AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.1
AMENDMENT NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 1, 2011 (this "Agreement"), among THE XXXXX GROUP INC. (the "Company"), XXXXX APPAREL GROUP HOLDINGS, INC., XXXXX APPAREL GROUP USA, INC., JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION, XXXXX INVESTMENT CO. INC., XXXXX JEANSWEAR GROUP, INC., NINE WEST DEVELOPMENT CORPORATION and XXXXX JEWELRY GROUP, INC., as the U.S. Borrowers, XXXXX APPAREL GROUP CANADA, LP, as Canadian Borrower (together with the U.S. Borrowers, the "Borrowers"), the various Subsidiaries of the Company parties hereto, the Lenders parties hereto, JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the "Administrative Agent"), JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as administrative agent for the International Revolving Lenders (in such capacity, the "Canadian Administrative Agent"), and X.X. XXXXXX EUROPE LIMITED, as administrative agent for the International Revolving Lenders (in such capacity, the "European Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the Canadian Administrative Agent and the European Administrative Agent are parties to the Amended and Restated Credit Agreement, dated as of April 28, 2011, as amended (the "Credit Agreement");
WHEREAS, the Borrowers have requested that certain amendments be made to the Credit Agreement on the terms set forth herein; and
WHEREAS, the Lenders are willing, subject to the terms and conditions hereinafter set forth, to consent and agree to such amendments;
NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Definitions. The following terms (whether or not underscored) when used in this Agreement shall have the following meanings:
"Administrative Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Canadian Administrative Agent" is defined in the preamble.
"Company" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Effective Date" is defined in Section 5.1.
"European Administrative Agent" is defined in the preamble.
SECTION 1.2 Other Definitions. Unless otherwise defined or the context otherwise requires, terms used herein (including in the preamble and recitals hereto) have the meanings provided for in the Credit Agreement.
ARTICLE II
AMENDMENTS
Effective on (and subject to the occurrence of) the Effective Date, the Credit Agreement is amended as follows:
SECTION 2.1 Amendments to Section 6.04(l) of the Credit Agreement.
Section 6.04(l) of the Credit Agreement is amended and restated in its entirety as follows:
"(l) Permitted Acquisitions; provided that both immediately before and immediately after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing, and (ii) Availability shall not be less than 20% of the total Revolving Commitment as of the date such Permitted Acquisition is consummated and for the period of 60 consecutive days immediately preceding the consummation of such Permitted Acquisition after giving pro forma effect thereto;"
SECTION 2.2 Amendments to Section 6.04(p) of the Credit Agreement.
Section 6.04(p) of the Credit Agreement is amended and restated in its entirety as follows:
"(p) other Investments not otherwise permitted by this Section 6.04; provided that (i) both immediately before and immediately after giving effect to each such Investment, no Default or Event of Default shall have occurred and be continuing, and (ii) at the time any such Investment is made Availability shall not be less than 20% of the total Revolving Commitment as of the date such Investment is made and for the period of 60 consecutive days immediately preceding such date after giving pro forma effect thereto."
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SECTION 2.3 Amendments to Section 6.08(a)(iv) of the Credit Agreement.
Section 6.08(a)(iv) of the Credit Agreement is amended and restated in its entirety as follows:
"(iv) the Borrowers may make other Restricted Payments; provided that, (A) both immediately before the declaration of, and immediately after giving effect to each such Restricted Payment, no Default or Event of Default shall have occurred and be continuing, and (B) at the time any Restricted Payment is paid Availability shall not be less than 20% of the total Revolving Commitment for the period of 60 consecutive days immediately preceding the date such Restricted Payment is declared after giving pro forma effect thereto and"
SECTION 2.4 Amendments to Section 6.08(b)( v) of the Credit Agreement.
