THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.1d
THIRD
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
This
Third Amendment to Amended and Restated Credit Agreement (the “Third Amendment”)
is made as of the 23rd day of July, 2007, by and among
XXXXX
SHOE COMPANY, INC., a corporation organized under the laws of the State of
New
York having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, as Lead Borrower for the Borrowers, being
said
XXXXX SHOE COMPANY, INC.,
XXXXXX
XXXX ASSOCIATES, INC., a corporation organized under the laws of the State
of
Missouri having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000;
XXXXX
GROUP RETAIL, INC., a corporation organized under the laws of the Commonwealth
of Pennsylvania having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000;
XXXXX
SHOE INTERNATIONAL CORP. (f/k/a Xxxxx Shoe International, LLC), a corporation
organized under the laws of the State of Delaware having a place of business
at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
XXXXXX
XXXXX & CO., a corporation organized under the laws of the State of Missouri
having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
and
XXXXXXX
FOOTWEAR GROUP LLC, a Delaware limited liability company having a place of
business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
XXXXX
SHOE COMPANY OF CANADA LTD, a Canadian corporation having a place of business
at
0000 Xxxxxxx Xxxx, Xxxxx, Xxxxxxx, Xxxxxx X0X 0X0, as a Loan Party but not
as
Borrower;
the
LENDERS party hereto; and
BANK
OF
AMERICA, N.A., as Lead Issuing Bank, a national banking association having
a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
and
BANK
OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the Lenders
and
the Secured Parties, a national banking association, having an office at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and
LASALLE
BANK NATIONAL ASSOCIATION, as Syndication Agent; and
XXXXX
FARGO FOOTHILL, LLC, as Documentation Agent
in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS,
the Lead Borrower, the other Borrowers (other than Xxxxxxx Footwear Group LLC),
Xxxxx Canada, the Administrative Agent, the Collateral Agent, the Lenders,
the
Lead Issuing Bank, the Syndication Agent, and the Documentation Agent have
entered into an Amended and Restated Credit Agreement dated as of July 21,
2004,
as amended by a First Amendment thereto, dated as of March 14, 2005 and by
a
Second Amendment thereto dated February 14, 2006 (as amended so and as in
effect, the “Credit Agreement”); and
WHEREAS,
the Lead Borrower, the other Borrowers, Xxxxx Canada, the Administrative Agent
,
the Collateral Agent, the Lenders, the Lead Issuing Bank, the Syndication Agent,
and the Documentation Agent have agreed to amend certain provisions of the
Credit Agreement as set forth herein.
NOW
THEREFORE, it is hereby agreed as follows:
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1.
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Definitions:
All capitalized terms used herein and not otherwise defined shall
have the
same meaning herein as in the Credit
Agreement.
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2.
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Amendment
to Article 1. The provisions of Section 1.1 of the Credit
Agreement are hereby amended as
follows:
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a.
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The
definition of “Appraisal Percentage” is hereby deleted in its entirety and
the following substituted in its
stead:
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“Appraisal
Percentage” shall mean 90%.
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b.
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The
definition of “Borrowers” is hereby deleted in its entirety and the
following substituted in its stead:
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“Borrowers”
means individually and collectively, the Lead Borrower, Xxxxxx Xxxx, Xxxxx
Retail, Xxxxx International, Buster Brown, Bennett, and any other Person which
becomes a “Borrower” in accordance with the provisions of this
Agreement.
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c.
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The
definition of “Borrowing Base” is hereby amended by deleting clause (a) of
such definition and substituting the following in its
stead:
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(a)
(i)
the Appraisal Percentage multiplied by (ii)(A) the Appraised Value of Eligible
Inventory minus (B) Inventory Reserves; plus
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d.
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The
definition of “Disqualified Capital Stock” is amended to read
“Disqualified Stock.”
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e.
