SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10
SECOND
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
This
Second Amendment to Amended and Restated Credit Agreement (the “Second
Amendment”) is made as of the 14th
day of
February, 2006, by and among
XXXXX
SHOE COMPANY, INC., a corporation organized under the laws of the State of
New
York having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, as Lead Borrower for the Borrowers, being
said
XXXXX SHOE COMPANY, INC.,
XXXXXX
XXXX ASSOCIATES, INC., a corporation organized under the laws of the State
of
Missouri having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000;
XXXXX
GROUP RETAIL, INC., a corporation organized under the laws of the Commonwealth
of Pennsylvania having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000;
XXXXX
SHOE INTERNATIONAL CORP. (f/k/a Xxxxx Shoe International, LLC), a corporation
organized under the laws of the State of Delaware having a place of business
at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
XXXXXX
XXXXX & CO., a corporation organized under the laws of the State of Missouri
having a place of business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
and
XXXXXXX
FOOTWEAR GROUP LLC, a Delaware limited liability company having a place of
business at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000;
XXXXX
SHOE COMPANY OF CANADA LTD, a Canadian corporation having a place of business
at
0000 Xxxxxxx Xxxx, Xxxxx, Xxxxxxx, Xxxxxx X0X 0X0, as a Loan Party but not
as
Borrower;
the
LENDERS party hereto; and
BANK
OF
AMERICA, N.A., as Lead Issuing Bank, a national banking association having
a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
and
BANK
OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the Lenders
and
the Secured Parties, a national banking association, having an office c/o
Fleet
Retail Group, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
and
1
LASALLE
BANK NATIONAL ASSOCIATION, as Syndication Agent; and
XXXXX
FARGO FOOTHILL, LLC, as Documentation Agent
in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS,
the Lead Borrower, the other Borrowers (other than Xxxxxxx Footwear Group
LLC
(“Xxxxxxx Footwear”)), Xxxxx Canada, the Administrative Agent, the Collateral
Agent, the Lenders, the Lead Issuing Bank, the Syndication Agent, and the
Documentation Agent have entered into an Amended and Restated Credit Agreement
dated as of July 21, 2004, as amended by a First Amendment thereto, dated
as of
March 14, 2005 (as amended so and as in effect, the “Credit Agreement”);
and
WHEREAS,
effective April 13, 2005, Xxxxx Shoe International, LLC converted to a
corporation and is now known as Xxxxx Shoe International Corp.; and
WHEREAS,
pursuant to a Joinder to Credit Agreement, dated as of April 22, 2005, among
Xxxxxxx Footwear, Xxxxxxx Footwear Retail, LLC (“Xxxxxxx Retail”) and the
Administrative Agent, Xxxxxxx Footwear and Xxxxxxx Retail became Borrowers
under
the Credit Agreement; and
WHEREAS,
effective June 30, 2005, Xxxxxxx Retail merged with and into Xxxxx Retail
with
Xxxxx Retail as the surviving entity; and
WHEREAS,
the Lead Borrower, the other Borrowers, Xxxxx Canada, the Administrative
Agent ,
the Collateral Agent, the Lenders, the Lead Issuing Bank, the Syndication
Agent,
and the Documentation Agent have agreed to amend certain provisions of the
Credit Agreement as set forth herein.
NOW
THEREFORE, it is hereby agreed as follows:
| 1. |
Definitions:
All capitalized terms used herein and not otherwise defined shall
have the
same meaning herein as in the Credit Agreement.
|
| 2. |
Amendment
to Article 1.
