EXHIBIT 10.13
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT dated as of April 23,
2002 ("Amendment No. 1 ") by and between CONVERSE INC., formerly known as
Footwear Acquisition, Inc., a Delaware corporation, ("Borrower") and CONGRESS
FINANCIAL CORPORATION, a Delaware corporation ("Lender").
W I T N E S S E T H
WHEREAS, Borrower and Lender have entered into financing arrangements
pursuant to which Lender has made and may make loans and advances and provide
other financial accommodations to Borrower as set forth in the Loan and Security
Agreement, dated April 30, 2001, by and between Borrower and Lender (as the same
now exists and may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced, the "Loan Agreement") and the
agreements, documents and instruments at any time executed and/or delivered in
connection therewith or related thereto (collectively, together with the Loan
Agreement, the "Financing Agreements"); and
WHEREAS, Borrower and Lender have agreed to certain amendments to the Loan
Agreement as more particularly contained herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
and covenants set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions.
1.1 Additional Definitions. As used herein, the following terms shall have
the respective meanings given to them below and the Loan Agreement shall be
deemed and is hereby amended to include, in addition and not in limitation, each
of the following definitions:
""Amendment No. 1" shall mean this Amendment No. 1 to
the Loan and Security Agreement by and among Borrower
and Lender, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed,
restated or replaced."
1.2 Amendment to Definitions.
(a) The definition of "Borrowing Base" set forth in Section 1.8 of
the Loan Agreement is hereby amended and restated in its entirety as follows:
"1.8 "Borrowing Base" shall mean, at any time, the
amount equal to:
(a) eighty-five (85%) percent of the Net Amount of Eligible
Accounts, plus
(b) the lesser of (i) the lesser of (A) fifty-eight (58%)
percent of the Value of Eligible Inventory and (B)
eighty-five (85%) percent of the Net Recovery Percentage
multiplied by the Value of Eligible Inventory (the
"Inventory Advance Rate"), and (ii) $40,000,000, plus
(c) the License Income Availability less
(d) any Reserves.
For purposes only of applying the sublimit on Loans based on
Eligible Inventory set forth in clause (b)(ii) above, Lender
may treat the then undrawn amounts of outstanding Letter of
Credit Accommodations for the purpose of purchasing Eligible
Inventory as Loans to the extent Lender is in effect basing
the issuance of the Letter of Credit Accommodations on the
Value of the Eligible Inventory being purchased with such
Letter of Credit Accommodations. In determining the actual
amounts of such Letter of Credit Accommodations to be so
treated for purposes of the sublimit, the outstanding Loans
and Reserves shall be attributed first to any components of
the lending formulas set forth above that are not subject to
such sublimit, before being attributed to the components of
the lending formulas subject to such sublimit."
(b) The definition of "Eligible Accounts" set forth in Section 1.21
of the Loan Agreement is hereby amended by deleting subsection 1.21 (o) thereof
and substituting the following therefor:
"(o) such Accounts of a single account debtor or its affiliates do
not constitute more than ten (10%) percent of all otherwise
Eligible Accounts, except that (i) the Accounts of the Account
Debtors set forth on Schedule 1.21 (o) or their respective
Affiliates may constitute up to twenty (20%) percent of all
otherwise Eligible Accounts, and (ii) the Accounts of Foot
Locker, Inc. may constitute up to the lesser of (A) fifty
(50%) percent of all otherwise Eligible Accounts or (B) Twenty
Million ($20,000,000) Dollars (but the portion of the Accounts
not in excess of such percentages or amount, as applicable,
may be deemed Eligible Accounts);"
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(c) The definition of "Interest Rate" set forth in Section 1.42 of
the Loan Agreement is hereby amended by deleting subsection 1.42(a) thereof and
substituting the following therefor:
"(a) Subject to clauses (b), (c), and (d) of this
definition below:
(i) as to Prime Rate Loans, a rate equal to one-half (-1/2%)
percent per annum ("Prime Rate Margin") plus the Prime
Rate, and
(ii) as to Eurodollar Rate Loans, a rate equal to two and
one-half (2 -1/2%) percent per annum (the "Eurodollar
Rate Margin") plus the Adjusted Eurodollar Rate (in each
case, based on the Eurodollar Rate applicable for the
Interest Period selected by Borrower as in effect three
(3) Business Days after the date of receipt by Lender of
the request of Borrower for such Eurodollar Rate Loans
in accordance with the teams hereof, whether such rate
is higher or lower than any rate previously quoted to
Borrower).
