EXHIBIT 10.1
SECOND SUPPLEMENT TO NOTE PURCHASE AGREEMENTS
This SECOND SUPPLEMENT TO NOTE PURCHASE AGREEMENTS (the "Second
Supplemental Agreement") is made and dated as of May 16, 2000, by and among
Converse Inc. (the "Company"), and Libra Investments, Inc. ("Libra"), Foothill
Partners III, L.P. ("Foothill"), DDJ Canadian High Yield Fund ("DDJ Canadian"),
and B III Capital Partners, L.P. ("DDJ Capital") (Libra, Foothill, DDJ Canadian,
and DDJ Capital collectively the "Purchasers" or individually a "Purchaser").
WITNESSETH:
WHEREAS, the Company and the Purchasers are parties to several
substantially identical Note Purchase Agreements dated as of September 16, 1998
(collectively the "Note Purchase Agreements" or individually a "Note Purchase
Agreement"), pursuant to which the Company issued and sold its 15% senior
secured notes, in two series, in the aggregate principal amount of $28,642,687,
as more fully set forth therein (the "Secured Notes"); and
WHEREAS, the Note Purchase Agreements were supplemented in a Supplement to
Note Purchase Agreements dated as of November 15, 1999 (the "Supplemental
Agreement"), pursuant to which the parties (i) acknowledged the consent of the
Purchasers to the sale of certain Proprietary Rights by the Company, (ii) waived
certain provisions under the Note Purchase Agreements, and (iii) amended certain
provisions of the Note Purchase Agreements, as more fully set forth therein;
WHEREAS, the Company and the Purchasers desire to supplement further the
Note Purchase Agreements, as supplemented by the Supplemental Agreement
(collectively the "Supplemented Note Purchase Agreements" or individually a
"Supplemented Note Purchase Agreement"), in order to waive certain provisions
under the Supplemented Note Purchase Agreements and in order to amend and
confirm certain provisions of the Supplemented Note Purchase Agreements, as more
fully set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and on and subject to the terms and conditions
hereof, the parties agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all capitalized
terms shall have the respective meanings given to them in the Supplemented Note
Purchase Agreements.
SECTION 2. CERTIFICATIONS OF PURCHASERS. The Purchasers severally
represent and warrant as follows:
(a) Libra. Libra is (i) the purchaser and remains the holder of that
Series A Secured Note in the principal amount of $4,142,931 and (ii) the
party in interest as "Purchaser" under the related Supplemented Note
Purchase Agreement, and in such capacity Libra is authorized to extend
consents, waivers, and amendments with respect to its Supplemented Note
Purchase Agreement as set forth herein.
(b) Foothill. Foothill is (i) the purchaser and remains the holder of
that Series A Secured Note in the principal amount of $10,357,328 and (ii)
the party in interest as "Purchaser" under the related Supplemented Note
Purchase Agreement, and in such capacity Foothill is authorized to extend
consents, waivers, and amendments with respect to its Supplemented Note
Purchase Agreement as set forth herein.
(c) DDJ Canadian. DDJ Canadian is (i) the purchaser and remains the
holder of that Series A Secured Note in the principal amount of $4,045,408
and that Series B Secured Note in the aggregate principal amount of
$1,478,400 and (ii) the party in interest as "Purchaser" under the related
Supplemented Note Purchase Agreement, and in such capacity DDJ Canadian is
authorized to extend consents, waivers and amendments with respect to its
Supplemented Note Purchase Agreement as set forth herein.
(d) DDJ Capital. DDJ Capital is (i) the purchaser and remains the
holder of that Series A Secured Note in the principal amount of $6,311,920
and that Series B Secured Note in the aggregate principal amount of
$2,306,700 and (ii) the party in interest as "Purchaser" under the related
Supplemented Note Purchase Agreement, and in such capacity DDJ Capital is
authorized to extend consents, waivers and amendments with respect to its
Supplemented Note Purchase Agreement as set forth herein.
SECTION 3. WAIVER. The Purchasers hereby grant to the Company a waiver of
the requirements for minimum EBITDA under the provisions of Section 9.7 of the
Note Purchase Agreements, as supplemented by the Supplemental Agreement, for the
3 month period ending March 31, 2000, and hereby agree that the failure to
comply with such minimum EBITDA requirements for such 3 month period shall not
constitute a Default or an Event of Default under the Supplemented Note Purchase
Agreements.
