Exhibit 10.15
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
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This Amendment (this "Amendment") is entered into as of November
23, 1998 among Payless ShoeSource, Inc., a Missouri corporation (the
"Company"), Payless ShoeSource, Inc. (formerly Payless ShoeSource
Holdings, Inc.), a Delaware corporation ("Holdco"), Payless
ShoeSource Finance, Inc. (formerly PSS Investment II, Inc.), a Nevada
corporation ("Nevada"), the several financial institutions signatory
hereto, and Bank of America National Trust and Savings Association,
individually and as agent (the "Agent").
RECITALS
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A. The Company, Holdco, Nevada, the Agent and certain
financial institutions (the "Banks") are party to that certain
Amended and Restated Multicurrency Credit Agreement dated as of
May 22, 1998 (the "Credit Agreement"). Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the
meanings ascribed to them by the Credit Agreement.
B. The Company, Holdco, Nevada, the Agent and the undersigned
Banks wish to amend the Credit Agreement on the terms and conditions
set forth below.
Now, therefore, in consideration of the mutual execution hereof
and other good and valuable consideration, the parties hereto agree
as follows:
1. Amendment to Credit Agreement. Upon this Amendment
becoming effective in accordance with Section 3 below, the Credit
Agreement shall be amended as follows:
(a) The definitions of "Level I Status", "Level II
Status", "Level III Status" and "Level IV Status" in Article I of the
Credit Agreement are amended in their entirety to read as follows:
"Level I Status" exists at any date if at such date the
Fixed Charge Coverage Ratio is greater than 2.25:1.0 and Level IV
Status does not exist.
"Level II Status" exists at any date if at such date the
Fixed Charge Coverage Ratio is less than or equal to 2.25:1.0 but
greater than 2.0:1.0 and Level IV Status does not exist.
"Level III Status" exists at any date if at such date the
Fixed Charge Coverage Ratio is less than or equal to 2.0:1.0 but
greater than 1.75:1.0 and Level IV Status does not exist.
"Level IV Status" exists at any date if at such date (a)
the Fixed Charge Coverage Ratio is less than or equal to 1.75:1.0 or
(b) the ratio of (i) Total Debt to (ii) Total Capitalization is equal
to or greater than 55%.
(b) Section 2.12(b) of the Credit Agreement is amended in
its entirety to read as follows:
"(b) Commitment and Utilization Fees. The Company
shall pay to the Agent for the account of each Bank a commitment
fee equal to the Applicable Commitment Fee Percentage times the
actual daily unused portion of such Bank's Commitment, computed
on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily utilization for that
quarter as calculated by the Agent. For purposes hereof, each
Bank's Commitment shall be deemed utilized to the extent of its
Pro Rata Share of all outstanding Loans and L/C Obligations.
Such commitment fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable
quarterly in arrears on the last Business Day of each calendar
quarter commencing with the first calendar quarter ending after
the Closing Date through the Revolving Termination Date, with
the final payment to be made on the Revolving Termination Date;
provided that, in connection with any reduction or termination
of Commitments under Section 2.06, the accrued commitment fee
calculated for the period ending on such date shall also be paid
on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period
from such reduction or termination date to such quarterly
payment date. The commitment fees provided in this subsection
shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions
in Article V are not met. The Company also agrees to pay to the
Agent for the pro-rata account of each Bank a utilization fee
for each day on which the Effective Amount of all Loans
outstanding plus the Effective Amount of all L/C Obligations
outstanding is greater than 50% of the aggregate Commitments,
from the date hereof to and including the later of the Revolving
Termination Date and the date all Loans and L/C Obligations are
paid in full. Such utilization fee shall be equal to .05%
multiplied by the aggregate outstanding Effective Amount of all
Loans and L/C Obligations on such day and shall be payable
quarterly in arrears on the last Business Day of each calendar
quarter commencing December 31, 1998 through the Revolving
Termination Date, with the final payment to be made on the
Revolving Termination Date."
(c) Section 2.13(b) of the Credit Agreement is amended in
its entirety to read as follows:
"(b) For purposes of determining utilization of each
Bank's Commitment in order to calculate the commitment fee
and/or utilization fee due under subsection 2.12(b), the amount
of any outstanding Offshore Currency Loan on any date shall be
determined based upon the Dollar Equivalent amount as of the
most recent Computation Date with respect to such Offshore
Currency Loan."