The provisions of Section 1.1 of the Credit Agreement are hereby
amended
as follows:
|
2
| a. |
The
table in the definition of “Applicable Margin” is hereby deleted in its
entirety and the following substituted in its
stead:
|
|
Level
|
Average
Excess Availability
|
Prime
Rate Loans
|
LIBO
Loans
|
|
I
|
Less
than or equal to $50,000,000
|
0%
|
1.75%
|
|
II
|
Greater
than $50,000,000 but less than or equal to $75,000,000
|
0%
|
1.50%
|
|
III
|
Greater
than $75,000,000 but less than or equal to $150,000,000
|
0%
|
1.25%
|
|
IV
|
Greater
than $150,000,000
|
0%
|
1.00%
|
All
other
provisions of the definition of “Applicable Margin” remain in effect as
written.
| b. |
The
definition of “Eligible Accounts” is hereby amended by deleting clause (u)
thereof in its entirety and substituting the following in its
stead:
|
(u) Accounts
owed by a Person, or group of affiliated Persons, which is obligated to the
Loan
Parties respecting Accounts the aggregate unpaid balance of which exceeds
twenty
percent (20.0%) of the aggregate unpaid balance of all Accounts owed to the
Loan
Parties at such time by all of the Loan Parties’ account debtors, but only to
the extent of such excess; provided
that,
for purposes of this clause (u), all Accounts due from Federated Department
Stores, Inc. (or any successor thereto) shall, subject to the other provisions
of this definition, be included as Eligible Accounts notwithstanding the
aggregate of such Accounts exceeds the foregoing limitation as long as the
debt
rating for Federated Department Stores, Inc. (or its successor) by S&P (or
any successor thereto) is BBB- or better; provided
further,
if
S&P no longer provides such rating, the debt rating for Federated Department
Stores, Inc. (or any successor thereto) by Xxxxx’x Investor Service, Inc. (or
any successor thereto) is Baa3 or better;
| c. |
The
following new definition is hereby added to Section 1.1 of the
Credit
Agreement in its appropriate alphabetical
order:
|
“Foreign
Subsidiary” means any Subsidiary other than a Domestic Subsidiary.
| 3. |
Amendments
to Article 5.
The provisions of Section 5.9(b) of the Credit Agreement are hereby
amended by deleting the final sentence thereof and substituting
the
following in its stead:
|
3
Notwithstanding
the foregoing, as long as no Event of Default exists and is continuing, the
Agents shall not undertake any such appraisals or commercial finance
examinations at the Loan Parties’ expense, as long as Excess Availability is at
least $100,000,000. If Excess Availability is less than $100,000,000, the
Agents
may undertake up to one appraisal and two commercial finance examinations
in any
Fiscal Year at the Loan Parties’ expense. Furthermore, regardless of the then
Excess Availability, the Agents may undertake appraisals and commercial finance
examinations, at the Agents’ expense, as they in their discretion deem necessary
or appropriate. If an Event of Default exists and is continuing, the Agents
may,
at any time, undertake appraisals and commercial finance examinations, at
the
Loan Parties’ expense, as they in their discretion deem necessary or
appropriate.
| 4. |
Amendments
to Article 6.
The provisions of Article 6 are amended as
follows:
|
| a. |
The
provisions of Section 6.1(h) are hereby amended by deleting subsection
(h)
in its entirety and substituting a new subsection (h) as set forth
below:
|
(h) Unsecured
Indebtedness of a Loan Party to one or more Foreign Subsidiaries in an aggregate
principal amount at any one time outstanding not in excess of
$80,000,000;
| b. |
The
provisions of Section 6.4(g) are hereby amended by deleting subsection
(g)
in its entirety and substituting a new subsection (g) as set forth
below:
|
(g) Investments
by a Loan Party in a Subsidiary which is not a Loan Party not in excess of
$10,000,000 after the Closing Date;
| c. |
The
provisions of Section 6.4 of the Credit Agreement are hereby amended
by
deleting subsection (j) in its entirety and substituting a new
subsection
(j) as set forth below:
|
(j) Additional
Investments by the Loan Parties in Xxxxx.xxx (i)
consisting of trade payables due a Loan Party from Xxxxx.xxx which are not
current in an aggregate outstanding amount not to exceed $17,000,000 at any
time
and (ii)
other
Investments in Xxxxx.xxx, provided
that at
immediately before and after giving effect any such Investment described
in this
clause (ii), the Pro Forma Conditions are satisfied; and
| 5. |
Amendments
to Schedules.
