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EXHIBIT 10.38
AMENDMENT NO. 4
TO THE CREDIT AGREEMENT
Dated as of March 17, 2000
AMENDMENT NO. 4 TO THE CREDIT AGREEMENT (this "Amendment")
among Iron Age Corporation, a Delaware corporation (the "Borrower"), Iron Age
Holdings Corporation, a Delaware corporation (the "Parent Guarantor"), the
banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "Lenders") and Banque
Nationale de Paris, as agent (the "Agent") for the Lenders, initial issuing bank
and swing line bank.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into
a Credit Agreement dated as of April 24, 1998, a Letter Waiver thereto dated as
of August 28, 1998, an Amendment No. 2 and Waiver dated as of February 26, 1999
and an Amendment No. 3 and Waiver dated as of June 23, 1999 (such Credit
Agreement, as so amended, the "Credit Agreement"). Capitalized terms not
otherwise defined in this Amendment have the same meanings as specified in the
Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend
the Credit Agreement 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 2 hereof, hereby amended as
follows:
(a) The definition of "Fixed Charge Coverage Ratio" set forth
in Section 1.01 is amended by amending clause (a)(ii) thereof in full
to read as follows:
"(ii) income taxes of the Parent Guarantor and its
Subsidiaries that have been paid in cash during such Rolling
Period (other than taxes paid in respect of the purchase of
Senior Subordinated Notes and Discount Notes at a discount in
accordance with Section 5.02(k)(ii)(z)) to"
(b) Sections 3.02(iii)(b) and (c) are amended by inserting in
each case after the words "Senior Subordinated Notes" the words "or
Discount Notes".
(c) Section 3.02(iv) is amended by deleting therefrom the
following:
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", plus, for the period beginning on the date that
the Borrower first makes an Acquisition Borrowing to finance
the purchase of Senior Subordinated Notes in accordance with
the terms set forth in Section 5.02(k)(ii)(z) and ending on
the date upon which the Required Lenders consent in writing to
the termination of such availability blockage, $3,000,000"
(d) Section 5.02(k) is amended in full to read as follows:
"(k) Prepayments, Etc. of Debt. (i) Amend, modify or
change in any manner, or permit any of their Subsidiaries to
amend, modify or change in any manner, any term or condition
of any Surviving Debt, any Subordinated Debt or the Discount
Notes or (ii) prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms
of, any Debt, or permit any of their Subsidiaries to do so,
other than (x) the prepayment of the Advances in accordance
with the terms of this Agreement, (y) if both before and after
giving effect to any such prepayment, redemption, purchase,
defeasance or other satisfaction, no Default has occurred or
would result therefrom, regularly scheduled or required
repayments or redemptions of Surviving Debt and (z) on or
prior to August 31, 2000, the purchase of Senior Subordinated
Notes and Discount Notes at or below par if (1) the Borrower
provides to the Lenders on or prior to the date of such
purchase a certificate (A) stating that both before and after
giving effect to any such purchase, no Default has occurred or
would result therefrom, (B) stating that, in the aggregate,
not more than $13,300,000 of the Acquisition Advances have
been used in connection with such purchase of Senior
Subordinated Notes and Discount Notes and that, in aggregate,
not more than $1,500,000 of the Acquisition Advances has been
used in connection with such purchase of Discount Notes and
(C) demonstrating in reasonable detail pro forma compliance
with Section 5.04 giving effect to such purchase, (2) any
proceeds of the Acquisition Advances used in connection with
such purchase shall not exceed $13,300,000 in the aggregate
and shall equal not more than 66 2/3% of the purchase price of
such Senior Subordinated Notes and Discount Notes and not less
than 33 1/3% of the purchase price of such Senior Subordinated
Notes and Discount Notes shall be paid with the proceeds of a
Permitted Issuance, and (3) any proceeds of the Acquisition
Advances used in connection with such purchase of the Discount
Notes shall not exceed $1,500,000 in the aggregate."
SECTION 2. Conditions of Effectiveness. This Amendment shall
become effective as of the date first above written when, and only when, the
Agent shall have received the following:
(a) Counterparts of this Amendment executed by the Borrower
and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment,
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(b) The consent attached hereto executed by the Parent
Guarantor and the Subsidiary Guarantors, and
(c) A certificate of each of the Borrower, the Parent
Guarantor and each other Loan Party, signed on behalf of such Person by
its President, any Executive Vice President or any Vice President and
its Secretary, dated the date of this Amendment (the statements made in
which certificate shall be true on and as of the date of this
Amendment), certifying as to (A) the completeness and accuracy of the
representations and warranties contained in the Loan Documents as
though made on and as of the date of this Amendment, and (B) the
absence of any event occurring and continuing, or resulting from this
Amendment, that constitutes a Default,
This Amendment is subject to the provisions of Section 9.01 of the Credit
Agreement.
SECTION 3. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
indicated in the recital of parties to this Amendment.
(b) The execution, delivery and performance by the Borrower of
this Amendment and the Loan Documents, as amended hereby, to which it
is or is to be a party, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action and do not
(i) contravene the Borrower's charter or by-laws, (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934, as
amended, and the Racketeer Influenced and Corrupt Organizations Chapter
of the Organized Crime Control Act of 1970), rule or regulation
(including, without limitation, Regulation X of the Board of Governors
of the Federal Reserve System), or any order, writ, judgment,
injunction, decree, determination or award, binding on or affecting the
Borrower or any of its Subsidiaries or any of their properties, (iii)
conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Borrower,
any of its Subsidiaries or any of their properties or (iv) except for
the Liens created under the Collateral Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of
the properties of the Borrower or any of its Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery or
performance by the Borrower of this Amendment or any of the Loan
Documents, as amended hereby, to which it is or is to be a party.
(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and each of the other Loan Documents, as
amended hereby, to which
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the Borrower is a party is the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its
terms.
(e) There is no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries
(including, without limitation, any Environmental Action) pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Amendment or any of the other Loan Documents, as amended hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and
the Loan Documents. (a) On and after the effectiveness of this Amendment, 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
each of 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 by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents,
as specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
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. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of
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which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Governing Law. This 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
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
IRON AGE CORPORATION
By
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Title:
BANQUE NATIONALE DE PARIS,
as Agent, Swing Line Bank,
Issuing Bank and as Lender
By
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Title:
By
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Title:
KEY CORPORATE CAPITAL INC.
By
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Title:
PNC BANK, NATIONAL ASSOCIATION
By
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Title:
UBS AG, STAMFORD BRANCH
By
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Title:
By
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Title:
U.S. BANK NATIONAL ASSOCIATION
By
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Title:
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CONSENT
Dated as of March 17, 2000
Each of the undersigned, as a Loan Party party to certain of
the Loan Documents (as defined in the Credit Agreement referred to in the
foregoing Amendment No. 4), hereby consents to such Amendment and hereby
confirms and agrees that (a) notwithstanding the effectiveness of such
Amendment, each Loan Document to which it is a party is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of such Amendment, each
reference in such Loan Document to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by such Amendment, and (b) the Collateral Documents to
which such Loan Party is a party and all of the Collateral described therein do,
and shall continue to, secure the payment of all of the Secured Obligations (in
each case, as defined therein).
IRON AGE HOLDINGS CORPORATION
By
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Title:
IRON AGE INVESTMENT COMPANY
By
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Title:
FALCON SHOE MFG. CO.
By
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Title:
