EXHIBIT 10.32
AMENDMENT NO. 7 TO CREDIT AGREEMENT
AMENDMENT NO. 7 dated as of November 22, 2002 (this "AMENDMENT NO. 7")
to the Third Amended and Restated Credit Agreement dated as of April 9, 1997 and
amended and restated as of June 8, 2001 (as amended, the "CREDIT AGREEMENT")
among FOOT LOCKER, INC., formerly Venator Group, Inc. (the "COMPANY"), the
SUBSIDIARIES party thereto, the BANKS party thereto, the CO-AGENTS party
thereto, THE BANK OF NEW YORK, as Administrative Agent, LC Agent and Swingline
Bank (the "ADMINISTRATIVE AGENT"), and the LEAD ARRANGERS party thereto.
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Credit Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof," "hereunder," "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall, after the Amendment No. 7
Effective Date (as defined in Section 10 below), refer to the Credit Agreement
as amended hereby.
SECTION 2. New Definitions Relating to the European
Restructuring. The following definitions are added in alphabetical order in
Section 1.01 of the Credit Agreement:
"AMENDMENT NO. 7 EFFECTIVE DATE" means the date of
effectiveness of Amendment No. 7 to this Agreement.
"EUROPEAN ENTITIES" means Foot Locker Europe, B.V., Foot
Locker UK Limited, Foot Locker France S.A.S., Foot Locker Austria GmbH, Foot
Locker Italy S.r.l., Foot Locker Netherlands B.V., Foot Locker Belgium BVBA,
Freedom Sportsline Limited, Foot Locker Sweden Aktiebolag, Foot Locker Denmark
ApS, and Foot Locker Artigos desportivos e de tempos livres, Lda.
"EUROPEAN ENTITIES FOREIGN SPECIFIED TRADEMARKS" means Foreign
Specified Trademarks (as such term is defined in the Security Agreement) that
are registered in any European country or the European Union.
"EUROPEAN ENTITIES HOLDING COMPANIES" means FLE Management,
FLE CV GP, Foot Locker Europe CV LP, New Dutch Holdco 1, New Dutch Holdco 2 and
any other Subsidiary that is a direct or indirect holding company of the capital
stock or other equity interests of New Dutch Holdco2.
"EUROPEAN RESTRUCTURING" means the transfer by the Company of
(i) all the capital stock or other equity interests of the European Entities to
New Dutch Holdco 2, and (ii) the European Entities Foreign Specified Trademarks
to FL Europe Holdings, in each case substantially on the terms described by the
Company to the Banks prior to the Amendment No. 7 Effective Date.
"EUROPEAN RESTRUCTURING CONDITIONS" means each of the
following conditions: (i) the execution and delivery by the Company of a pledge
agreement governed by the laws of the State of New York (or a supplement to the
Pledge Agreement) and in form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which 65% of the capital stock or other equity
interests of New US Holdco shall be subject to a perfected first priority Lien
for the benefit of the Bank Parties, (ii) FL Europe Holdings shall acknowledge
and agree that the European Entities Foreign Specified Trademarks transferred to
it are already subject to a continuing security interest for the benefit of the
Bank Parties, (iii) the fact that, immediately after giving effect to the
European Restructuring, the representations and warranties set forth in Section
5.19(c) shall be true and correct, (iv) the Company having delivered, at least 5
days prior
to the consummation of the European Restructuring, notice to the Administrative
Agent of the Company's intention to consummate the European Restructuring, and
the proposed date of consummation thereof, and (v) the Company having delivered,
or caused to be delivered, such certificates, evidences of corporate or other
organizational actions, notations and registrations, financing statements,
opinions of counsel, powers of attorney and other documents relating thereto as
the Administrative Agent may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent, with respect to the
conditions described in clauses (i), (ii), (iii) and (iv) hereof.
"FLE CV" means FLE CV, a Dutch limited partnership.
"FLE CV GP" means FLE CV GP, LLC, a Delaware limited liability
company.
"FLE MANAGEMENT" means FLE CV Management, Inc., a Delaware
corporation.
"FOOT LOCKER EUROPE CV LP" means Foot Locker Europe CV LP,
LLC, a Delaware limited liability company.
"FL EUROPE HOLDINGS" means FL Europe Holdings, Inc., a
Delaware corporation.
"NEW DUTCH HOLDCO 1" means a newly formed wholly-owned
indirect Subsidiary of the Company, incorporated under the laws of The
Netherlands. As of the Amendment No. 7 Effective Date, the Company expects that
New Dutch Holdco 1 will be "FLE CV".
"NEW DUTCH HOLDCO 2" means a newly formed wholly-owned
indirect Subsidiary of the Company, incorporated under the laws of The
Netherlands. As of the Amendment No. 7 Effective Date, the Company expects that
New Dutch Holdco 2 will be "FLE Holdings, B.V.".