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The
definition of “Eligible Inventory” is hereby amended by deleting clause
(i) thereof in its entirety and substituting the following in its
stead:
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(i) Inventory
which is acquired in a Permitted Acquisition unless the Collateral Agent, in
its
Permitted Discretion, agrees that such Inventory shall temporarily be deemed
Eligible Inventory, provided, however that if the Collateral Agent so
agrees, the advance rate against such Inventory shall not exceed 50% of the
Cost
of such Inventory and such Inventory shall be deemed Eligible Inventory for
no
more than ninety (90) days except as set forth in the following proviso, and
provided further that, during such ninety (90) day period referred to
above, the Collateral Agent shall cause an appraisal of such Inventory to be
completed, shall establish Inventory Reserves (if applicable) therefor, and
shall otherwise determine whether such Inventory shall be deemed Eligible
Inventory;
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f.
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The
definition of “Inventory Advance Rate” is hereby deleted in its
entirety.
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g.
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The
definition of “Line Fee” is hereby amended by deleting the number “0.30%”
and substituting the number “0.25%” in its
stead.
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h.
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The
definition of “Permitted Acquisition” is hereby amended by deleting clause
(vii) thereof in its entirety and substituting the following in its
stead:
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(vii)
the
total consideration paid or payable in connection with any Acquisition (whether
in cash, property or securities) shall not exceed $35,000,000 for any
Acquisition or $100,000,000 in the aggregate for all Acquisitions after the
Third Amendment Effective Date, unless, in each case, the Payment Conditions
are
satisfied; and
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i.
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The
definition of “Permitted Consignment” is hereby amended by deleting the
number “$3,000,000” appearing therein and substituting the number
“$35,000,000” in its stead.
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j.
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The
definition of “Permitted Encumbrances” is hereby amended by deleting the
number “$500,000” appearing in clause (ii) and substituting the number
“$35,000,000” in its stead.
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k.
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The
definition of “Permitted Stock Repurchase” is hereby deleted in its
entirety and the following substituted in its
stead:
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“Permitted
Stock Repurchase” means a purchase by the Lead Borrower of Capital Stock of
the Lead Borrower; provided that the aggregate of all such purchases
shall not exceed $35,000,000 for any Permitted Stock Repurchase or $100,000,000
in the aggregate for all Permitted Stock Repurchases after the Third Amendment
Effective Date, unless, in each case, the Payment Conditions are
satisfied.
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l.
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The
definition of “Pro Forma Conditions” is hereby deleted in its
entirety.
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m.
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The
definition of “Pro Forma Fixed Charge Coverage Ratio” is hereby deleted in
its entirety.
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n.
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The
following new definitions are hereby added to Article 1 in appropriate
alphabetical order:
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i.
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“Xxxxxxx”
means Xxxxxxx Footwear Group LLC, a Delaware limited liability
company.
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ii.
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“Payment
Conditions” means, at the time of determination with respect to a
specified transaction or payment, that (a) no Default or Event of
Default
then exists or would arise as a result of the entering into
such transaction or the making of such payment and (b) prior to and
after
giving effect to such transaction or payment, Excess Availability
shall be
greater than $35,000,000; (c) the Fixed Charge Coverage Ratio, on
a
pro-forma basis (after giving effect to such transaction or payment)
for
the twelve months preceding such transaction or payment, shall be
equal to
or greater than 1.0:1.0 and (d) the Loan Parties shall have provided
the
Administrative Agent with a certificate from a Financial Officer
demonstrating to the reasonable satisfaction of the Administrative
Agent
that, on a pro forma basis (after giving effect to such transaction
or
payment), the Loan Parties, taken as a whole, are, and will be,
Solvent.
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iii.
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“Third
Amendment” means the Third Amendment to Amended and Restated Credit
Agreement dated as of the 23rd day of July,
2007.
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iv.
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“Third
Amendment Effective Date” means July 23,
2007.
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3.
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Amendment
to Article 2. The provisions of Section 2.13 of the Credit
Agreement are hereby amended by deleting the number “0.30%” and
substituting the number “0.25%” in its
stead.
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4.
