Exhibit 10.1
FIRST AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is entered into as of this 1/st/ day of November,
2002 among WILSONS LEATHER HOLDINGS INC., a Minnesota corporation ("Borrower"),
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Lender, Swing
Line Lender and as Agent ("Agent"), the Credit Parties signatory hereto and the
Lenders signatory hereto. Unless otherwise specified herein, capitalized terms
used in this Amendment shall have the meanings ascribed to them by the Credit
Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower, certain Credit Parties, Agent and Lenders have
entered into that certain Fourth Amended and Restated Credit Agreement dated as
of April 23, 2002 (as amended, supplemented, restated or otherwise modified from
time to time, the "Credit Agreement"); and
WHEREAS, Borrower, the Lenders and Agent wish to amend the Credit
Agreement, as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1 AMENDMENTS TO THE CREDIT AGREEMENT.
Subject to the satisfaction of the conditions precedent set forth
in Section 3 hereof, the parties hereto hereby agree to amend the Credit
Agreement as follows:
(a) Section 1.1(a)(iv) of the Credit Agreement is hereby amended
by inserting, at the end of Section 1.1(a)(iv) of the Credit Agreement, a new
sentence which shall read in its entirety as follows:
"In addition, notwithstanding anything to the contrary contained
herein or otherwise, Borrower shall cause (i) the outstanding
principal balance of the Revolving Credit Advances and the Swing
Line Loan to be reduced to, and remain at, zero dollars ($0) for
the period from and including January 3, 2003 through and
including February 2, 2003 and (ii) the outstanding Letter of
Credit Obligations to be less than or equal to $25,000,000 at all
times during the period from and including January 3, 2003
through and including February 2, 2003."
(b) Section 1.1(b)(ii) of the Credit Agreement is hereby amended
by inserting the phrase "; provided, however, that on the First Amendment
Effective Date, the Borrower may
reborrow $4,800,000 of Term Loan B which was repaid on June 24, 2002 (and (i) at
all times after the First Amendment Effective Date, such reborrowed amount shall
for all purposes, constitute a portion of Term Loan B, and (ii) as of the First
Amendment Effective Date, the outstanding principal balance of the Term B Note
issued to Term Lender shall be Twenty Five Million Dollars ($25,000,000))"
immediately after the phrase "may be reborrowed" in Section 1.1(b)(ii) of the
Credit Agreement.
(c) The first sentence of Section 1.14(a) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Borrower shall, and in accordance with the Guaranties,
shall cause each other Credit Party who is a signatory thereto
to, during normal business hours, from time to time upon one (1)
Business Day's prior notice as frequently as Agent reasonably
determines to be appropriate: (a) provide Agent and any of its
officers, employees and agents access to its properties,
facilities, advisors and employees (including officers) of each
Credit Party and to the Collateral, (b) permit Agent, and any of
its officers, employees and agents, to inspect, audit and make
extracts from any Credit Party's books and records, and (c)
permit Agent, and its officers, employees and agents, to inspect,
review and evaluate the Accounts, Inventory and other Collateral
of any Credit Party; provided, that Agent will perform Collateral
audits at least two times in each Fiscal Year (three in 2003, to
be conducted in or around January, May and September) (and,
unless an Event of Default has occurred and is continuing, Agent
shall use good faith efforts to provide at least five (5)
Business Days' notice of such audit, which notice shall include a
summary of the procedures to be followed in such audit)."
(d) Section 6.8 of the Credit Agreement is hereby amended by (i)
deleting the word "and" which appears immediately prior to Section 6.8(f) of the
Credit Agreement and (ii) inserting immediately prior to the period in Section
6.8(f) a new Section 6.8(g) which shall read in its entirety as follows:
"and (g) sales of Inventory, leaseholds and other assets of
Bentley and El Portal solely to the extent (i) such sales are
consummated in accordance with, and expressly contemplated by,
the Travel Business Plan and (ii) the Travel Business Plan has
been approved in writing by the Agent and the Requisite Lenders."
