the amount set forth on Schedule I hereto.  The Regions Upfront Fee shall be fully earned
and paid by the Loan Parties to the Administrative Agent in full on the
effective date of this First Amendment. 
The Regions Upfront Fee shall not be subject to refund or rebate under
any circumstances.


 


.7                                      The Loan
Parties shall have paid to the Administrative Agent, for the account of Wells
Fargo Retail Finance, LLC, an upfront fee (the “Wells Upfront Fee”) in
the amount set forth on Schedule I hereto.  The Wells Upfront Fee shall be fully earned
and paid by the Loan Parties to the Administrative Agent in full on the
effective date of this First Amendment. 
The Wells Upfront Fee shall not be subject to refund or rebate under any
circumstances.


 


.8                                      The Loan
Parties shall have paid to the Administrative Agent all fees required pursuant
to the terms and conditions of the supplement to the Fee Letter.


 


.9                                      The Loan
Parties shall have paid in full all reasonable and documented costs and
expenses of the Agents (including, without limitation, reasonable attorneys’
fees) in connection with the preparation, negotiation, execution and delivery
of this First Amendment and related documents.


 


.10                               After giving
effect to this First Amendment, no Default or Event of Default shall have
occurred and be continuing.


 

















 


9                                         Miscellaneous.


 


.1                                      This First
Amendment may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument.  Delivery of an executed counterpart of a signature
page to this First Amendment by telecopy or other electronic transmission
shall be effective as delivery of a manually executed counterpart of this First
Amendment.


 


.2                                      This First
Amendment expresses the entire understanding of the parties with respect to the
transactions contemplated hereby.  No
prior negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.


 


.3                                      Any
determination that any provision of this First Amendment or any application
hereof is invalid, illegal or unenforceable in any respect and in any instance
shall not effect the validity, legality, or enforceability of such provision in
any other instance, or the validity, legality or enforceability of any other
provisions of this First Amendment.


 


.4                                      The Loan
Parties represent and warrant that they have consulted with independent legal
counsel of their selection in connection with this First Amendment and are not
relying on any representations or warranties of the Agents or the Lenders or
their counsel in entering into this First Amendment.


 


.5                                      The
Administrative Agent, the Lenders and the Loan Parties hereby ratify, confirm,
and reaffirm that, after giving effect to the $30,000,000 Commitment Increase
of the Additional Commitment Lender, the Lead Borrower may, from time to time,
request further Commitment Increases in accordance with the terms of Section 2.15
of the Credit Agreement in an amount (for all such requests) not exceeding
$70,000,000 in the aggregate.  Except as
otherwise expressly provided herein, all terms and conditions of Section 2.15
of the Credit Agreement remain in full force and effect; provided  that
clause (f) of Section 2.15 of the Credit Agreement is hereby deleted
in its entirety as of the effective date of this First Amendment.


 


[SIGNATURE PAGES
FOLLOW]


 

















 


IN WITNESS WHEREOF, the parties have hereunto caused
this First Amendment to be executed and their seals to be hereto affixed as of
the date first above written.


 


	
   

  	
  TUESDAY MORNING, INC.,
  as Lead Borrower and as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Financial Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TUESDAY MORNING
  PARTNERS, LTD., as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Days of the
  Week, Inc., its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Financial Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TUESDAY MORNING
  CORPORATION, as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Financial Officer, Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TMI HOLDINGS, INC., as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Vice President,
  Secretary and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  FRIDAY MORNING, INC.,
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Financial Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DAYS OF THE WEEK, INC.,
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Executive Vice
  President, Chief Financial Officer and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NIGHTS OF THE WEEK,
  INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Stephanie Bowman

  
	
   

  	
  Name:

  	
  Stephanie Bowman

  
	
   

  	
  Title:

  	
  Vice President,
  Secretary and Treasurer

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,
  as Administrative Agent, Collateral Agent, L/C Issuer and Swingline Lender and
  as an Existing Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Stephen
  J. Garvin

  
	
   

  	
  Name:

  	
   Stephen J. Garvin

  
	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO RETAIL
  FINANCE, LLC,

  
	
   

  	
  as Joint Lead Arranger,
  Joint Bookrunner and Syndication Agent and as an Existing Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Adam B.
  Davis

  
	
   

  	
  Name: 

  	
  Adam B. Davis

  
	
   

  	
  Title: 

  	
  Assistant Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  REGIONS BANK, as the
  Additional Commitment Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Kevin
  R. Rogers

  
	
   

  	
  Name: 

  	
  Kevin R. Rogers

  
	
   

  	
  Title: 

  	
  Attorney-in-fact