Unassociated Document







Exhibit 10.1

 

 




FIRST
AMENDMENT TO

AMENDED
AND RESTATED CREDIT AGREEMENT AND SECURITY AGREEMENT




This
First Amendment to Amended and Restated Credit Agreement and Security Agreement
(the “First Amendment”) is made as of the 14th day of March, 2005 by and
among




BROWN
SHOE COMPANY, INC., a corporation organized under the laws of the State of New
York having a place of business at 8300 Maryland Avenue, St. Louis, Missouri
63105, as Lead Borrower for the Borrowers, being

 

said
BROWN SHOE COMPANY, INC., 

 

SIDNEY
RICH ASSOCIATES, INC., a corporation organized under the laws of the State of
Missouri having a place of business at 8300 Maryland Avenue, St. Louis, Missouri
63105;

 

BROWN
GROUP RETAIL, INC., a corporation organized under the laws of the Commonwealth
of Pennsylvania having a place of business at 8300 Maryland Avenue, St. Louis,
Missouri 63105;

 

BROWN
SHOE INTERNATIONAL, LLC., a limited liability company organized under the laws
of the State of Delaware having a place of business at 8300 Maryland Avenue, St.
Louis, Missouri 63105; and

 

BUSTER
BROWN & CO., a corporation organized under the laws of the State of Missouri
having a place of business at 8300 Maryland Avenue, St. Louis, Missouri
63105;

 

BROWN
SHOE COMPANY OF CANADA LTD., a Canadian corporation having a place of business
at 1857 Rodgers Road, Perth, Ontario, Canada K7H 3E8, 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 100 Federal Street, Boston, Massachusetts 02110;
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., 40 Broad Street, Boston, Massachusetts 02109;
and

 

LASALLE
BANK NATIONAL ASSOCIATION, as Syndication Agent; and

 

WELLS
FARGO FOOTHILL, LLC, as Documentation Agent

 










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in
consideration of the mutual covenants herein contained and benefits to be
derived herefrom.

 

WITNESSETH




WHEREAS,
the Lead Borrower, the other Borrowers, Brown 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 and in effect, the “Credit
Agreement”); and 




WHEREAS,
the Lead Borrower, the other Borrowers and Brown Canada entered into an Amended
and Restated Security Agreement dated as of July 21, 2004 (as amended and in
effect, the “Security Agreement”) with the Collateral Agent; and




WHEREAS,
the Lead Borrower, the other Borrowers, Brown 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 and the Security 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:




 


	 	
      a.
	
      The
      provisions of Section 1.1 of the Credit Agreement are hereby amended by
      adding the following definitions in appropriate alphabetical
      order:




 

“Earn-Out
Obligations” means
any contingent consideration payable to the seller in connection with a
Permitted Acquisition based on future operating performance of the acquired
Person or assets or other purchase price adjustment or indemnification
obligation payable following the consummation of such Permitted Acquisition
based on criteria set forth in the documentation governing or relating to such
Permitted Acquisition.

 










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“Permitted
Consignment” means
an arrangement pursuant to which a Loan Party consigns Inventory to a customer,
provided that (i) such consignment arrangement shall constitute a true
consignment and not a security interest, (ii) the Loan Party shall use
commercially reasonable efforts to undertake all action required under the UCC
to perfect its rights in the Inventory so consigned and the proceeds thereof, in
each instance, as soon as may be reasonably practicable, and (iii) the value of
such Inventory on consignment at any one time shall not exceed
$3,000,000.

 


	 	
      b.
	
      The
      definition of “Change in Control” is hereby amended by deleting the period
      at the end of clause (d) and adding the
following:




 

; or (e)
any “change in control” or similar event however defined in any documents
governing Material Indebtedness of any Loan Party. 

 


	
      3.
	
      Amendments
      to Article 6.
      The provisions of Article 6 of the Credit Agreement are hereby amended as
      follows:




 


	 	
      a.
	
      The
      provisions of Section 6.1(i) of the Credit Agreement are hereby deleted in
      their entirety and the following substituted in their
    stead:




 

(i)
Unsecured Indebtedness for borrowed money, including, without limitation,
Subordinated Debt, having a maturity after the Maturity Date, provided
that after
giving effect to the incurrence of such unsecured Indebtedness or Subordinated
Debt, the Pro Forma Conditions are satisfied, except that the Pro Forma
Conditions shall not be required to be satisfied with respect to any publicly
issued or privately placed notes, any exchange notes or any rollover notes, in
each case issued to refinance or refund, or in exchange for, any bridge facility
permitted under Section 6.1(k) hereof;

 


	 	
      b.
	
