Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT
Dated as of June 2, 1999
This SECOND AMENDMENT among Barney's, Inc., a New York corporation
("Barneys"), Barneys America, Inc., a Delaware corporation ("BAI"), PFP Fashions
Inc., a New York corporation ("PFP"), Barneys (CA) Lease Corp., a Delaware
corporation ("CA Lease"), Barneys (NY) Lease Corp., a Delaware corporation ("NY
Lease"), Xxxxx All-American Sportswear Corp., a New York corporation ("Xxxxx"),
BNY Licensing Corp., a Delaware corporation ("BNY"), and Barneys America
(Chicago) Lease Corp., a Delaware corporation ("Chicago Lease;" and together
with Barney's, BAI, PFP, CA Lease, NY Lease, Xxxxx and BNY collectively the
"Borrowers"), the Lenders (as defined below) and the Administrative Agent (as
defined below), and amends the Credit Agreement dated as of January 28, 1999 (as
amended hereby and as the same may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") entered into among the
Borrowers, the financial institutions from time to time parties thereto (the
"Lenders"), the issuing banks from time to time parties thereto (the "Issuing
Banks"), General Electric Capital Corporation, in its capacity as documentation
agent and Citicorp USA, Inc., in its capacity as agent for the Lenders and the
Issuing Banks (the "Administrative Agent"). Unless otherwise defined herein, the
terms defined in the Credit Agreement shall be used herein as therein defined.
PRELIMINARY STATEMENTS:
(1) The Borrowers have requested the Lenders to amend the Credit
Agreement to amend the definition of "Consolidated EBITDA".
(2) The Borrowers and the Requisite Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendment to Credit Agreement. The definition of
"Consolidated EBITDA" in Section 1.01 of the Credit Agreement is, effective as
of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2 hereof, hereby amended by deleting in its entirety such
definition and substituting therefor the following:
"'Consolidated EBITDA' means, for any twelve-month period on a
consolidated basis for any Person and its Subsidiaries, (i) the sum of (A)
Consolidated Net Income, (B) depreciation and amortization expense, (C)
Consolidated Interest Expense, (D) federal, state, local and foreign income
taxes, (E) other non-cash charges and (F) up to $3,000,000 of any cash equity
contributed to the Borrowers during Fiscal Year 1999, minus (ii) extraordinary
gains not already excluded from the determination of Consolidated Net Income."
SECTION 2. Conditions Precedent to Effectiveness. This Second
Amendment shall become effective as of the date hereof on the date (the
"Amendment Effective Date") when the following conditions precedent have been
satisfied:
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(a) Certain Documents. The Administrative Agent shall have received
all of the following:
(i) this Second Amendment executed by the Borrowers and the
Requisite Lenders; and
(ii) an Acknowledgment substantially in the form of Exhibit A
attached hereto executed by Barneys New York, Inc. ("Holdings").
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrowers or Holdings in or pursuant to the Credit
Agreement, as amended by this Second Amendment, and the other Loan
Documents to which any Borrower or Holdings is a party or by which each
Borrower or Holdings is bound, shall be true, correct and complete in all
material respects on and as of the Amendment Effective Date (other than
representations and warranties in any such Loan Document which expressly
speak as of a different date).
(c) No Events of Default. No Event of Default or Default shall have
occurred and be continuing on the Amendment Effective Date.
SECTION 3. Representations and Warranties. Each Borrower represents
and warrants as follows:
(a) After giving effect to this Second Amendment, all of the
representations and warranties contained in Section 6.01 of the Credit
Agreement and in the other Loan Documents shall be true, correct and
complete in all material respects.
(b) After giving effect to this Second Amendment, no Default or
Event of Default shall have occurred and be continuing.
(c) As of the date hereof, no material adverse change shall have
occurred in the condition (financial or otherwise), performance,
properties, operations or prospects of the Barneys Group since August 1,
1998 except as publicly disclosed prior to the date hereof.
SECTION 4. Reference to and Effect on the Loan Documents. (a) Upon
the effectiveness of this Second Amendment, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby.
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(b) Except as specifically amended above, the Credit Agreement and
all other Loan Documents, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Loan Documents and all of the Collateral
described therein do and shall continue to secure the payment of all obligations
of the Borrowers under the Credit Agreement, the Notes and the other Loan
Documents, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this Second
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Execution in Counterparts. This Second Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
SECTION 6. Governing Law. This Second Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed as of the date first above written.
BARNEY'S, INC.
BARNEYS AMERICA, INC.
PFP FASHIONS INC.
BARNEYS (CA) LEASE CORP.
BARNEYS (NY) LEASE CORP.
XXXXX ALL-AMERICAN SPORTSWEAR CORP.
BNY LICENSING CORP.
BARNEYS AMERICA (CHICAGO) LEASE CORP.
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Senior Vice President,
Interim Chief Financial Officer
CITICORP USA, INC., as Administrative Agent and
Lender
By: /s/ Xxxxxx Xxxxxx
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Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By: /s/ Xxxxx Xxxxxxxxxxx
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Title: Duly Authorized Signatory
BNY FINANCIAL CORPORATION, as Lender
By: /s/ Xxx Xxxxxxx
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Title: Senior Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC., as Lender
By: /s/ Xxxxxxx Xxxxxx
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Title: Assistant Vice President
EXHIBIT A
ACKNOWLEDGMENT
Reference is hereby made to the Holdings Guaranty (as defined in the
Credit Agreement) to which the undersigned is a party. The undersigned hereby
consents to the terms of the foregoing Second Amendment to Credit Agreement and
agrees that the terms thereof shall not affect in any way its obligations and
liabilities under the undersigned's Holdings Guaranty or any other Loan
Document, all of which obligations and liabilities shall remain in full force
and effect and each of which is hereby reaffirmed.
BARNEYS NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Senior Vice President,
Interim Chief Financial Officer