"NEW US HOLDCO" means a newly formed wholly-owned direct
Subsidiary of the Company, incorporated under the laws of the State of Delaware.
As of the Amendment No. 7 Effective Date, the Company expects that New US Holdco
will be "FLE Management".
SECTION 3. Amendment of the Representations and Warranties.
Section 4.10(a) of the Credit Agreement is amended and restated in its entirety
as follows: "(a) Each of the Company's Subsidiaries is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has all requisite power and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except where failures to possess such licenses,
authorizations, consents and approvals could not, in the aggregate, reasonably
be expected to result in a Material Adverse Effect."
SECTION 4. Amendment of the Maintenance of Existence Covenant.
Section 5.03 of the Credit Agreement is amended by adding the following sentence
at the end thereof: "or (iii) prior to or contemporaneously with the
consummation of the European Restructuring, the conversion of Foot Locker France
S.A. to an S.A.S. (to be named Foot Locker France S.A.S.) and the conversion
Foot Locker Belgium NV to a BVBA (to be named Foot Locker Belgium BVBA)."
SECTION 5. Amendment of the Asset Sale Covenant to Permit the
Consummation of the European Restructuring. Section 5.11 of the Credit Agreement
is amended by inserting the following language at the end of clause (2) of the
second sentence thereof: "; provided that the Company shall be permitted to
consummate the European Restructuring so long as, prior to or contemporaneously
with the consummation thereof, each of the European Restructuring Conditions
shall have been satisfied."
SECTION 6. Additional Covenants Relating to European Entities
Holding Companies and FL Europe Holdings. (a) A new Section 5.19 is added to the
Credit Agreement immediately after Section 5.18 thereof, to read in its entirety
as follows:
SECTION 5.19. Provisions Relating to European Entities Holdings
Companies and FL Europe Holdings. (a)
No European Entities Holding Company shall conduct any activities other than the
ownership, directly or indirectly, of the capital stock or other equity
interests of other European Entities Holding Companies and of the European
Entities, in each case as such ownership is in effect on the date of
consummation of the European Restructuring; provided, however, that FLE CV may
license and sub-license the European Entities Foreign Specified Trademarks and
provide management, brand development, and related services to its direct and
indirect subsidiaries. Without limiting the generality of the foregoing, each
European Entities Holding Company will not (i) incur, assume, create or suffer
to exist any Debt or other obligations (other than Debt or other obligations
owed to the Company or any Subsidiary, so long as any such obligations shall be
subordinated to the obligations under the Loan Documents on terms reasonably
satisfactory to the Administrative Agent and the Company), or any Lien on any of
its property, whether now owned or hereafter acquired, and (ii) except pursuant
to the consummation of the European Restructuring, transfer any capital stock or
other equity interests of any European Entity to any other Subsidiary.
(b) FL Europe Holdings shall not conduct any activities other than the
ownership of the European Entities Foreign Specified Trademarks; provided,
however, that FL Europe Holdings may license and sub-license the European
Entities Foreign Specified Trademarks.
(c) The Company represents and warrants that, on the date of
consummation of the European Restructuring, after giving effect thereto, (i) all
of the capital stock or other equity interests of the European Entities are
directly held by New Dutch Holdco 2, (ii) all of the capital stock or other
equity interests of New Dutch Holdco 2 are directly held by New Dutch Holdco 1,
(iii) all of the capital stock or other equity interests of New Dutch Holdco 1
are held directly by New US Holdco or other direct domestic wholly-owned
Subsidiaries of New US Holdco, (iv) at least 65% of the capital stock or other
equity interests of New Dutch Holdco1 are held directly by New US Holdco and (v)
all the capital stock or other equity interests of New US Holdco are held
directly by the Company.
(d) Not later than 45 days (or such additional time period as agreed
to by the Administrative Agent) after the consummation of the European
Restructuring, FL Europe Holdings shall execute and deliver such trademark
security agreements and other security agreements, each in form and substance
satisfactory to the Administrative Agent, pursuant to which FL Europe Holdings
shall grant to the Administrative Agent a continuing security interest for the
benefit of the Bank Parties in the European Entities Foreign Specified
Trademarks.
(b) Section 6.01(b) of the Credit Agreement is amended by replacing
the reference contained therein to "5.18" with a reference to "5.19".
SECTION 7. Release of Liens on the Capital Stock of the European
Entities, Compliance with Section 5.17 by European Entities Holding Companies.
(a) Each of the Banks agrees that upon consummation of the European
Restructuring (as defined in the Credit Agreement as amended hereby) and
satisfaction of the European Restructuring Conditions (as defined in the Credit
Agreement as amended hereby), the Lien under the Collateral Documents on the
capital stock of each European Entity shall be automatically released, and the
Administrative Agent shall be authorized to execute and deliver to the relevant
Obligor, at the expense of such Obligor, such documents as such Obligor shall
reasonably request to evidence the termination of such Lien.