(e) The following definitions which appear in Exhibit A to the
Credit Agreement are hereby amended and restated to read in their entirety as
follows:
""EBITDA" means, with respect to Ultimate Parent for any fiscal
period, without duplication, an amount equal to (a) consolidated
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net income of such Ultimate Parent for such period, determined in
accordance with GAAP, minus (b) the sum of (i) income tax
credits, (ii) interest income, (iii) gain from extraordinary
items for such period, (iv) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale,
exchange or other disposition of capital assets (including any
fixed assets, whether tangible or intangible, all inventory sold
in conjunction with the disposition of fixed assets and all
securities), and (v) any other non-cash gains that have been
added in determining consolidated net income, in each case to the
extent included in the calculation of consolidated net income of
Ultimate Parent for such period in accordance with GAAP, but
without duplication, plus (c) the sum of (i) any provision for
income taxes, (ii) interest expenses, (iii) loss from
extraordinary items for such period, (iv) depreciation and
amortization for such period, (v) amortized debt discount for
such period, (vi) the amount of any deduction to consolidated net
income as the result of any grant to any members of the
management of Ultimate Parent of any Stock, (vii) any aggregate
non-cash net loss during such period arising from the sale,
exchange or other disposition of capital assets of Bentley or El
Portal (including fixed assets, whether tangible or intangible)
and (viii) any other non-cash charges (but solely to the extent
such other non-cash charges are not greater than (A) $500,000 in
the aggregate for the two Fiscal Quarter period ending on or
about October 31, 2001, (B) $26,000,000 for the Fiscal Quarter
ending on or about February 2, 2002 and (C) $2,000,000 for any
Fiscal Quarter thereafter) that have been subtracted in
determining consolidated net income, in each case to the extent
included in the calculation of consolidated net income of
Ultimate Parent for such period in accordance with GAAP, but
without duplication. For purposes of this definition, the
following items shall be excluded in determining consolidated net
income of Ultimate Parent: (1) the income (or deficit) of any
other Person accrued prior to the date it became a Subsidiary of,
or was merged or consolidated into, Ultimate Parent or any of
Ultimate Parent's Subsidiaries; (2) the income (or deficit) of
any other Person (other than a Subsidiary) in which Ultimate
Parent has an ownership interest, except to the extent any such
income has actually been received by Ultimate Parent in the form
of cash dividends or distributions; (3) the undistributed
earnings of any Subsidiary of Ultimate Parent to the extent that
the declaration or payment of dividends or similar distributions
by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to
such Subsidiary; (4) any restoration to income of any contingency
reserve, except to the extent that provision for such
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reserve was made out of income accrued during such period; (5)
any write-up of any asset; (6) any net gain from the collection
of the proceeds of life insurance policies; (7) any net gain
arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of Ultimate
Parent, (8) in the case of a successor to Ultimate Parent by
consolidation or merger or as a transferee of its assets, any
earnings of such successor prior to such consolidation, merger or
transfer of assets, and (9) any deferred credit representing the
excess of equity in any Subsidiary of Ultimate Parent at the date
of acquisition of such Subsidiary over the cost to Ultimate
Parent of the investment in such Subsidiary.
"Peak Season" shall mean the Fiscal Months of November,
December and January of each Fiscal year; provided, however, that
solely for 2002, "Peak Season" shall exclude the period from and
including August 4, 2002 through and including December 15, 2002.
"Pre-Peak Season" shall mean the Fiscal Months of August,
September and October of each Fiscal Year; provided, however that
solely for 2002, "Pre-Peak Season" shall mean the period from and
including August 4, 2002 through and including December 15,
2002."
(f) Exhibit A to the Credit Agreement is hereby amended by
adding, in the appropriate alphabetical location, the following definitions
thereto:
"First Amendment" shall mean that certain First Amendment to
the Fourth Amended and Restated Credit Agreement entered into as
of the 1/st/ day of November, 2002 among the Borrower, the Agent,
the Credit Parties signatory thereto and the Lenders signatory
thereto.
"First Amendment Effective Date" shall mean the date on
which the conditions precedent set forth in the First Amendment
have been satisfied.
"Travel Business Plan" has the meaning set forth in Schedule
G to the Credit Agreement.