|
| a. |
Schedule
3.16 to the Credit Agreement is hereby deleted in its entirety
and as new
Schedule 3.16 in the form annexed hereto substituted in its
stead.
|
| b. |
Schedule
6.1 is hereby amended by deleting item 5
thereon.
|
4
| 6. |
Conditions
to Effectiveness.
|
| a. |
Paragraph
1
and Paragraphs 3
through and including 5
of
this Second Amendment shall not be effective until each of the
following
conditions precedent have been fulfilled to the satisfaction of
the
Administrative Agent:
|
| i. |
This
Second Amendment shall have been duly executed and delivered by
the
Borrowers, Xxxxx Canada, the Administrative Agent, the Collateral
Agent
and the Required Lenders. The Administrative Agent shall have received
a
fully executed copy hereof and of each other document required
hereunder.
|
| ii. |
All
action on the part of the Borrowers necessary for the valid execution,
delivery and performance by the Borrowers of this Second Amendment
shall
have been duly and effectively taken. The Administrative Agent
shall have
received from the Borrowers true copies of their respective certificate
of
the resolutions authorizing the transactions described herein,
each
certified by their secretary or other appropriate officer to be
true and
complete.
|
| iii. |
The
Borrowers shall have reimbursed the Administrative Agent for all
reasonable out-of-pocket expenses incurred in connection herewith,
including, without limitation, reasonable attorneys’
fees.
|
| iv. |
No
Default or Event of Default shall have occurred and be
continuing.
|
| v. |
The
Borrowers shall have provided such additional instruments, documents,
and
opinions of counsel to the Administrative Agent as the Administrative
Agent and their counsel may have reasonably
requested.
|
| b. |
Paragraph
2
of
this Second Amendment shall not be effective until each of the
following
conditions precedent have been fulfilled to the satisfaction of
the
Administrative Agent:
|
| i. |
This
Second Amendment shall have been duly executed and delivered by
the
Borrowers, Xxxxx Canada, the Administrative Agent, the Collateral
Agent
and the Lenders. The Administrative Agent shall have received a
fully
executed copy hereof and of each other document required
hereunder.
|
| ii. |
Each
of the conditions set forth in clauses a(ii)
through a(v)
of this Paragraph 6
shall have been satisfied.
|
| 7. |
Miscellaneous.
|
5
| a. |
Except
as provided herein, all terms and conditions of the Credit Agreement
and
the other Loan Documents remain in full force and effect. The Borrowers
each hereby ratify, confirm, and reaffirm all of the representations,
warranties and covenants therein
contained.
|
| b. |
This
Second Amendment may be executed in several counterparts and by
each party
on a separate counterpart, each of which when so executed and delivered,
each shall be an original, and all of which together shall constitute
one
instrument. Delivery of an executed counterpart of a signature
page hereto
by telecopy shall be effective as delivery of a manually executed
counterpart hereof.
|
| c. |
This
Second Amendment expresses the entire understanding of the parties
with
respect to the matters set forth herein and supersedes all prior
discussions or negotiations hereon.
|
| d. |
6
IN
WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be
executed and their seals to be hereto affixed as the date first above written.
“The
Borrowers”
XXXXX
SHOE COMPANY, INC.
XXXXXX
XXXX ASSOCIATES, INC.
XXXXX
GROUP RETAIL, INC.
XXXXX
SHOE INTERNATIONAL CORP.
XXXXXX
XXXXX & CO.