SECTION 4. COVENANT. The Company covenants that the Company will not
redeem, repurchase, retire for value, or make any further payment of the
principal of or interest on the Subordinated Notes, unless and until the Secured
Notes shall have been paid in full or unless and until the Required Holders
shall have otherwise consented in writing to such payment.
SECTION 5. CONFIRMATION AND AMENDMENT.
(a) The Company confirms that in the event the Company shall transfer
any assets consisting of the Proprietary Rights (which the Company
acknowledges requires the written consent of the Required Holders pursuant
to Section 9.5(a) of the Note Purchase Agreements), then the Net Cash
Proceeds of such transfer shall be applied to the indebtedness and
obligations under the Revolving Credit Agreement and to the principal and
interest under the Secured Notes, within 5 Business Days of receipt, as
provided in Section 7.2 of the Note Purchase Agreements, as amended in this
Second Supplemental Agreement.
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(b) The provisions of subsection (a) of Section 7.2 of the Note
Purchase Agreements are deleted in their entirety, and the same shall be
replaced with the following:
Upon receipt by the Company of the Net Cash Proceeds from any
Asset Disposition which exceeds $250,000 individually or which,
together with the Net Cash Proceeds from other Asset Dispositions
during the same fiscal year, exceeds $1,000,000 in the aggregate, the
Company shall, within 5 days of the receipt of such Net Cash Proceeds,
prepay the Secured Notes in an amount equal to the lesser of (i) the
then outstanding aggregate principal amount of the Secured Notes and
(ii) the amount of such excess Net Cash Proceeds less, in either case,
the portion, if any, of such excess proceeds required to be applied to
the repayment of indebtedness and other obligations outstanding under
the Revolving Credit Agreement in accordance with the terms and
conditions thereof, in either case, together with accrued interest to
the date of such prepayment on the principal amount of the Secured
Notes so prepaid and all fees, expenses and other payments due to the
holders of the Secured Notes under the Note Documents. To the extent
necessary, any prepayment provided for herein shall be made with the
proceeds of advances under the Revolving Credit Agreement.
SECTION 6. CONDITION PRECEDENT. The effectiveness of this Second
Supplemental Agreement is expressly conditioned upon satisfaction of the
condition that the Required Lenders (as defined in the Revolving Credit
Agreement) under the Revolving Credit Agreement shall have waived non-compliance
with the requirements of Section 7.7 of the Revolving Credit Agreement with
respect to minimum EBITDA of the Company for the 12 month period ending March
31, 2000.
SECTION 7. CERTIFICATION OF THE COMPANY. The Company represents and
warrants that the Company is, upon the effectiveness of this Second Supplemental
Agreement, in compliance with the terms and provisions set forth in the
Supplemented Note Purchase Agreements, as hereby amended, and in compliance with
the payment obligations under the Secured Notes.
SECTION 8. PAYMENT. The Company shall pay the Purchasers which are
signatories to this Second Supplemental Agreement a supplement fee, which
supplement fee shall be paid by means of the remittance to those Purchasers of
up to $100,000 in the aggregate, and which supplement fee shall be paid at the
time of the full repayment of the principal balance of the Secured Notes,
accompanied by interest accruing on the unpaid balance of such supplement fee at
the rate of 15% per annum from the date hereof until the date paid or prepaid.
The amount to be so remitted to each such Purchaser as its share of the
supplement fee and related interest shall be determined by multiplying $100,000
by the percentage calculated by dividing the principal amount of the Secured
Notes held by such Purchaser as of the date hereof by the aggregate principal
amount of the Secured Notes held by all the Purchasers as of the date hereof.
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SECTION 9. OBLIGATIONS IN FULL FORCE AND EFFECT. Except as herein amended
or otherwise provided (by consent or waiver), the Note Purchase Agreements, as
supplemented by the Supplemental Agreement, and the Ancillary Documents shall
remain in full force and effect.
SECTION 10. COUNTERPARTS. This Second Supplemental Agreement may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same documents.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Supplemental Agreement as of the day and year specified above.
COMPANY:
CONVERSE INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Sr. VP and CFO
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PURCHASERS:
LIBRA INVESTMENTS, INC.
By:
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Name:
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Title:
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FOOTHILL PARTNERS III, L.P.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: GP
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DDJ CANADIAN HIGH YIELD FUND
By: DDJ Capital Management, LLC, its
attorney-in-fact
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Member
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B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Member
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