(b) Each of the Banks waives compliance with Section 5.17 of the
Credit Agreement solely as it relates to any European Entity Holding Company;
provided that such waiver shall be effective only so long as the Company shall
have complied with the conditions set forth in clause (i) of the definition of
"European Restructuring Conditions" and the representations and warranties set
forth in Section 5.19(c) of the Credit Agreement (as amended hereby) shall be
true and correct.
SECTION 8. Representations and Warranties. Each of the Company
and each other Obligor represents and warrants that, on and as of the Amendment
No. 7 Effective Date, (a) the representations and warranties of the Obligors
contained in the Loan Documents (as amended hereby) are true and (b) no Default
will have occurred and be continuing.
SECTION 9. Governing Law. This Amendment No. 7 shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 10. Counterparts; Effectiveness. This Amendment No. 7 may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment No. 7 shall become effective as of the date (the
"AMENDMENT NO. 7 EFFECTIVE DATE") of receipt by the Administrative Agent of:
(a) a counterpart hereof signed by the Company and the Required
Lenders (or a facsimile or other written confirmation (in form satisfactory to
the Administrative Agent) that each such party has signed a counterpart hereof);
(b) a certificate from the chief executive officer, chief financial
officer or treasurer of the Company certifying as to the matters set forth in
Section 8 of this Amendment No. 7;
(c) payment of all accrued costs, fees and expenses (including,
without limitation, all fees and expenses payable pursuant to Section
9.03(a)(ii) of the Credit Agreement together with the fees and expenses of
special counsel to the Lead Arrangers, the Administrative Agent and the
affiliates of each Lead Arranger); and
(d) such officer's certificates and other documents as the
Administrative Agent may reasonably request relating to the existence of each
Obligor and its corporate authority for the execution, delivery and performance
of Amendment No. 7 and the Credit Agreement as amended by Amendment No. 7.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Amendment No. 7 to be
duly executed as of the date first above written.
FOOT LOCKER, INC.
By: /s/ Peter D. Brown
------------------------------
Title: Vice President-Investor
Relations and Treasurer
Each of the Subsidiary Borrowers listed below hereby consents to Amendment No. 7
and agrees to be a party to, and be bound by, the Credit Agreement as amended by
Amendment No. 7.
FOOTLOCKER.COM, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER RETAIL, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
TEAM EDITION APPAREL, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER STORES, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER SPECIALTY, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER EUROPE B.V.
By: /s/ Peter D. Brown
---------------------------
Title: Authorized Individual
FOOT LOCKER AUSTRALIA, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER CANADA, INC.
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
FOOT LOCKER CANADA
CORPORATION
By: /s/ Peter D. Brown
---------------------------
Title: Vice President and
Treasurer
J.P. MORGAN SECURITIES, INC.
By: /s/ Colin Welch
----------------------------
Title: Vice President
BNY CAPITAL MARKETS, INC.
By: /s/ Randolph E. J. Medrano
----------------------------
Title: Vice President
JPMORGAN CHASE BANK
By: /s/ Teri Streusand
----------------------------
Title: Vice President
BANK OF AMERICA, N.A., successor
by merger to Bank of America
National Trust and Savings
Association
By: /s/ Dan M. Killian
----------------------------
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Randolph E. J. Medrano
----------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Todd S. Meller
----------------------------
Title: Managing Director
FLEET BANK
By: /s/ Linda Alto
----------------------------
Title: Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, formerly known as
First Union National Bank
By: /s/ Stephen T. Dorosh
----------------------------
Title: Vice President
BANCO POPULAR PUERTO RICO
By: /s/ Hector J. Gonzalez
----------------------------
Title: Vice President
U.S. BANK NATIONAL
ASSOCIATION (formerly Firstar
Bank, N.A.)
By: /s/ Thomas L. Bayer
----------------------------
Title: Vice President
THE BANK OF NEW YORK, as
Administrative Agent, LC Agent
and Swingline Bank
By: /s/ Randolph E. J. Medrano
----------------------------
Title: Vice President
Acknowledged and consented to by:
EASTBAY, INC.
FOOTLOCKER.COM, INC.
FOOT LOCKER AUSTRALIA, INC.
FOOT LOCKER STORES, INC.
ROBBY'S SPORTING GOODS, INC.
TEAM EDITION APPAREL, INC.
FOOT LCOKER CORPORATE
SERVICES, INC.
FOOT LOCKER HOLDINGS, INC.
FOOT LOCKER RETAIL, INC.
FOOT LOCKER SOURCING, INC.
FOOT LOCKER SPECIALTY, INC.
FOOT LOCKER INVESTMENTS, LLC
By: /s/ Peter D. Brown
----------------------------
Title: Vice President and
Treasurer
RETAIL COMPANY OF GERMANY,
INC.
By: /s/ Bruce L. Hartman
----------------------------
Title: Senior Vice President