Section 6.08(b)(v) of the Credit Agreement is amended and restated in its entirety as follows:
"(v) prepayment of the Existing Debt Securities that are maturing in November 2014 pursuant to open market purchases or a tender offer for such Existing Debt Securities; provided that (A) both immediately before and after giving effect to such prepayment, no Default or Event of Default shall have occurred and be continuing and (B) either (1) after giving effect to such prepayment Availability plus cash on hand of the Loan Parties (which is reasonably identified to the satisfaction of the U.S. Collateral Agent) shall not be less than $200,000,000 or (2) Availability shall not be less than 20% of the total Revolving Commitment for the period of 60 consecutive days immediately preceding the date such prepayment is to be made after giving pro forma effect thereto; and"
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to approve all of the amendments that are provided for in Article II, each Borrower hereby (a) represents and warrants that (i) each of the representations and warranties of the Loan Parties contained in the Credit Agreement and in the other Loan Documents is true and correct in all material respects as of the date hereof as if made on the date hereof (except, if any such representation and warranty relates to an earlier date, such representation and warranty is true and correct in all material respects as of such earlier date); and (ii) both immediately before and after giving effect to the provisions of this Agreement no Default or Event of Default has occurred and is continuing; and (b) agrees that the incorrectness in any material respect of any representation and warranty contained in the preceding clause (a) shall constitute an immediate Event of Default. Without limiting the foregoing, each Borrower hereby (i) ratifies and confirms all of the terms, covenants and conditions set forth in the Loan Documents and hereby agrees that it remains liable to the Administrative Agent and the Lenders in accordance with the terms, covenants and conditions set forth in the Loan Documents, and all Liens on the Collateral created pursuant to the Collateral Documents continue unimpaired and in full force and effect, and (ii) waives all defenses, claims, counterclaims, rights of recoupment or set-off against any of its Obligations as provided in the Loan Documents.
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ARTICLE IV
ACKNOWLEDGMENT OF LOAN GUARANTORS
By executing this Agreement, each Loan Guarantor hereby confirms and agrees that 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 Effective Date each reference therein to the Credit Agreement shall refer to the Credit Agreement after giving effect to this Agreement. Without limiting the foregoing, each such Loan Guarantor waives all defenses, claims, counterclaims, rights of recoupment or set-off with respect to any of such Loan Guarantor's Obligations as provided in the Loan Documents.
ARTICLE V
CONDITIONS TO EFFECTIVENESS; EXPIRATION; CONDITION SUBSEQUENT
SECTION 5.1 Effective Date. This Agreement shall become effective on such date (herein called the "Effective Date") when the conditions set forth in this Section have been satisfied.
SECTION 5.1.1 Execution of Agreement. The Administrative Agent shall have received counterparts of this Agreement duly executed and delivered on behalf of the Borrowers, the Loan Guarantors, the Administrative Agent and the Required Lenders.
SECTION 5.1.2 Representations and Warranties. The representations and warranties made by the Borrowers pursuant to Article III shall be true and correct as of the Effective Date.
SECTION 5.1.3 Payment of Fees. The Administrative Agent and each Lender shall have received payment of all fees that are required to be paid pursuant to the fee letters entered into in connection with this Agreement.
SECTION 5.2 Expiration. If the Effective Date has not occurred on or prior to December 2, 2011 the agreements of the parties contained in this Agreement shall, unless otherwise agreed by the Required Lenders, terminate immediately on such date and without further action.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Cross-References. References in this Agreement to any Article or Section are, unless otherwise specified, to such Article or Section of this Agreement.
SECTION 6.2 Loan Document Pursuant to the Credit Agreement. This Agreement is a Loan Document executed pursuant to the Credit Agreement. Except as expressly provided for herein, all of the representations, warranties, terms, covenants and conditions
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contained in the Credit Agreement and each other Loan Document shall remain unamended or otherwise unmodified and in full force and effect.
SECTION 6.3 Limitation of Amendments. The amendments set forth in Article II shall be limited precisely as provided for herein and shall not be deemed to be a waiver of, amendment of, consent to or modification of any other term or provision of the Credit Agreement or of any term or provision of any other Loan Document or of any transaction or further or future action on the part of any Borrower or any other Loan Party which would require the consent of any of the Lenders under the Credit Agreement or any other Loan Document.
SECTION 6.4 Counterparts. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.
SECTION 6.5 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 6.6 Further Assurances. Each Borrower shall execute and deliver, and shall cause each other Loan Party to execute and deliver, from time to time in favor of the Administrative Agent and the Lenders such documents, agreements, certificates and other instruments as shall be necessary or advisable to effect the purposes of this Agreement.
SECTION 6.7 Costs and Expenses. The Borrowers agree to pay all reasonable costs and expenses of the Administrative Agent (including the reasonable fees and out-of-pocket expenses of legal counsel of the Administrative Agent) that are incurred in connection with the execution and delivery of this Agreement and the other agreements and documents entered into in connection herewith.