      The
      provisions of Section 6.1(k) of the Credit Agreement are hereby deleted in
      their entirety and the following substituted in their
    stead:




 

(k)
Unsecured Indebtedness for borrowed money, including, without limitation,
Subordinated Debt (other than Indebtedness described in subsections (i) or (j)
above) having a maturity on or prior to the Maturity Date provided
that (A)
after giving effect to the incurrence thereof and the projected refinancing or
refunding thereof, the Pro Forma Conditions are satisfied, (B) constitutes a
bridge loan pending the consummation of a debt or equity issuance, and (C) the
principal of which will not be repaid (other than (1) from the proceeds of such
debt or equity issuance or from any rollover loans, publicly issued or privately
placed notes, or exchange notes issued in exchange for the bridge loan, or (2)
as permitted pursuant to Section 6.7(b)(i) hereof) until all Obligations have
been paid in full and all Commitments terminated;

 










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      c.
	
      The
      provisions of Section 6.1(q) of the Credit Agreement are hereby amended by
      adding the words “or a Person who will become a Loan Party” after the
      words “a Subsidiary of a Loan Party.”




 


	 	
      d.
	
      The
      provisions of Section 6.1 of the Credit Agreement are hereby amended by
      relettering clause (r) as clause (s) and adding the following new clause
      thereto:




 

(r)
Indebtedness consisting of Earn-Out Obligations, but only to the extent that the
contingent consideration relating thereto is paid within thirty (30) days after
the amount due is finally determined; and

 


	 	
      e.
	
      The
      provisions of Section 6.2 of the Credit Agreement are hereby amended by
      deleting the word “and” at the end of clause (e), by substituting “;” for
      the period at the end of clause (f) and adding the following new clauses
      thereto:




 

(g) Liens
existing on assets prior to the acquisition thereof, which are directly or
indirectly acquired in a Permitted Acquisition provided
that (i) such
Liens secure Indebtedness permitted under Section 6.1 hereof or obligations to a
lessor under a lease of Real Estate to a Loan Party, (ii) such Liens are not
created in contemplation of or in connection with such Permitted Acquisition,
(iii) such Liens shall not apply to any other property or assets of a Loan
Party, (iv) such Liens shall secure only the Indebtedness or other obligations
that such Liens secure on the date of the Permitted Acquisition; and (v) such
Liens shall not attach to assets which would be of a type included as Collateral
or in the Borrowing Base, except for non-material Liens acceptable to the
Administrative Agent; and

 

(h) Liens
on cash and cash equivalents to secure letters of credit permitted pursuant to
Section 6.1(q).

 


	 	
      f.
	
      The
      provisions of Section 6.5(f) of the Credit Agreement are hereby amended by
      adding the following at the end thereof:




 

provided
further that, if a
Cash Dominion Event then exists and is continuing, all of such proceeds (and not
only those in excess of $35,000,000) shall be paid to the Administrative Agent
for application to the Obligations;

 


	 	
      g.
	
      The
      provisions of Section 6.6 of the Credit Agreement are hereby amended as
      follows:




 










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      i.
	
      by
      deleting clause (a) in its entirety and substituting the following in its
      stead:




 

(a) the
ability of any Loan Party to create, incur or permit to exist any Lien upon any
of its property or assets in favor of the Secured Parties,

 


	 	
      ii.
	
      by
      deleting clause (b) in its entirety and substituting the following in its
      stead:




 

(b) the
ability of (i) any Loan Party (other than the Lead Borrower) to pay dividends or
other distributions with respect to any shares of its Capital Stock or (ii) any
Loan Party to make or repay loans or advances to any Loan Party or to guarantee
Indebtedness of any Loan Party;

 


	 	
      h.
	
      The
      provisions of Section 6.7(b) of the Credit Agreement are hereby amended as
      follows:




 


	 	
      i.
	
      by
      deleting clause (i) in its entirety and substituting the following in its
      stead:




 

(i)
payment when due (excluding any voluntary prepayments and, unless otherwise
agreed by the Required Lenders, payments due upon a Change in Control) of
principal, interest, fees and expense reimbursements with respect to
Indebtedness permitted under Section 6.1, but only to the extent required under
the terms of the documents evidencing such Indebtedness;

 


	 	
      ii.
	
      by
      deleting clause (iii) in its entirety and substituting the following in
      its stead:




 

(iii)
Intentionally Omitted.

