EXHIBIT (10)a.
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this "Amendment") is
entered into as of April 12, 2005 among (i) GENESCO INC., a Tennessee
corporation (the "Borrower"), (ii) the subsidiaries of the Borrower identified
as Guarantors on the signature pages hereto, (iii) the Lenders identified on the
signature pages hereto and (iv) BANK OF AMERICA, N.A., as Administrative Agent
(the "Administrative Agent"). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Credit
Agreement referred to below.
RECITALS
A. A Credit Agreement dated as of April 1, 2004 (as amended or
modified, the "Credit Agreement") has been entered into by and among the
Borrower, the Guarantors party thereto (the "Guarantors"), the financial
institutions party thereto (the "Lenders") and the Administrative Agent.
B. The Borrower, the Guarantors and the Required Lenders have agreed to
an amendment and waiver of the terms of the Credit Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Section 8.12 of the Credit Agreement. Section 8.12 of
the Credit Agreement is hereby amended by replacing such section in its entirety
with the following:
"8.12 CAPITAL EXPENDITURES.
Make or become legally obligated to make any expenditure in respect
of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged
to current operations and net of any tenant allowances or other payments,
credits or reimbursements related to capital expenditures for leasehold
improvements), except for capital expenditures in the ordinary course of
business not exceeding, in the aggregate for the Borrower and it
Subsidiaries during each fiscal year period set forth below, the amount
set forth opposite such fiscal year period:
FISCAL YEAR PERIOD AMOUNT
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2005 through 2006 (combined) $91,000,000
2007 $45,000,000
2008 $50,000,000
2009 $50,000,000
; provided, however, that so long as no Default has occurred
and is continuing or would result from such expenditure, any portion
of any amount set forth above not to exceed $3,000,000 per fiscal
year period, if not expended in the fiscal year period for which it
is permitted above, may be carried over for expenditure in the
immediately succeeding fiscal year period."
2. Waiver. The Borrower has informed the Administrative Agent that due
to a change in the interpretation of the GAAP requirements for lease accounting
it intends to restate certain of its prior period financial statements
(including, without limitation, the Audited Financial Statements for the fiscal
year ending as of January 31, 2004 which have previously been delivered to the
Administrative Agent and the Lenders in connection with the Credit Agreement)
(collectively, the "Prior Financial Statements"). The Borrower has asked the
Required Lenders to waive any Default or Event of Default that exists or would
otherwise result from a misrepresentation with respect to Sections 6.05(a)(i),
(ii) and 6.05(d) arising from such restatement of the Prior Financial
Statements. The Required Lenders hereby grant a waiver of any Default or Event
of Default that exists or would otherwise result from a misrepresentation with
respect to Sections 6.05(a)(i), (ii) or 6.05(d) as a result of the restatement
of the Prior Financial Statements in connection with the changes in lease
accounting or circumstances leading to such restatement to address such changes
in lease accounting.
3. Condition Precedent to Effectiveness. The amendment to and waiver of
the Credit Agreement set forth herein shall be deemed effective as of the date
hereof once the Administrative Agent has received from the Loan Parties and the
Required Lenders duly executed counterparts of this Amendment.
4. Representations and Warranties. Each Loan Party hereby represents
and warrants to the Administrative Agent and the Lenders that, upon giving
effect to this Amendment (a) no Default or Event of Default exists and (b) all
of the representations and warranties set forth in the Loan Documents are true
and correct in all material respects as of the date hereof (except for those
that expressly state that they are made as of an earlier date, in which case
they shall be true and correct as of such earlier date).
5. Ratification of Credit Agreement. Except as expressly modified and
amended in this Amendment, all of the terms, provisions and conditions of the
Loan Documents shall remain unchanged and in full force and effect. The term
"this Agreement" or "Credit Agreement" and all similar references as used in
each of the Loan Documents shall hereafter mean the Credit Agreement as amended
by this Amendment. Except as herein specifically agreed, the Credit Agreement is
hereby ratified and confirmed and shall remain in full force and effect
according to its terms.
6. Authority/Enforceability. Each of the Loan Parties hereto represents
and warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
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(b) This Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforceability
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Amendment. The execution, delivery and
performance by such Person of this Amendment do not and will not conflict
with, result in a breach of or constitute a default under the articles of
incorporation, bylaws or other organizational documents of any Loan Party
or any of its Subsidiaries or any indenture or other material agreement or
instrument to which such Person is a party or by which any of its
properties may be bound or the approval of any Governmental Authority
relating to such Person except as could not reasonably be expected to have
a Material Adverse Effect.
7. Expenses. The Borrower agrees to pay all reasonable costs and
expenses in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx PLLC, special counsel to the Administrative Agent.
8. Counterparts/Telecopy. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE.
10. Entirety. This Amendment and the other Loan Documents embody the
entire agreement between the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof. These Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no oral agreements between the parties.
11. Acknowledgment of Guarantors. The Guarantors acknowledge and consent
to all of the terms and conditions of this Amendment and agree that this
Amendment and any documents executed in connection herewith do not operate to
reduce or discharge the Guarantors' obligations under the Credit Agreement or
the other Loan Documents.
12. Affirmation of Liens. Each Loan Party affirms the liens and security
interests created and granted by it in the Loan Documents (including, but not
limited to, the Security Agreement, the Mortgage Instruments and the Control
Agreements) and agrees that this Amendment shall in no manner adversely affect
or impair such liens and security interests.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment, to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER: GENESCO INC.
By: /s/Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
GUARANTORS: GENESCO BRANDS INC.,
a Delaware corporation
By: /s/Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: President
HAT WORLD CORPORATION,
a Delaware corporation
By: /s/Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
HAT WORLD INC.,
a Minnesota corporation
By: /s/Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., in its capacity
as Administrative Agent
By: /s/Xxx Honey
------------------------
Name: Xxx Honey
Title: Senior Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
LENDERS: BANK OF AMERICA, N.A.,
as a Lender and L/C Issuer
By: /s/Xxx Honey
------------------------
Name: Xxx Honey
Title: Senior Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
LASALLE BANK NATIONAL ASSOCIATION
By: /s/Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
XXXXX FARGO FOOTHILL, LLC
By: /s/Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
NATIONAL CITY BANK
By: /s/Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
SUN TRUST BANK
By: /s/Xxxxx X. Xxxxx
-----------------
Name: Xxxxx X. Xxxxx
Title: Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
U.S. BANK NATIONAL ASSOCIATION
By: /s/Xxxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
BRANCH BANKING & TRUST COMPANY
By: /s/Xxxxxxx X. Xxxxxx
--------------------
Name: Xxxxxxx X. Xxxxxx
Title: Banking Officer
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
FIFTH THIRD BANK
By: /s/Xxxxx X. Xxxxx
-----------------
Name: Xxxxx X. Xxxxx
Title: Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
PNC BANK NATIONAL ASSOCIATION
By: /s/Xxxxxxx X. Xxxxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
First Amendment to Credit Agreement and Waiver
Genesco Inc.
April 2005