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Amendment
to Article V. The provisions of Section 5.1(i) are hereby
deleted in their entirety and the following substituted in their
stead:
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(i)
with
respect to each Permitted Acquisition, to the extent permitted by Applicable
Law, as soon as available, but not less than ten (10) Business Days prior to
the
consummation of a Permitted Acquisition, written notice to the Administrative
Agent of such Permitted Acquisition together with a copy of all business and
financial information reasonably requested by the Administrative Agent and,
in
the event that the total consideration paid or payable in connection with such
Permitted Acquisition (whether in cash, property or securities) exceeds
$35,000,000 or the total consideration paid or payable in connection with such
Permitted Acquisition together with all other Permitted Acquisitions consummated
after the Third Amendment Effective Date (whether in cash, property or
securities) exceeds $100,000,000, a certificate of a Financial Officer of the
Lead Borrower certifying (and showing the calculations therefor in reasonable
detail) that the Payment Conditions will be satisfied, and (ii) as soon as
available the information provided to the board of directors of the Lead
Borrower with respect to such Permitted Acquisition;
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5.
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Amendments
to Article 6. The provisions of Article 6 of the Credit
Agreement are amended as follows:
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a.
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The
provisions of Section 6.1(d) are hereby amended by deleting the words
“the
Pro Forma Conditions” and substituting the words “the Payment Conditions”
in their stead.
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b.
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The
provisions of Section 6.1(i) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(i) Intentionally
Omitted.
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c.
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The
provisions of Section 6.1(j) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(j) Subordinated
Debt (other than Indebtedness described in subsection (k) below) provided
that after giving effect to the incurrence thereof, the Payment Conditions
are satisfied;
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d.
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The
provisions of Section 6.1(k) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(k) Unsecured
Indebtedness for borrowed money, including, without limitation, Subordinated
Debt (other than Indebtedness described in subsection (j) above), provided
that (A) after giving effect to the incurrence thereof and the projected
refinancing or refunding thereof, the Payment Conditions are satisfied (except
that it shall not be necessary to satisfy the Payment Conditions with respect
to
any such refinancing, refunding or exchange for any bridge facility permitted
under this Section 6.1(k)) with the proceeds of any publicly issued or privately
placed notes, any exchange notes or any rollover notes, in each case issued
to
refinance or refund, or in exchange for any such bridge facility), (B)
constitutes a bridge loan pending the consummation of a debt or equity issuance,
and (C) the principal of which will not be repaid (other than (1) from the
proceeds of such debt or equity issuance or from any rollover loans, publicly
issued or privately placed notes, or exchange notes issued in exchange for
the
bridge loan, or (2) as permitted pursuant to Section 6.7(b)(i) hereof) until
all
Obligations have been paid in full and all Commitments terminated;
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e.
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The
provisions of Section 6.1(o) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(o) Other
unsecured Guarantees of Indebtedness and other obligations of any Subsidiary
which is not a Loan Party, provided that no payment shall be made on
account of any such Guarantee unless the Payment Conditions are satisfied at
the
time of payment;
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f.
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The
provisions of Section 6.1(q) are hereby amended by deleting the words
“the
Pro Forma Conditions” and substituting the words “the Payment Conditions”
in their stead.
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g.
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The
provisions of Section 6.1(s) are hereby in their entirety and the
following substituted in their
stead:
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(s)
other
unsecured Indebtedness in an aggregate principal amount not to exceed
$100,000,000 at any time outstanding, unless at the time of incurrence of any
Indebtedness which would result in such amount being exceeded, the Payment
Conditions shall have been satisfied.
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h.
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The
provisions of Section 6.4(g) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(g) Investments
by a Loan Party in a Subsidiary (including, without limitation, in a Foreign
Subsidiary) which is not a Loan Party, in a joint venture (including, without
limitation, in or with a foreign Person) or in a Person (including, without
limitation, in a foreign Person)which constitutes a minority equity interest
in
such Person provided that such Investments do not exceed $35,000,000 for
any single Investment or $100,000,000 in the aggregate for all such Investments
after the Third Amendment Effective Date, unless, in each case, the Payment
Conditions are satisfied; and provided further that for purposes of
calculation, the amount of any Investment shall be the aggregate cash Investment
less all cash returns, cash dividends and cash distributions (or the
fair market value of any non-cash returns, dividends and distributions) received
by such Loan Party from such Subsidiary, joint venture or Person;
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i.
