AMENDMENT NO. 1 TO THE AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT
EXHIBIT 10.31
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED
FIVE-YEAR CREDIT AGREEMENT
Dated as of November 17, 2004
AMENDMENT NO. 1 (this "Amendment") TO THE AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT among ▇▇▇▇▇ Apparel Group USA, Inc., a Pennsylvania corporation (the "Borrower"), the Additional Obligors referred to therein, the banks, financial institutions and other institutional lenders parties to the Five-Year Credit Agreement referred to below (collectively, the "Lenders") and Wachovia Bank, National Association, as agent (the "Administrative Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Additional Obligors, the Lenders, the Administrative Agent and other parties thereto have entered into an Amended and Restated Five-Year Credit Agreement dated as of June 15, 2004 (the "Five-Year Credit Agreement"). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Five-Year Credit Agreement.
(2) The Borrower has requested that the Lenders agree to add ▇▇▇▇▇ Retail Corporation as an Additional Obligor under the Five-Year Credit Agreement.
(3) The Required Lenders are, on the terms and conditions stated below, willing to grant the request of the Borrower and the Borrower and the Required Lenders have agreed to amend the Five-Year Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Five-Year Credit Agreement. The Five-Year Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.1 is amended by inserting in the appropriate alphabetical order the following definition:
"▇▇▇▇▇ Retail" means ▇▇▇▇▇ Retail Corporation, a New Jersey corporation.
(b) Section 1.1 is further amended by amending the definition of "Additional Obligors" in full to read as follows:
"Additional Obligors" means the collective reference to ▇▇▇▇▇ Apparel Group, ▇▇▇▇▇ Apparel Group Holdings, ▇▇▇▇▇▇, Ltd., Nine West Footwear and ▇▇▇▇▇ Retail in their capacities as co-obligors under this Agreement.
(c) Exhibit A-1 of the Five-Year Credit Agreement is amended in full to read as set forth as Exhibit A-1 to this Amendment.
(d) Exhibit A-2 of the Five-Year Credit Agreement is amended in full to read as set forth as Exhibit A-2 to this Amendment.
SECTION 2. Condition Subsequent. By execution below, ▇▇▇▇▇ Retail hereby covenants and agrees that it will (a) provide an allonge endorsement to each Lender that has requested a Revolving Credit Note in accordance with Section 2.4(c) of the Five-Year Credit Agreement promptly after receipt of such a request from such Lender and (b) deliver to the Administrative Agent, not later than December 1, 2004, certificates of incumbency, certified resolutions, articles of incorporation and bylaws, and opinions of counsel substantially similar to those required by Section 6.2(b) of the Five-Year Credit Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent.
SECTION 3. Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, on or before November 17, 2004 the Administrative Agent shall have received counterparts of this Amendment executed by the Credit Parties and the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment. This Amendment is subject to the provisions of Section 14.11 of the Five-Year Credit Agreement.
SECTION 4. Representations and Warranties of the Credit Parties. The Credit Parties represent and warrant as follows:
(a) Each of the Credit Parties is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by each Credit Party of this Amendment and the performance by each Credit Party of its obligations under the Five-Year Credit Agreement, as amended hereby, do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any of the Credit Parties or any of their Subsidiaries to obtain any Governmental Approval not otherwise already obtained or violate any Applicable Law relating to the Credit Parties or any of their Subsidiaries, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of the Credit Parties or any of their 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 any Governmental Approval relating to such Person except as could not reasonably be expected to have a Material Adverse Effect, or (iii) result in or require the creation or imposition of any material Lien upon or with respect to any property now owned or hereafter acquired by such Person other than a Lien permitted under the terms of the Loan Documents.
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(c) Each of the Credit Parties has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Amendment and the performance of its obligations the Five-Year Credit Agreement, as amended hereby, in accordance with their respective terms. This Amendment has been duly executed and delivered by the duly authorized officers of the Credit Parties and such document constitutes, and each of the Loan Documents does and continues to constitute, the legal, valid and binding obligation of the Credit Parties and, if applicable, each of their Subsidiaries party thereto, enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors' rights in general and the availability of equitable remedies.