Notwithstanding the foregoing, in the event that
Borrower shall not maintain a Consolidated Pre-Tax Net
Income of greater than one ($1.00) Dollar in any fiscal
year, Interest Rate shall mean (a) subject to clauses
(b), (c), and (d) of this definition below: (i) as to
Prime Rate Loans, a rate equal to three-quarters (-3/4%)
percent per annum ("Prime Rate Margin") plus the Prime
Rate, and (ii) as to Eurodollar Rate Loans, a rate equal
to two and three-quarters (2 -3/4%) percent per annum
(the "Eurodollar Rate Margin") plus the Adjusted
Eurodollar Rate (in each case, based on the Eurodollar
Rate applicable for the Interest Period selected by
Borrower as in effect three (3) Business Days after the
date of receipt by Lender of the request of Borrower for
such Eurodollar Rate Loans in accordance with the terms
hereof, whether such rate is higher or lower than any
rate previously quoted to Borrower)."
(d) Effective as of April 1, 2002, the definition of "License Income
Availability" set forth in Section 1.48 of the Loan Agreement is hereby amended
and restated in its entirety as follows:
"1.48 "License Income Availability" shall mean $10,000,000.
The License Income Availability shall reduce on a
monthly basis as follows: commencing May 1, 2002 and on
the first (1st) day of each month thereafter, by an
amount equal to $277,777.00 per month."
(e) The definition of "Maximum Credit" set forth in Section 1.53 of
the Loan Agreement is hereby amended and restated in its entirety as follows:
"1.53 "Maximum Credit" shall mean the amount of
$85,000,000."
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1.3 Interpretation. For purposes of this Amendment No. 1, all terms used
herein, including but not limited to, those terms used and/or defined herein or
in the recitals hereto shall have the respective meanings assigned thereto in
the Loan Agreement, as amended by this Amendment No. 1.
Section 2. Amendments to Loan Agreement.
2.1 Section 9.18 of the Loan Agreement is hereby amended and restated in
its entirety as follows:
"9.18 Adjusted Net Worth. Borrower shall, at all times, maintain
Adjusted Net Worth of not less than $38,000,000.00, provided
that the amount of the Adjusted Net Worth required to be
maintained by Borrower under this Section 9.18 shall be
decreased, on a dollar-for-dollar basis, by the amount of any
dividend payments made pursuant to and in accordance with the
terms and conditions of Sections 9.11 (b) and 9.11(c)."
2.2 Section 9 of the Loan Agreement is hereby amended by adding the
following subsection to such Section at the end thereof:
"9.23 Minimum Excess Availability. So long as any of the Obligations
remain outstanding, Borrower shall at all times maintain
Excess Availability, as determined by Lender, in an amount
equal to not less than Five Million ($5,000,000) Dollars."
Section 3. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the other Financing Agreements, Borrower
hereby represents, warrants and covenants with and to Lender that this Amendment
No. 1 has been duly executed and delivered by Borrower and is in full force and
effect as of the date of this Amendment No. 1 and the agreements and obligations
of Borrower contained herein constitute legal, valid and binding obligations of
Borrower enforceable against Borrower in accordance with their respective terms.
Section 4. Conditions Precedent. The effectiveness of the amendments
contained herein shall be subject to, Lender having received, in form and
substance reasonably satisfactory to Lender: (a) an original of this Amendment
No. 1, duly authorized, executed and delivered by Borrower and Lender, and (b)
an original of the Amendment Fee Letter, dated of even date herewith, duly
authorized, executed and delivered by Borrower and Lender.
Section 5. Provisions of General Application.
5.1 Effect of this Amendment. Except as modified pursuant hereto, no
other changes or modifications to the Loan Agreement are intended or implied
and in all other respects the Loan Agreement is hereby specifically ratified,
restated and confirmed by all parties hereto as of the effective date
hereof. To the extent of conflict between the terms of this Amendment No. 1
and the Loan Agreement, the terms of this Amendment No. 1 shall control. The
Loan Agreement and this Amendment No. 1 shall be read and construed as one
agreement.
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5.2 Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be
reasonably necessary or desirable to effectuate the provisions and purposes
of this Amendment No. 1.
5.3 Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York, but excluding any principles of
conflicts of law or other rule of law that would result in the application of
the law of any jurisdiction other than the laws of the State of New York.
5.4 Binding Effect. This Amendment No. l shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
5.5 Survival of Representations and Warranties. All representations
and warranties made in this Amendment No. 1 or any other document famished in
connection with this Amendment No. 1 shall survive the execution and delivery
of this Amendment No. 1 and the other documents, and no investigation by
Lender shall affect the representations and warranties or the right of Lender
to rely upon them.
5.6 Counterparts. This Amendment No. 1 may be executed in any number
of counterparts, but all of such counterparts shall together constitute but
one and the same agreement. In making proof of this Amendment No. 1, it
shall not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto. This Amendment No. 1 may be
executed and delivered via telecopier with the same force and effect as if it
were a manually executed and delivered counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered by their authorized officers as of the date and
year fast above written.
CONVERSE INC., formerly known as
Footwear Acquisition, Inc.
By: /s/ Xxxxxxx Xxxxx
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Title: Co-Chairman Converse Inc.
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AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ signature illegible
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Title: Vice President
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