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The
provisions of Section 6.4(j) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(j) for
the period prior to the date on which Xxxxx.xxx shall become a Borrower,
additional Investments by the Loan Parties in Xxxxx.xxx (i) consisting of trade
payables due a Loan Party from Xxxxx.xxx which are not current in an aggregate
outstanding amount not to exceed $17,000,000 at any time, (ii) other Investments
in Xxxxx.xxx, provided that immediately before and after giving effect to any
such Investment described in this clause (ii), the Payment Conditions are
satisfied, it being understood that on or after the date on which Xxxxx.xxx
shall become a Borrower, the provisions of this clause (j) shall be inapplicable
to Investments by a Loan Party in Xxxxx.xxx (whether made before or after such
date); and
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j.
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The
provisions of Section 6.4(k) are hereby deleted in their entirety
and the
following substituted in their
stead:
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(k)
other
Investments in an aggregate amount not to exceed $35,000,000 after the Third
Amendment Effective Date.
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k.
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The
provisions of Section 6.6 are hereby amended by deleting the word
“and”
appearing at the end of clauses (i) and (iv) of the proviso thereto
and by
adding the following to the end of clause
(v):
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and
(vi)
from and after the date on which Xxxxx.xxx becomes a Borrower, clause (b) of
this Section shall not apply to the restrictions set forth in the certificate
of
incorporation of Xxxxx.xxx as in effect on the Third Amendment Effective
Date.
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l.
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The
provisions of Section 6.7(a)(i) are hereby deleted in their entirety
and
the following substituted in their
stead:
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(i)
the
Lead Borrower may declare and pay dividends quarterly with respect to its
Capital Stock provided that the aggregate of all such dividends shall not
exceed $35,000,000 for any single dividend declared to stockholders or
$100,000,000 in the aggregate for all such dividends after the Third Amendment
Effective Date, unless, in each case, the Payment Conditions are
satisfied;
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m.
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The
provisions of Section 6.7(b)(ii) are hereby amended by deleting the
words
“the Pro Forma Conditions” and substituting the words “the Payment
Conditions” in their stead.
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6.
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Amendments
to Article 7. The provisions of Section 7.1(f) of the
Credit Agreement are hereby deleted in their entirety and the following
substituted in their stead:
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(f)
any
Borrower shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness when and as the
same shall become due and payable (after giving effect to the expiration of
any
grace or cure period set forth therein) other than a failure to make any payment
in respect of a Guarantee where such payment is prohibited by Section
6.1(o);
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7.
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Conditions
to Effectiveness.
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a.
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Paragraphs
2 (other than clauses (a), (c), (e), (f) and (g) thereof), 4, 5 and
6 of
this Third Amendment shall not be effective until each of the following
conditions precedent have been fulfilled to the satisfaction of the
Administrative Agent::
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i.
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This
Third Amendment shall have been duly executed and delivered by the
Borrowers, Xxxxx Canada, the Administrative Agent, the Collateral
Agent
and the Required Lenders. The Administrative Agent shall have
received a fully executed copy hereof and of each other document
required
hereunder.
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ii.
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No
Default or Event of Default shall have occurred and be
continuing.
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iii.
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The
Borrowers shall have provided such additional instruments, documents,
and
opinions of counsel to the Administrative Agent as the Administrative
Agent and their counsel may have reasonably
requested.
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b.
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Clauses
(a), (c), (e), (f) and (g) of Paragraph 2 and Paragraph 3 of this
Third
Amendment shall not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of the Administrative
Agent:
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i.
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The
conditions to effectiveness set forth in Paragraph 7(a)(ii) and 7(a)(iii)
above shall have been satisfied.
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ii.
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This
Third Amendment shall have been duly executed and delivered by the
Borrowers, Xxxxx Canada, the Administrative Agent, the Collateral
Agent
and each of the Lenders. The Administrative Agent shall have
received a fully executed copy hereof and of each other document
required
hereunder.
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8.
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Miscellaneous.
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a.
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Except
as provided herein, all terms and conditions of the Credit Agreement
and
the other Loan Documents remain in full force and effect. The
Borrowers each hereby ratify, confirm, and reaffirm all of the
representations, warranties and covenants therein
contained.