XXXXXXX
FOOTWEAR GROUP LLC
as
to
each of the foregoing
By_
/s/
Xxxxxx X. Rosen_____
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President and
Chief
Financial Officer
“Non-Borrower
Loan Party”
XXXXX
SHOE COMPANY OF CANADA LTD
By
_
/s/
Xxxxxx X. Rosen_____
Name:
Xxxxxx X. Xxxxx
Title:
Senior Vice President
7
BANK
OF
AMERICA, N.A., as
Administrative
Agent, Collateral Agent,
Lead
Issuing Bank and Lender
By:______/s/
Xxxxx Ward_____________
Print
Name: Xxxxx Xxxx
Title:
Managing Director
LASALLE
BANK NATIONAL ASSOCIATION
By:
/s/
Xxxxxxxx X. Xxxxxxx
Print
Name: Xxxxxxxx X. Xxxxxxx
Title:
Vice President
XXXXX
FARGO FOOTHILL, LLC
By:
/s/
Xxxxx Xxxxxxx
Print
Name: Xxxxx Xxxxxxx
Title:
Assistant Vice President
GMAC
COMMERCIAL FINANCE LLC
By
/s/
Xxxxx Xxxxx
Print
Name: Xxxxx Xxxxx
Title:
Vice President
THE
CIT
GROUP/BUSINESS CREDIT, INC.
By:
/s/
Xxxxxx Xxxxxx
Print
Name: Xxxxxx Xxxxxx
Title:
Vice President
8
NATIONAL
CITY BUSINESS CREDIT, INC.
By:
/s/
Xxxxxxx X. Xxxxxx
Print
Name: Xxxxxxx X. Xxxxxx
Title:
Vice President
PNC
BANK,
NATIONAL ASSOCIATION
By:
/s/
Xxxxx X. Xxxxxx
Print
Name: Xxxxx X. Xxxxxx
Title:
Vice President
TRANSAMERICA
BUSINESS CAPITAL CORPORATION
By:
/s/
Xxxxxx X. Xxxxxxx
Print
Name: Xxxxxx X. Xxxxxxx
Title:
Duly Authorized Signatory
AMSOUTH
BANK
By:
/s/
Xxxxxxx Xxxxxxx
Print
Name: Xxxxxxx Xxxxxxx
Title:
Attorney in Fact
SUN
TRUST
BANK
By:
/s/
Xxxxxx X. Xxxxxxxx
Print
Name: Xxxxxx X. Xxxxxxxx
Title:
Vice President
9
XXXXXXX
BUSINESS CREDIT CORPORATION
By:
/s/
Xxxxxxxx Xxxxx
Print
Name: Xxxxxxxx Xxxxx
Title:
Vice President
SIEMENS
FINANCIAL SERVICES, INC.
By:
/s/
Xxxxx Xxxxxx
Print
Name: Xxxxx Xxxxxx
Title:
Vice President -- Credit
FIRST
BANK
By:
/s/
Xxxxx X. Xxxxxx
Print
Name: Xxxxx X. Xxxxxx
Title:
Vice President
RZB
FINANCE LLC
By:
/s/
Xxxxxxxxx Xxxxx
Print
Name: Xxxxxxxxx Xxxxx
Title:
Group Vice President
By:
/s/
Xxxx X. Xxxxxxx
Print
Name: Xxxx X. Xxxxxxx
Title:
First Vice President
THE
GOVERNOR & COMPANY OF
THE
BANK OF IRELAND
By:
/s/
Xxxxx Xxxxx
Print
Name: Xxxxx Xxxxx
Title:
Authorized Signatory
10
By:
/s/
Xxxxx Xxxxxxxx
Print
Name: Xxxxx Xxxxxxxx
Title:
Authorized Signatory
11
XXXXX
SHOE COMPANY, INC.
SCHEDULE
3.16 TO AMENDED AND RESTATED CREDIT AGREEMENT
AFFILIATE
TRANSACTIONS
As
of May
20, 2004, Xxxxx.xxx, Inc. had an intercompany balance of approximately $2.3
million owed to the Loan Parties. This balance will fluctuate over time and
is
not expected to exceed $17.0 million.
12