(d) Section 8.05(e) of the Credit Agreement shall be
renumbered as Section 8.05(f) and amended in its entirety to read as
follows:
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"(f) Other Indebtedness of such Loan Party and its
Subsidiaries so long as after giving pro forma effect to the
incurrence of such Indebtedness as if such Indebtedness had been
incurred on the last date of the most recently completed fiscal
quarter the ratio of (i) Total Debt to (ii) Total Capitalization
would not have been greater than 70%; provided, however, that
the amount of such other Indebtedness which is Indebtedness of
Subsidiaries (exclusive of Indebtedness of the Company or Nevada
(so long as Nevada is not a Subsidiary of the Company) and
Indebtedness owing to Holdco or its Subsidiaries) shall at no
time exceed an amount equal to 5% of Holdco's Consolidated
Tangible Net Worth at such time; provided further, however, that
solely for purposes of computations under this subsection
8.05(e), all such other Indebtedness outstanding at the time of
such incurrence shall be included in the definitions of "Total
Debt" and "Total Capitalization"."
(e) The word "and" shall be deleted at the end of Section
8.05(d) and a new Section 8.05(e) shall be added to the Credit
Agreement to read as follows:
"(e) Indebtedness of the Company of up to $200,000,000
which is private placement indebtedness so long as after giving
pro forma effect to the incurrence of such Indebtedness as if
such Indebtedness had been incurred on the last date of the most
recently completed fiscal quarter the ratio of (i) Total Debt to
(ii) Total Capitalization would not have been greater than 70%;
provided however, that the covenants and conditions placed upon
the Company pursuant to such private placement indebtedness,
taken as a whole, shall be no more restrictive than those placed
upon the Company by the Credit Agreement; provided further, that
solely for purposes of computations under this subsection
8.05(e), all such other Indebtedness outstanding at the time of
such incurrence shall be included in the definitions of "Total
Debt" and "Total Capitalization"; and "
(f) Section 8.07(f) of the Credit Agreement shall be
amended in its entirety to read as follows:
"(f) Guaranty Obligations of such Loan Party or
of any Guarantor with respect to any Indebtedness permitted
pursuant to subsections 8.05(e) or (f);"
(g) Section 8.12 of the Credit Agreement is amended in its
entirety to read as follows:
"8.12 Financial Covenants.
(a) Fixed Charge Coverage Ratio. For the period of
four consecutive fiscal quarters ending on the last day of each
fiscal quarter, Holdco shall not permit the Fixed Charge
Coverage Ratio to be less than 1.60:1.0.
(b) Leverage Ratio. Holdco shall not permit the
ratio of (i) Total Debt to (ii) Total Capitalization to be
greater than 70% as of the last day of any fiscal quarter.
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(c) Consolidated Tangible Net Worth. Holdco shall not
permit Consolidated Tangible Net Worth as of the last day of any
fiscal quarter to be less than $500,000,000."
2. Representations and Warranties of the Company, Holdco
and Nevada. Each of the Company, Holdco and Nevada represents and
warrants that:
(a) The execution, delivery and performance by such
party of this Amendment have been duly authorized by all
necessary corporate action and this Amendment constitutes the
legal, valid and binding obligation of such party, enforceable
against such party in accordance with its respective terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability;
(b) Each of the representations and warranties
contained in the Credit Agreement is true and correct on and as
of the date hereof as if made on the date hereof (except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they were true and correct as of
such earlier date); and
(c) After giving effect to this Amendment, no Default
or Event of Default has occurred and is continuing.
3. Effectiveness. This Amendment shall become effective
upon the execution and delivery hereof by the Company, Holdco, Nevada
and the Required Banks and the delivery to the Agent of the following
documents and the satisfaction of the following conditions:
(a) Reaffirmation of Subsidiary Guaranty. A reaffirmation
of guaranty in the form of Exhibit A hereto duly executed by
each of the Subsidiary Guarantors.
(b) Reaffirmation of Parent Guaranty. A reaffirmation of
guaranty in the form of Exhibit B hereto duly executed by each
of the Parent Guarantors.
(c) Bank Fees. The Company shall have paid to the Agent
for the pro-rata benefit of each Bank consenting to this
Amendment prior to October 29, 1998 an amendment fee equal to
.05% of each such consenting Bank's Commitment.
(d) Other Fees. The Company shall have paid to the Agent
such other fees as shall have been separately agreed to between the
Company and the Agent.
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
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(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agent or any Bank under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to
the Credit Agreement as amended hereby.
5. Costs and Expenses. The Company hereby affirms its
obligation under Section 11.04 of the Credit Agreement to reimburse
the Agent for all reasonable out-of-pocket costs and expenses
incurred by the Agent in connection with the preparation and
execution of this Amendment, including but not limited to the
attorneys' fees and time charges of attorneys for the Agent with
respect thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS;
PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be
deemed an original but all such counterparts shall constitute one and
the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
PAYLESS SHOESOURCE, INC., (Formerly
Payless Shoesource Holdings, Inc.) a
Delaware corporation
By: /s/ Steven J. Douglass
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Name: Steven J. Douglass
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Title: Chairman and Chief Executive
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Officer
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PAYLESS SHOESOURCE FINANCE, INC.