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b.
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This
Third Amendment may be executed in several counterparts and by each
party
on a separate counterpart, each of which when so executed and delivered,
each shall be an original, and all of which together shall constitute
one
instrument. Delivery of an executed counterpart of a signature
page hereto by telecopy shall be effective as delivery of a manually
executed counterpart hereof.
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c.
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This
Third Amendment expresses the entire understanding of the parties
with
respect to the matters set forth herein and supersedes all prior
discussions or negotiations hereon.
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d.
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IN
WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
executed and their seals to be hereto affixed as the date first above
written.
“The
Borrowers”
XXXXX
SHOE COMPANY, INC.
XXXXXX
XXXX ASSOCIATES, INC.
XXXXX
GROUP RETAIL, INC.
XXXXX
SHOE INTERNATIONAL CORP.
XXXXXX
XXXXX & CO.
XXXXXXX
FOOTWEAR GROUP LLC
as
to
each of the foregoing
By:_____/s/_
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
Title:
Senior Vice President and
Chief Financial Officer
“Non-Borrower
Loan Party”
XXXXX
SHOE COMPANY OF CANADA LTD
By:_____/s/_
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
Title: Senior
Vice President-Finance
BANK
OF
AMERICA, N.A., as Administrative Agent, Collateral Agent, Lead Issuing Bank
and
Lender
By:_______/s/__Mark
Twomey_______
Print
Name: Xxxx Xxxxxx
Title:
Vice President
LASALLE
BANK NATIONAL ASSOCIATION
By:_______/s/_Margaret
Dierkes_______
Print
Name: Xxxxxxxx Xxxxxxx
Title:
First Vice President
XXXXX
FARGO FOOTHILL, LLC
By:________/s/ Xxxxxxxx
Fong_________
Print
Name: Xxxxxxxx Xxxx
Title:
AVP
WACHOVIA
CAPITAL FINANCE CORPORATION (CENTRAL)
By:________/s/____Brian
Hynds_______
Print
Name: Xxxxx Xxxxx
Title:
Vice President
THE
CIT
GROUP/BUSINESS CREDIT, INC.
By:________/s/___Manuel
Borges______
Print
Name: Xxxxxx Xxxxxx
Title:
Vice President
NATIONAL
CITY BUSINESS CREDIT, INC.
By:_______/s/____Kathryn
C. Ellero_____
Print
Name: Xxxxxxx X. Xxxxxx
Title:
Vice President
PNC
BANK,
NATIONAL ASSOCIATION
By:_______/s/____Sherry
Winick_______
Print
Name: Xxxxxx Xxxxxx
Title:
Vice President
GENERAL
ELECTRIC CAPITAL CORPORATION
By:_______/s/____Ronald
Reese________
Print
Name: Xxxxxx Xxxxx
Title:
Duly Authorized Signatory
REGIONS
BANK f/k/a AMSOUTH BANK
By:_______/s/____Cynthia
Marinos _____
Print
Name: Xxxxxxx Xxxxxxx
Title:
Attorney-in-Fact
SUN
TRUST
BANK
By:_______/s/____Lauren
P. Carrigan___
Print
Name: Xxxxxx X. Xxxxxxxx
Title:
Vice President
XXXXXXX
BUSINESS CREDIT CORPORATION
By:_______/s/__Walter
K. Stockhecker___
Print
Name: Xxxxxx X. Xxxxxxxxxxx
Title:
Vice President
FIRST
BANK
By:_______/s/___Brenda
J. Laux________
Print
Name: Xxxxxx X. Xxxx
Title:
Executive Vice President
RZB
FINANCE LLC
By:_______/s/___Astrid
Xxxxx Noebauer__
Print
Name: Astrid Xxxxx Xxxxxxxx
Title:
Group Vice President
By:_______/s/___Shirley
Ritch__________
Print
Name: Xxxxxxx Xxxxx
Title:
Assistant Vice President
THE
GOVERNOR & COMPANYOF THE BANK OF IRELAND
By:_______/s/___Deirdre
Reddan_______
Print
Name: Xxxxxxx Xxxxxx
Title:
Associate Director