SECTION 6.8 GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH PERSON A PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT OR DOCUMENT ENTERED INTO IN CONNECTION HEREWITH. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR AGREEMENT, WRITTEN OR ORAL, WITH RESPECT HERETO.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| BORROWERS: THE XXXXX GROUP INC., a Pennsylvania corporation XXXXX APPAREL GROUP HOLDINGS, INC., a Delaware corporation XXXXX APPAREL GROUP USA, INC., a Delaware corporation JAG FOOTWEAR, ACCESSORIES AND RETAIL CORPORATION, a New Jersey corporation XXXXX INVESTMENT CO. INC., a Delaware corporation NINE WEST DEVELOPMENT CORPORATION, a Delaware corporation XXXXX JEANSWEAR GROUP, INC., a New York corporation XXXXX JEWELRY GROUP, INC., a Rhode Island corporation By /s/ Xxxxxx X. Xxxxxxxxx
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| XXXXX APPAREL GROUP CANADA, LP, an Ontario Limited Partnership By: XXXXX CANADA, INC., its General Partner By /s/ Xxxxx Xxxxxx
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| LOAN GUARANTORS: XXXXX DISTRIBUTION CORPORATION, a Delaware corporation XXXXX MANAGEMENT SERVICE COMPANY, a Delaware corporation XXXXX HOLDING, INC., a Delaware corporation By /s/ Xxxxxx X. Xxxxxxxxx
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| JPMORGAN CHASE BANK, N.A., as Revolving Lender, Issuing Bank and Administrative Agent By /s/ Xxxxx XxXxxxx
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| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as International Revolving Lender, Issuing Bank and Canadian Administrative Agent By /s/ Xxxxxxxx X. Xxxxxxxxx
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| X. X. XXXXXX EUROPE LIMITED, as European Administrative Agent By /s/ Xxx Xxxxx
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| GENERAL ELECTRIC CAPITAL CORPORATION, as a Revolving Lender By /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Duly Authorized Signatory
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| CITIBANK, N.A., as a Revolving Lender and Issuing Bank By /s/ Xxxxxxx Xxxxxx
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| BANK OF AMERICA, N.A., as a Revolving Lender By /s/ Xxxxx Xxxx
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| BANK OF AMERICA, N.A. (acting through its Canada branch), as a Revolving Lender By /s/ Xxxxxx Sales xx Xxxxxxx
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| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Revolving Lender and Issuing Bank By /s/ Xxxx Xxxxxx
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| SUNTRUST BANK, as a Revolving Lender
By /s/ Xxxxxxx Lotott
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| CIT BANK, as a Revolving Lender
By /s/ Xxxxxxxx Xxxxxx
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| PNC BANK, NATIONAL ASSOCIATION as a Revolving Lender By /s/ Xxxxxx Xxxxxxxxxxx
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| U.S. BANK NATIONAL ASSOCIATION, as a Revolving Lender By /s/ Xxxxxx Xxxxx
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| CAPITAL ONE LEVERAGE FINANCE CORP., as a Revolving Lender By /s/ Xxx Xxxxxx
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| HSBC BANK USA, N.A., as a Revolving Lender
By /s/ Xxxxxx X. Xxxxx
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| ROYAL BANK OF CANADA, as a Revolving Lender By /s/ Xxxx Xxxxxx
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| XXXXXXX SACHS LENDING PARTNERS LLC, as a Revolving Lender By /s/ Xxxxxxxx Xxxxxxx
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SCHEDULE I
| BORROWER/LOAN GUARANTOR | FINANCIAL OFFICER NAME & TITLE |
| THE XXXXX GROUP INC. |
Xxxxxx Xxxxxxxxx |
| XXXXX APPAREL GROUP HOLDINGS, INC. |
Xxxxxx Xxxxxxxxx |
| XXXXX APPAREL GROUP USA, INC. |
Xxxxxx Xxxxxxxxx |
| JAG FOOTWEAR, ACCESSORIES AND |
Xxxxxx Xxxxxxxxx |
| XXXXX INVESTMENT CO. INC. |
Xxxxxx Xxxxxxxxx |
| NINE WEST DEVELOPMENT CORPORATION |
Xxxxxx Xxxxxxxxx |
| XXXXX JEANSWEAR GROUP, INC. |
Xxxxxx Xxxxxxxxx |
| XXXXX JEWELRY GROUP, INC. |
Xxxxxx Xxxxxxxxx |
| XXXXX DISTRIBUTION CORPORATION |
Xxxxxx Xxxxxxxxx |
| XXXXX MANAGEMENT SERVICE COMPANY |
Xxxxxx Xxxxxxxxx |
| XXXXX HOLDING, INC. |
Xxxxxx Xxxxxxxxx |