(g) Clause (c) of Schedule G to the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(c) Plan and Budgets. To Agent and Lenders, (i) as soon as
available, but not later than November 15, 2002, a draft of the
plan (the "Travel Business Plan") to be presented to the Board of
Directors of Ultimate Parent at its November meeting, setting
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forth strategic alternatives with respect to the business
conducted, as of October 30, 2002, by Bentley and El Portal (it
being understood that the Agent shall have the right to comment
on such plan, but nothing herein shall be deemed to impose a
limitation on the discretion of the Board with respect thereto),
(ii) as soon as is available, but not later than January 15,
2003, a preliminary operating plan for each of the then next
three Fiscal Years, (iii) as soon as available, but not later
than thirty (30) days after the end of each Fiscal Year, an
annual operating plan, approved by the Board of Directors of
Ultimate Parent, for the following Fiscal Year (which operating
plans, in the case of each plan provided pursuant to clause (ii)
or (iii) of this sentence, will include a statement of all of the
material assumptions on which such plans are based, will include
monthly balance sheets and budgets (other than, in the case of
the second and third year preliminary operating plans delivered
pursuant to clause (ii) of this sentence, for which annual
balance sheets and annual budgets are to be delivered) for the
relevant years and will integrate sales, gross profits, operating
expenses, operating profit, cash flow projections and borrowing
availability projections all prepared on the same basis and in
similar detail as that on which operating results are reported
(and in the case of cash flow projections, representing
management's good faith estimates of future financial performance
based on historical performance), and including plans for
personnel, Capital Expenditures and Stores) and (iv) at the time
of the delivery required by clause (ii) of this sentence, an
estimate of the Fixed Charge Coverage Ratio for the four Fiscal
Quarter Period ending on or about February 1, 2003;"
(h) Clause (g) of Schedule H is hereby amended and restated to
read in its entirety as follows:
(g) Borrower, at its own expense, shall deliver to Agent at
least twice in each year, at such times as requested by Agent
(but at least four times in calendar year 2003, on or about mid
January, April, July and October), an appraisal of Borrower's
assets as of the last day of the Fiscal Month preceding such
request (or such other time as requested by the Agent), provided,
that (i) such appraisals shall be conducted by an appraiser
selected by Agent and consented to by Borrower (which consent
cannot be unreasonably withheld by Borrower), and shall be in
form and substance, reasonably satisfactory to Agent; (ii)
Borrower may, within 30 days following the receipt by Borrower of
such appraisal, dispute the assumptions set forth therein by
delivery of a written notice to Agent ("Notice of Dispute");
(iii) Agent shall use good faith efforts to resolve such dispute
with Borrower within 15
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days following the receipt by Agent of the Notice of Dispute, and
(iv) until a resolution has been reached with respect to the
assumptions in question, Agent, in its sole discretion, may
implement Reserves to reflect the going-out-of-business appraisal
then most recently delivered to Agent. Notwithstanding the
foregoing, if an Event of Default has occurred or is continuing,
Agent may select the appraiser without the consent of Borrower and
items (ii)-(iv) above shall not be applicable.
(i) Clause (b) of Schedule I to the Credit Agreement is hereby
amended by amending and restating the phrase "On the last day of each Fiscal
Quarter thereafter" which appears in clause (b) of Schedule I to the Credit
Agreement to read in its entirety as "On or about the last day of January, 2003
and on the last day of each Fiscal Quarter thereafter."
(j) Schedule I to the Credit Agreement is hereby amended by
inserting, immediately following clause (b) of Schedule I to the Credit
Agreement, a new clause (c) which shall read in its entirety as follows:
"(c) Minimum EBITDA. Ultimate Parent shall have EBITDA, for
each period set forth below, of not less than the amount set forth
opposite such period below:
Period EBITDA
From and including October 6, 2002
through and including November 2, 2002 $(2,000,000)
From and including November 3, 2002
through and including November 30, 2002 $14,849,000
From and including December 1, 2002
through and including January 4, 2003 $62,880,000."
SECTION 2 REPRESENTATIONS AND WARRANTIES.