(d) Except for matters existing on the Closing Date and set forth on Schedule 7.1(q) to the Five-Year Credit Agreement, there are no actions, suits or proceedings pending nor, to the knowledge of the Credit Parties, threatened against or affecting the Credit Parties or any Subsidiary thereof or any of their respective properties in any court or before any arbitrator of any kind or before or by any Governmental Authority, which could reasonably be expected to have a Material Adverse Effect or which relate to the enforceability of this Amendment or any Loan Documents, as amended hereby.
SECTION 5. Reference to and Effect on the Five-Year Credit Agreement and the Loan Documents. (a) On and after the effectiveness of this Amendment, each reference in the Five-Year Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Five-Year Credit Agreement, and each reference in the Notes and each of the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Five-Year Credit Agreement, shall mean and be a reference to the Five-Year Credit Agreement, as amended by this Amendment.
(b) The Five-Year Credit Agreement, as specifically amended by this Amendment, the Notes and each of the other Loan Documents, are and shall continue, following the effectiveness of this Amendment, to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as specifically provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Five-Year Credit Agreement, nor constitute a waiver of any provision of the Five-Year Credit Agreement.
SECTION 6. Costs and Expenses. The Borrower agrees to pay on demand all reasonable out-of-pocket expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and disbursements of
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counsel for the Administrative Agent) in accordance with the terms of Section 14.2 of the Five-Year Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement, binding upon all parties, their successors and assigns. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| ▇▇▇▇▇ APPAREL GROUP USA, INC. as Borrower By: /s/ ▇▇▇▇▇▇ ▇. Card |
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| ▇▇▇▇▇ APPAREL GROUP, INC. as Additional Obligor By: /s/ ▇▇▇▇▇▇ ▇. Card |
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| ▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC. as Additional Obligor By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ |
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| ▇▇▇▇▇▇ LTD. as Additional Obligor By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| NINE WEST FOOTWEAR CORPORATION as Additional Obligor By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ |
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| ▇▇▇▇▇ RETAIL CORPORATION as Additional Obligor By: /s/ ▇▇▇▇▇▇ ▇. Card |
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| WACHOVIA BANK, NATIONAL ASSOCIATION as Administrative Agent and Lender By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
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| BANCO BILBAO VIZCAYA ARGENTINA By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ By: /s/ Giampaolo Consigliere |
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| BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
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| BANK OF CHINA, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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| THE BANK OF NOVA SCOTIA By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ |
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| BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
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| ▇▇▇▇▇ ▇▇▇▇ BANK CO., LTD. NEW YORK AGENCY By: /s/ ▇▇▇▇▇-▇▇▇ Wei |
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| CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ |
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| JPMORGAN CHASE BANK, N.A. (FORMERLY KNOWN AS JPMORGAN CHASE BANK) By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| THE ROYAL BANK OF SCOTLAND PLC By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇ |
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| STANDARD CHARTERED BANK By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ |
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| SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT NOTE
$_____________________ _____________, 200_
FOR VALUE RECEIVED, the undersigned ▇▇▇▇▇ APPAREL GROUP USA, INC., a corporation organized under the laws of Pennsylvania, (the "Borrower"), ▇▇▇▇▇ APPAREL GROUP, INC., a corporation organized under the laws of Pennsylvania, ▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC., a corporation organized under the laws of Delaware, ▇▇▇▇▇▇, LTD., a corporation organized under the laws of Delaware, NINE WEST FOOTWEAR CORPORATION, a corporation organized under the laws of Delaware, and ▇▇▇▇▇ RETAIL CORPORATION, a corporation organized under the laws of New Jersey (collectively, with the Borrower, the "Debtors"), hereby jointly and severally promise to pay to the order of _________________, (the "Lender"), at the place and times provided in the Credit Agreement referred to below, the principal sum of ______________________ DOLLARS ($_____________) or, if less, the aggregate unpaid principal amount of all Revolving Credit Loans made to the Borrower by the Lender pursuant to that certain Amended and Restated Five Year Credit Agreement dated as of June 15, 2004 (as amended, restated, supplemented or otherwise modified, the "Credit Agreement") by and among ▇▇▇▇▇ Apparel Group USA, Inc., the Additional Obligors referred to therein, the Lenders who are or may become a party thereto (collectively, the "Lenders"), Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Joint Lead Arrangers and Joint Bookrunners, Wachovia Bank, National Association, as Administrative Agent, and Citibank, N.A. and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Syndication Agents, and Bank of America, N.A., Barclays Bank plc and SunTrust Bank, as Documentation Agents. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of Revolving Credit Loans from time to time outstanding is subject to mandatory repayment from time to time as provided in the Credit Agreement and shall bear interest as provided in Section 5.1 of the Credit Agreement. All payments of principal and interest on Revolving Credit Loans shall be payable in lawful currency of the United States of America in immediately available funds to the account designated in the Credit Agreement.
