EXHIBIT 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), made as of September 21, 2005, among Oxford Industries, Inc., a
Georgia corporation, Oxford of South Carolina, Inc., a South Carolina
corporation, and Viewpoint International, Inc., a Delaware corporation, as
Borrowers, the Domestic Subsidiaries of the Borrowers party to the Credit
Agreement (defined below) as Guarantors, the Lenders (as defined in the Credit
Agreement) party hereto, and SunTrust Bank, as the Administrative Agent,
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Lenders, the financial
institutions party thereto as Issuing Banks and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement, dated as of July
28, 2004, as modified and amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of January 10, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, the parties wish to amend the Credit Agreement set forth
herein upon the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises, the terms and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree that
all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, and
further agree as follows:
1. Amendments to Credit Agreement.
(a) Section 8.4 of the Credit Agreement, Restricted Payments
and Purchases, is hereby amended to delete the text "and Availability is at
least 15% of the amount of the Revolving Loan Commitments as of such date" at
the end of clause (d)(ii) of the proviso set forth therein.
(b) Section 8.7 of the Credit Agreement, Liquidation; Change
in Ownership, Name or Year; Disposition or Acquisition of Assets, Etc., is
hereby amended to delete the text "and, after giving effect to such acquisition,
the Availability is at least 15% of the amount of the Revolving Loan Commitments
as of such date" at the end of clause (B) of the proviso set forth in subsection
(d) thereof.
2. No Other Amendment or Waiver. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided above,
operate as a waiver of any right, power or remedy of the Administrative Agent,
the Lenders or Issuing Banks under the Credit Agreement or any of the other Loan
Documents, nor constitute a waiver of any provision of the
Credit Agreement or any of the other Loan Documents. Except for the amendment
expressly set forth above, the text of the Credit Agreement and all other Loan
Documents shall remain unchanged and in full force and effect and each Borrower
hereby ratifies and confirms its obligations thereunder. This Amendment shall
not constitute a modification of the Credit Agreement or a course of dealing
with the Administrative Agent, the Lenders or the Issuing Banks at variance with
the Credit Agreement such as to require further notice by the Administrative
Agent, the Lenders or the Issuing Banks to require strict compliance with the
terms of the Credit Agreement and the other Loan Documents in the future.
Nothing in this Amendment is intended, or shall be construed, to constitute a
novation or an accord and satisfaction of any of the Obligations or to modify,
affect or impair the perfection or continuity of the Administrative Agent's or
the Lenders' security interests in, security titles to, or other Liens on, any
Collateral for the Obligations.
3. Conditions of Effectiveness. This Amendment shall become
effective as of the date hereof when, and only when, the Administrative Agent,
on behalf of the Issuing Banks and the Lenders, shall have received, in form and
substance satisfactory to it:
(a) counterparts to this Amendment duly executed by the
Borrowers and the Majority Lenders; and
(b) such other information, documents, instruments or
approvals as the Administrative Agent may require.
4. Representations and Warranties of Borrower Parties. Each
Borrower Party represents and warrants as follows:
(a) Such Borrower Party is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization;
(b) The execution, delivery and performance by such
Borrower Party of this Amendment and the Loan Documents, as amended hereby, are
within such Borrower Party's legal powers, have been duly authorized by all
necessary company action and do not contravene (i) such Borrower Party's
organizational documents, or (ii) law or contractual restrictions binding on or
affecting such Borrower Party;
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body, is
required for the due execution, delivery and performance by such Borrower Party
of this Amendment or any of the Loan Documents, as amended hereby, to which such
Borrower Party is or will be a party;
(d) This Amendment and each of the other Loan Documents,
as amended hereby, to which such Borrower Party is a party constitute legal,
valid and binding obligations of such Borrower Party, enforceable against such
Borrower Party in accordance with their respective terms; and
(e) No Default or Event of Default exists.
5. Reference to and Effect on the Loan Documents. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
6. Costs, Expenses and Taxes. Borrowers agree to pay on demand
all out-of-pocket expenses of the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment, including,
but not limited to, the reasonable fees and disbursements of counsel for the
Administrative Agent.
7. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to the conflict of laws principles thereof, except to the extent
otherwise provided in the Loan Documents.