 


	 	
      iii.
	
      by
      deleting clause (iv) in its entirety and substituting the following in its
      stead:




 

(iv)
refinancings of Indebtedness described in clauses (i) and (ii), above, to the
extent permitted by Section 6.1, including, without limitation, any refinancing
as a result of any rollover loans, publicly issued or privately placed notes or
exchange notes issued in exchange for such Indebtedness, and all fees and
expenses payable in connection with such refinancing.

 










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      4.
	
      Amendments
      to Security Agreement.
      The second sentence of Section 4.9 of the Security Agreement is hereby
      amended in its entirety to read as follows:




 

Except as
expressly permitted in the Credit Agreement, none of the Grantors shall make or
permit to be made any trans-fer of the Collat-eral, and each Grantor shall
remain at all times in posses-sion of the Collateral owned by it (other than
Collateral which is in transit or which is the subject of a Permitted
Consignment), except that unless and until an Event of Default shall have
occurred and be continu-ing, the Collateral Agent shall notify the Grantors
thereof in writing and such notice provides that the Grantors shall not sell,
convey, lease, assign, transfer or otherwise dispose of any Collateral (which
notice may be given by telephone if promptly confirmed in writing), the Grantors
may use and dispose of the Collateral in any lawful manner not inconsistent with
the provisions of this Agree-ment, the Credit Agreement or any other Loan
Document.

 


	
      5.
	
      Conditions
      to Effectiveness.
      This First Amendment shall not be effective until each of the following
      conditions precedent have been fulfilled to the satisfaction of the
      Administrative Agent:




 


	 	
      a.
	
      This
      First Amendment shall have been duly executed and delivered by the
      Borrowers, Brown 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.




 


	 	
      b.
	
      All
      action on the part of the Borrowers necessary for the valid execution,
      delivery and performance by the Borrowers of this First 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.




 


	 	
      c.
	
      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.




 


	 	
      d.
	
      No
      Default or Event of Default shall have occurred and be
      continuing.




 


	 	
      e.
	
      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.




 










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In the
event that the foregoing conditions are not satisfied on or before March 31,
2005, then this First Amendment shall be null and void and of no
effect.

 


	
      6.
	
      Miscellaneous.




 


	 	
      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
      First 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
      First 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.
	
      This
      First Amendment shall be governed by, and construed in accordance with,
      the law of the State of New York (without regard to its principles
      relating to choice and conflicts of law), but including section 5-1401 of
      the New York General Obligations Law.




 










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IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
executed and their seals to be hereto affixed as the date first above written.


 

“The
Borrowers”

 

BROWN
SHOE COMPANY, INC.

SIDNEY
RICH ASSOCIATES, INC.

BROWN
GROUP RETAIL, INC.

BUSTER
BROWN & CO.

as to
each of the foregoing







By_________________________

Name:
Andrew M. Rosen 

Title:
Senior Vice President and 

 Chief
Financial Officer 




BROWN
SHOE INTERNATIONAL, LLC

By; Brown
Shoe Company, Inc., Sole Member







By_________________________

Name:
Andrew M. Rosen

Title:
Senior Vice President and 

 Chief
Financial Officer 




“Non-Borrower
Loan Party”







BROWN
SHOE COMPANY OF CANADA LTD




By
__________________________

Name:
Andrew M. Rosen

Title:
Senior Vice President and

 Chief
Financial Officer 










8


















BANK OF
AMERICA, N.A., as 

Administrative
Agent, Collateral Agent, 

Lead
Issuing Bank and Lender

 




 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

LASALLE
BANK NATIONAL ASSOCIATION

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

WELLS
FARGO FOOTHILL, LLC

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

CONGRESS
FINANCIAL CORPORATION (CENTRAL)

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

GMAC
COMMERCIAL FINANCE LLC

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 










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THE CIT
GROUP/BUSINESS CREDIT, INC.

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

NATIONAL
CITY BUSINESS CREDIT, INC.

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

PNC BANK,
NATIONAL ASSOCIATION

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

TRANSAMERICA
BUSINESS CAPITAL CORPORATION

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

AMSOUTH
BANK

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

 







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SUN TRUST
BANK

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

WEBSTER
BUSINESS CREDIT CORPORATION 

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

SIEMENS
FINANCIAL SERVICES, INC.

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

FIRST
BANK 

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

RZB
FINANCE LLC 

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 

 







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THE
GOVERNOR & COMPANY  OF THE
BANK OF IRELAND 

 

By_________________________________

Print
Name:__________________________

Title:_______________________________

 












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