Exhibit 10.32
EXECUTION COPY
THIRD AMENDMENT
Dated as of November 30, 1999
This THIRD AMENDMENT is 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"), Barneys New York, Inc. ("Holdings"), the Lenders
(as defined below) and the Administrative Agent (as defined below). This Third
Amendment amends (i) 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"), and Citicorp USA, Inc., in its capacity as agent for the Lenders and
the Issuing Banks (the "Administrative Agent") and General Electric Capital
Corporation, in its capacity as documentation agent, and (ii) the Guaranty 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 "Guaranty")
made by Holdings in favor of the Administrative Agent for the benefit of the
Lenders. Unless otherwise defined herein, the terms defined in the Credit
Agreement shall be used herein as therein defined.
PRELIMINARY STATEMENTS:
(1) The Borrowers and the Requisite Lenders have agreed to
amend the Credit Agreement and the Guaranty as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3 hereof, hereby amended as
follows:
(a) The definition of "Consolidated EBITDA" in Section 1.01
of the Credit Agreement is 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 to the extent not used for Capital Expenditures
pursuant to clause (i) of the first proviso in Section 10.04, minus
(ii) extraordinary gains not already excluded from the determination of
Consolidated Net Income."
(b) The first proviso of Section 10.04 of the Credit
Agreement is hereby amended by deleting in its entirety such proviso and
substituting therefor the following:
" provided, however, the foregoing maximum amounts may be increased
(i) by the amount (on a dollar for dollar basis) of any cash equity
contribution made by Holdings to Barneys but only to the extent not
required in the calculation of "Consolidated EBITDA" in order for the
Borrowers to meet the financial covenants set forth in Sections 10.02
and 10.03, (ii) with respect to Fiscal Year 1999, by the amount, if
any, by which the Consolidated EBITDA for the Barneys Group,
calculated as of the last day of the immediately preceding fiscal
quarter for the twelve month period ending on such day, exceeds
$20,000,000 (without giving effect to the addition of any cash equity
contributed by Holdings to the Borrowers), on a dollar for dollar
basis, up to $4,000,000 in the aggregate provided that the amount of
such increase reduces the maximum amount of Capital Expenditures (on
a dollar for dollar basis) in a subsequent Fiscal Year ending prior
to February 7, 2003, and (iii) with respect to Fiscal Year 2000 and
each Fiscal Year thereafter, an amount of up to $4,000,000 for such
Fiscal Year if the Fixed Charge Coverage Ratio of the Barneys Group
on a consolidated basis, as determined as of the last day of the
immediately preceding fiscal quarter for the twelve month period
ending on such day (after giving effect to such increased amount of
Capital Expenditures), is more than 1.25 to 1.0 provided that the
amount of such increase reduces the maximum amount of Capital
Expenditures (on a dollar for dollar basis) in a subsequent Fiscal
Year selected by the Borrowers and ending prior to February 7, 2003;"
SECTION 2. Amendment to Guaranty. Section 7(d) of the
Guaranty is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3 hereof, hereby amended by
deleting in its entirety such Section and substituting therefor the following:
"(d) Investments. Directly or indirectly make or own any
Investments other than (i) Investments in a Borrower, (ii)
Investments in Cash Equivalents, (iii) Investments otherwise
permitted under the Credit Agreement, and (iv) Treasury Notes
required pursuant to the Plan of Reorganization."
SECTION 3. Conditions Precedent to Effectiveness. This
Third Amendment shall become effective as of the date hereof on the date (the
"Amendment Effective Date") when the Administrative Agent shall have received
this Third Amendment executed by the Borrowers, Holdings and the Requisite
Lenders.
SECTION 4. Representations and Warranties. Each Borrower
represents and warrants as follows:
(a) After giving effect to this Third 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 Third 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 5. Reference to and Effect on the Loan Documents.
Upon the effectiveness of this Third 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.
(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 Third
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 6. Execution in Counterparts. This Third 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 7. Governing Law. This Third 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
Third 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/ Xxxxx Xxxxxxx
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Title: Senior Vice President and
Chief Financial Officer
BARNEYS NEW YORK, INC.
By: /s/ Xxxxx Xxxxxxx
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Title: Senior Vice President and
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/ Xxxxxxx Xxxxxx
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Title: Duly Authorized Signatory
GMAC COMMERCIAL CREDIT LLC
By: /s/ Xxxxxx Xxxxxxx
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Title: Senior Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC., as Lender
By: /s/ Xxxxxxxx Xxxxxx
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Title: Assistant Vice President