Borrower and the Credit Parties who are party hereto represent and
warrant that:
(a) the execution, delivery and performance by Borrower and such
Credit Parties of this Amendment have been duly authorized by all necessary
corporate action and this Amendment is a legal, valid and binding obligation of
Borrower and such Credit Parties enforceable against Borrower and such Credit
Parties in accordance with its terms, except as the enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law);
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(b) each of the representations and warranties contained in the
Credit Agreement is true and correct in all material respects on and as of the
date hereof as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date;
(c) neither the execution, delivery and performance of this
Amendment nor the consummation of the transactions contemplated hereby does or
shall contravene, result in a breach of, or violate (i) any provision of
Borrower's or Credit Parties' certificate or articles of incorporation or
bylaws, (ii) any law or regulation, or any order or decree of any court or
government instrumentality or (iii) indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Borrower, the Credit Parties or any of
their Subsidiaries is a party or by which Borrower, the Credit Parties or any of
their Subsidiaries or any of their property is bound, except in any such case to
the extent such conflict or breach has been waived by a written waiver document
a copy of which has been delivered to Agent on or before the date hereof; and
(d) no Default or Event of Default will exist or result after
giving effect hereto.
SECTION 3 CONDITIONS TO EFFECTIVENESS.
This Amendment will be effective only upon satisfaction of the
following:
(a) Execution and delivery of (i) this Amendment by Borrower,
the Credit Parties that are listed on the signature pages hereto, the Agent and
Requisite Lenders and (ii) of each of the documents listed on Exhibit A to this
Amendment by each of the applicable Persons.
(b) The representations and warranties contained herein shall be
true and correct in all respects.
(c) Payment (i) to each Lender executing this Amendment of an
amendment fee equal to one quarter of one percent (.25%) of such Lender's
Revolving Loan Commitment as of the date hereof (which fee shall be fully earned
and payable on the date hereof) and (ii) to General Electric Capital Corporation
of all amounts owing to it pursuant to that certain letter agreement dated the
date of the First Amendment.
SECTION 4 REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Agent or any
Lender under the Credit Agreement or any Loan Document, nor constitute a waiver
of any provision of the Credit Agreement or any Loan Document, except as
specifically set forth herein. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and refer to the Credit Agreement
as amended hereby.
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SECTION 5 WAIVER AND RELEASE.
In consideration of the foregoing, each of Borrower and each
Credit Party hereby waives, releases and covenants not to xxx Agent or any
Lender with respect to, any and all claims it may have against Agent or any
Lender, whether known or unknown, arising in tort, by contract or otherwise
prior to the date hereof relating to one or more Loan Documents.
SECTION 6 COSTS AND EXPENSES.
As provided in Section 11.3 of the Credit Agreement, Borrower
agrees to reimburse Agent for all fees, costs and expenses, including the fees,
costs and expenses of counsel or other advisors for advice, assistance, or other
representation in connection with this Amendment.
SECTION 7 GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
SECTION 8 HEADINGS.
Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this amendment
for any other purposes.
SECTION 9 COUNTERPARTS.
This Amendment may be executed in any number of counterparts, each
of which when so executed shall be deemed an original but all such counterparts
shall constitute one and the same instrument.
SECTION 10 CONFIDENTIALITY.
The matters set forth herein are subject to Section 11.18 of the
Credit Agreement, which is incorporated herein by reference.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of
the date first written above.
BORROWER:
WILSONS LEATHER HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
Revolving Loan Commitment: GENERAL ELECTRIC CAPITAL
$50,000,000 (including $10,000,000 CORPORATION, as Agent, Lender and Swing
Swing Line Commitment) Line Lender
Term Loan B Commitment:
$25,000,000 By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Duly Authorized Signer
------------------------------------
Revolving Loan Commitment: LASALLE RETAIL FINANCE, a division of
$30,000,000 LaSalle Business Credit, as agent for
Standard Federal Bank National
Association, as Lender
By: /s/ Xxxxxxx X'Xxxxxx
---------------------------------------
Title: Senior Vice President
------------------------------------
Revolving Loan Commitment: THE CIT GROUP/BUSINESS CREDIT, INC., as
$45,000,000 Lender and Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
------------------------------------
Revolving Loan Commitment: XXXXX FARGO RETAIL FINANCE LLC, as Lender
$45,000,000 and Syndication Agent
By: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President
------------------------------------
Revolving Loan Commitment: U.S. BANK NATIONAL ASSOCIATION,
$10,000,000 as Lender
By: Xxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Senior Vice President
------------------------------------
The undersigned are executing this Credit Agreement in their
capacity as Credit Parties:
Wilsons The Leather Experts Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
Wilsons Center, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
Rosedale Wilsons, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
River Hills Wilsons, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
Bermans The Leather Experts Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Senior Vice President and CFO
------------------------------------
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