(formerly PSS INVESTMENT II, INC.), a
Nevada corporation
By: /s/ Ullrich E. Porzig
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Name: Ullrich E. Porzig
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Title: Senior Vice President and Chief
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Financial Officer
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PAYLESS SHOESOURCE, INC.,
a Missouri corporation
By: /s/ Steven J. Douglass
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Name: Steven J. Douglass
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Title: Chairman and Chief Executive
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Officer
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By: /s/ Ullrich E. Porzig
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Name: Ullrich E. Porzig
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Title: Senior Vice President and Chief
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Financial Officer
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Bridget A. Garavalia
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Name: Bridget A. Garavalia
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Title: Managing Director
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ Bridget A. Garavalia
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Name: Bridget A. Garavalia
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Title: Managing Director
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NATIONSBANK, N.A.
By: /s/ Bridget A. Garavalia
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Name: Bridget A. Garavalia
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Title: Managing Director
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THE BANK OF NEW YORK
By: /s/ Charlotte Sohn
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Name: Charlotte Sohn
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Title: Vice President
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COMMERCE BANK, N.A.
By: /s/ Jeffrey R. Gray
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Name: Jeffrey R. Gray
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Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Randal D. Southern
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Name: Randal D. Southern
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Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Catherine A. Muszynski
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Name: Catherine A. Muszynski
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Title: Vice President
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WELLS FARGO BANK, N.A.
By: /s/ Donald A. Hartmann and
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/s/ Steven A. Newell
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Name: Donald A. Hartmann and
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Steven A. Newell
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Title: Senior Vice President and
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Assistant Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ James A. Wiehe
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Name: James A. Wiehe
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Title: Assistant Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. William Bloore
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Name: J. William Bloore
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Title: Vice President
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UMB BANK, n.a.
By: /s/ Douglas F. Page
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Name: Douglas F. Page
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Title: Executive Vice President
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ROYAL BANK OF CANADA
By: /s/ Karen T. Hull
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Name: Karen T. Hull
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Title: Retail Group Manager
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MARINE MIDLAND BANK
By: /s/ Steven Trepiccione
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Name: Steven Trepiccione
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Title: Vice President - Officer #9435
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EXHIBIT A
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REAFFIRMATION OF SUBSIDIARY GUARANTY
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Each of the undersigned acknowledges receipt of a copy of
Amendment No. 1 dated November 23, 1998 (the "Amendment") to the
Amended and Restated Multicurrency Credit Agreement dated as of May
22, 1998, among Payless ShoeSource, Inc., Payless ShoeSource, Inc.
(formerly Payless ShoeSource Holdings, Inc.), Payless ShoeSource
Finance, Inc. (formerly PSS Investment II, Inc.), the several
financial institutions from time to time party thereto (the
"Banks") and Bank of America National Trust and Savings
Association, as Agent for the Banks, consents to the Amendment and
each of the Transactions referenced therein and hereby reaffirms
obligations under the Subsidiary Guaranty dated as of April 22,
1996 in favor of Agent, and the Banks.
PAYLESS SHOESOURCE MERCHANDISING, INC.
By: /s/ Michael S. Wilkes
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Title: President
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PAYLESS SHOESOURCE DISTRIBUTION, INC.
By: /s/ Charles P. Guardiola
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Title: President
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PAYLESS SHOESOURCE WORLDWIDE, INC.
By: /s/ H. Max Bennett
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Title: President
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EXHIBIT B
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REAFFIRMATION OF PARENT GUARANTY
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Each of the undersigned acknowledges receipt of a copy of
Amendment No. 1 dated November 23, 1998 (the "Amendment") to the
Amended and Restated Multicurrency Credit Agreement dated as of May
22, 1998, among Payless ShoeSource, Inc., Payless ShoeSource, Inc.
(formerly Payless ShoeSource Holdings, Inc.), Payless ShoeSource
Finance, Inc. (formerly PSS Investment II, Inc.), the several
financial institutions from time to time party thereto (the
"Banks") and Bank of America National Trust and Savings
Association, as Agent for the Banks, consents to the Amendment and
each of the Transactions referenced therein and hereby reaffirms
obligations under the Parent Guaranty dated as of May 11, 1998 in
favor of Agent, and the Banks.
PAYLESS SHOESOURCE, INC.,
a Delaware corporation
/s/ Steven J. Douglass
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By: Steven J. Douglass
Title: Chairman and Chief Executive Officer
PAYLESS SHOESOURCE FINANCE, INC.,
(f/k/a PSS Investment II, Inc.)
a Nevada corporation
/s/ Richard A. Jolosky
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By: Richard A. Jolosky
Title: President