EXHIBIT 10.36
AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of February 28, 2005, is entered into between
DECKERS OUTDOOR CORPORATION, a Delaware corporation ("Borrower"), and COMERICA
BANK, a Michigan banking corporation, successor by merger to Comerica
Bank-California, a California banking corporation ("Bank"), with reference to
the following facts:
A. Borrower and UGG Holdings, Inc., a California corporation ("UGG"), on
the one hand, as co-borrowers, and Bank, on the other hand, previously entered
into that certain Amended and Restated Credit Agreement, dated as of November
25, 2002, as amended by that certain Amendment Number One to Amended and
Restated Credit Agreement, dated as of April 29, 2003, that certain Amendment
Number Two to Amended and Restated Credit Agreement, dated as of June 27, 2003,
and that certain Amendment Number Three to Amended and Restated Credit
Agreement, dated as of August 6, 2003, and that certain Amendment Number Four to
Amended and Restated Credit Agreement, dated as of November 13, 2004 (as so
amended, the "Agreement");
B. UGG has duly merged with and into Borrower and Borrower is the
surviving entity;
C. With the consent of Bank, which has previously been given to
Borrower, Borrower has repaid all Subordinate Debt in full; and
C. Borrower and Bank desire to further amend the Agreement in accordance
with the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
hereby agree as follows:
1. Defined Terms. All initially capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Agreement.
2. Amendment to Section 1.1. The definition of "Revolving Loans Maturity
Date" set forth in Section 1.1 of the Agreement is hereby amended in its
entirety as follows:
"`Revolving Loans Maturity Date' means June 1, 2006."
3. Amendment to Section 2.15(b). Section 2.15(b) of the Agreement is
hereby amended in its entirety as follows:
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"(b) On each anniversary of the Closing Date (except for the Term
Loan Maturity Date), Borrower shall pay to Bank an annual fee (the
"Annual Fee"), each in the amount of Sixty Thousand Dollars
($60,000)."
4. Amendments to Section 7.15.
(a) Clauses (e) and (f) of Section 7.15 of the Agreement are hereby
amended in their entirety as follows:
"(e) Intentionally Deleted."
"(f) Consolidated Effective Tangible Net Worth, measured as of
the end of each fiscal quarter of Borrower, commencing with the
fiscal quarter ended December 31, 2004, at any time to be less than
the sum of (i) $37,000,000 plus (ii) on a cumulative basis, 75% of
the Consolidated Net Profit (but in no event less than zero) for each
fiscal year, commencing with the fiscal year ended December 31,
2004."
5. Amendment to Article XI. Article XI of the Agreement is hereby
deleted in its entirety. All references in the Agreement to "Parent," "UGG,"
"each Borrower," "such Borrower," "Borrowers" and similar references shall be
deemed to be references to "Borrower."
6. Representations and Warranties. In order to induce Bank to enter into
this Amendment, Borrower hereby represents and warrants to Bank that:
(a) No Event of Default or Unmatured Event of Default is continuing;
(b) All of the representations and warranties set forth in the
Agreement and the Loan Documents are true, complete and accurate in all respects
(except for representations and warranties which are expressly stated to be true
and correct as of the Closing Date); and
(c) This Amendment has been duly executed and delivered by Borrower,
and after giving effect to this Amendment, the Agreement and the Loan Documents
continue to constitute the legal, valid and binding agreements and obligations
of Borrower, enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, and similar laws and
equitable principles affecting the enforcement of creditors' rights generally.
7. Conditions Precedent to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to and contingent upon the fulfillment of each and
every one of the following conditions:
(a) Bank shall have received this Amendment, duly executed by
Borrower;
(b) Bank shall have received evidence satisfactory to Bank that (i)
UGG has duly merged with and into Borrower and Borrower is the surviving entity,
and (ii) all assets of UGG have been duly transferred and assigned to Borrower,
and accepted by Borrower, and without limiting the generality of the foregoing,
record title to all Intangible Assets shall be held in the name of Borrower;
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(c) Bank shall have received a Collateral Access Agreement respecting
Borrower's location at 3001 Mission Oaks Boulevard, Camarillo, California 93012,
duly executed by the landlord of such location and in form and substance
satisfactory to Bank;
(d) No Event of Default, Unmatured Event of Default or Material
Adverse Effect shall have occurred and be continuing; and
(e) All of the representations and warranties set forth herein, in
the Loan Documents and in the Agreement shall be true, complete and accurate in
all respects as of the date hereof (except for representations and warranties
which are expressly stated to be true and correct as of the Closing Date).
8. Counterparts; Telefacsimile Execution. This Amendment may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Amendment. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of a manually executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile also shall deliver a manually executed
counterpart of this Amendment but the failure to deliver a manually executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment.
9. Integration. The Agreement as amended by this Amendment constitutes
the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof and thereof, and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof and thereof.
10. Reaffirmation of the Agreement. The Agreement as amended hereby and
the other Loan Documents remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date first hereinabove written.
DECKERS OUTDOOR CORPORATION,
a Delaware corporation
By: /s/ M. Scott Ash
--------------------------------
Name: M. Scott Ash
Title: Chief Financial Officer
COMERICA BANK,
a Michigan banking corporation,
successor by merger to Comerica
Bank-California, a California
banking corporation
By: /s/ Geoffrey Matthews
--------------------------------
Name: Geoffrey Matthews
Title: Assistant Vice President-
Western Division
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