This Revolving Credit Note (the "Revolving Credit Note") is entitled to the benefits of, and evidences Obligations incurred under, the Credit Agreement, to which reference is made for a statement of the terms and conditions on which the Borrower is permitted and required to make prepayments and repayments of principal of the Obligations evidenced by this Revolving Credit Note and on which such Obligations may be declared to be immediately due and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Revolving Credit Note is senior in right of payment to all Subordinated Debt referred to in the Credit Agreement.
The Debtors hereby waive all requirements as to diligence, presentment, demand of payment, protest and (except as required by the Credit Agreement) notice of any kind with respect to this Revolving Credit Note.
IN WITNESS WHEREOF, the undersigned have executed this Revolving Credit Note under seal as of the day and year first above written.
| ▇▇▇▇▇ APPAREL GROUP USA, INC.
By: ___________________ |
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| ▇▇▇▇▇ APPAREL GROUP, INC.
By: ___________________ |
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| ▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC.
By: ___________________ |
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| ▇▇▇▇▇▇, LTD.
By: ___________________ |
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| NINE WEST FOOTWEAR CORPORATION
By: ___________________ |
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| ▇▇▇▇▇ RETAIL CORPORATION
By: ___________________ |
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned ▇▇▇▇▇ APPAREL GROUP USA, INC., a corporation organized under the laws of Pennsylvania, (the "Borrower"), ▇▇▇▇▇ APPAREL GROUP, INC., a corporation organized under the laws of Pennsylvania, ▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC., a corporation organized under the laws of Delaware, ▇▇▇▇▇▇, LTD., a corporation organized under the laws of Delaware, NINE WEST FOOTWEAR CORPORATION, a corporation organized under the laws of Delaware, and ▇▇▇▇▇ RETAIL CORPORATION, a corporation organized under the laws of New Jersey (collectively, with the Borrower, the "Debtors"), hereby jointly and severally promise to pay to the order of _________________, (the "Lender"), at the place and times provided in that certain Amended and Restated Five Year Credit Agreement dated as of June 15, 2004 (as amended, restated, supplemented or otherwise modified, the "Credit Agreement") by and among ▇▇▇▇▇ Apparel Group USA, Inc., the Additional Obligors referred to therein, the Lenders who are or may become a party thereto (collectively, the "Lenders"), Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Joint Lead Arrangers and Joint Bookrunners, Wachovia Bank, National Association, as Administrative Agent, and Citibank, N.A. and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as Syndication Agents, and Bank of America, N.A., Barclays Bank plc and SunTrust Bank, as Documentation Agents (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined)), on _______________, 200_, the principal amount of [U.S.$_______________] [for a Competitive Bid Loan in an Alternative Currency, list currency and amount of such Loan].
The undersigned promise to pay interest on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full, at the interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____ days for the actual number of days elapsed) (revise as appropriate for a Floating Rate Loan).
Both principal and interest are payable in lawful money of ____________ to Wachovia Bank, National Association, as administrative agent, for the account of the Lender at its office, at _________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
THIS COMPETITIVE BID NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Competitive Bid Note is senior in right of payment to all Subordinated Debt referred to in the Credit Agreement.
The Debtors hereby waive all requirements as to diligence, presentment, demand of payment, protest and (except as required by the Credit Agreement) notice of any kind with respect to this Competitive Bid Note.
IN WITNESS WHEREOF, the undersigned have executed this Competitive Bid Note under seal as of the day and year first above written.
| ▇▇▇▇▇ APPAREL GROUP USA, INC.
By: ___________________ |
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| ▇▇▇▇▇ APPAREL GROUP, INC.
By: ___________________ |
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| ▇▇▇▇▇ APPAREL GROUP HOLDINGS, INC.
By: ___________________ |
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| ▇▇▇▇▇▇, LTD.
By: ___________________ |
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| NINE WEST FOOTWEAR CORPORATION
By: ___________________ |
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| ▇▇▇▇▇ RETAIL CORPORATION
By: ___________________ |