8. Loan Document. This Amendment shall be deemed to be a Loan
Document for all purposes.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
In proving this Amendment in any judicial proceeding, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought. Any signatures delivered by a party by
facsimile transmission or by e-mail transmission shall be deemed an original
signature hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed under seal by their duly authorized officers in Atlanta, Georgia, all
as of the day and year first above written.
BORROWERS: OXFORD INDUSTRIES, INC., as a Borrower,
By: /s/ J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
----------------------------
Title: Vice President
----------------------------
Attest: /s/ Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
OXFORD OF SOUTH CAROLINA, INC., as a
Borrower
By: /s/ J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
----------------------------
Title: Vice President
----------------------------
Attest: /s/ Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
XXXXX BAHAMA GROUP, INC. (FORMERLY KNOWN AS VIEWPOINT
INTERNATIONAL, INC.), as a Borrower
By: /s/ J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
----------------------------
Title: Vice President
----------------------------
Attest: /s/ Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
GUARANTORS: LIONSHEAD CLOTHING COMPANY, a Delaware
corporation
By: /s/ J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
----------------------------
Title: Vice President
----------------------------
Attest: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
MERONA INDUSTRIES, INC., a Delaware corporation
By: /s/ J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
----------------------------
Title: Vice President
----------------------------
Attest: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------
Title: Assistant Secretary
---------------------------
OXFORD CARRIBBEAN, INC., a Delaware corporation
By: J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest: Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Assistant Secretary
BEN XXXXXXX CLOTHING, INC., a Georgia
corporation
By: J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest: Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
Title: Assistant Secretary
OXFORD GARMET, INC., a Delaware corporation
By: J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest: Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Assistant Secretary
OXFORD INTERNATIONAL, INC., a Georgia
corporation
By: J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest: Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
Title: Assistant Secretary
XXXXX BAHAMA R&R HOLDINGS, INC., a
Delaware corporation
By: J. Xxxxx Xxxxxx, Xx.
-----------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
Title: Vice President
Attest: Xxxx Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
Title: Assistant Secretary
XXXXX BAHAMA BEVERAGES, LLC, a Delaware
limited liability company
By: XXXXX BAHAMA R & R HOLDINGS, INC., a
Delaware corporation, as its sole member
By: /s/ J. Xxxxx Xxxxxx, Xx.
------------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
--------------------------
Title: Vice President
--------------------------
Attest: /s/ Xxxx Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
--------------------------
Title: Assistant Secretary
--------------------------
XXXXX BAHAMA TEXAS BEVERAGES, LLC, a
Texas limited liability company
By: XXXXX BAHAMA BEVERAGES, LLC, a Delaware
limited liability company, as its sole member
By: XXXXX BAHAMA R & R HOLDINGS, INC., a
Delaware corporation, as its sole member
By: /s/ J. Xxxxx Xxxxxx, Xx.
------------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
--------------------------
Title: Vice President
--------------------------
Attest: /s/ Xxxx Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx Xxxxxx
--------------------------
Title: Assistant Secretary
--------------------------
PIEDMONT APPAREL CORPORATION, a Delaware
corporation
By: /s/ J. Xxxxx Xxxxxx, Xx.
------------------------------------
Name: J. Xxxxx Xxxxxx, Xx.
--------------------------
Title: Vice President
--------------------------
Attest: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
--------------------------
Title: Assistant Secretary
--------------------------
LENDER GROUP: SUNTRUST BANK, as the Administrative Agent, an
Issuing Bank and a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
--------------------------
Title: Vice President
--------------------------
BANK OF AMERICA, N.A., as a Lender and an Issuing
Bank
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------
Title: Vice President
--------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
--------------------------
Title: Duly Authorized Signatory
--------------------------
HSBC BUSINESS CREDIT (USA) INC., as a Lender
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
--------------------------
Title: Vice President
--------------------------
JPMORGAN CHASE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: Vice President
--------------------------
SHANGHAI COMMERCIAL BANK LTD., as a Lender
and an Issuing Bank
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
--------------------------
Title: Vice President
--------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION, as
a Lender and an Issuing Bank
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------
Title: Vice President
--------------------------
HSBC BANK USA, NATIONAL ASSOCIATION
(formerly HSBC Bank USA), as an Issuing Bank
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: First Vice President
--------------------------
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X.X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X.X. Xxxxxxx
--------------------------
Title: Vice President
--------------------------
ISRAEL DISCOUNT BANK OF NEW YORK, as a
Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
--------------------------
Title: Vice President
--------------------------
By: /s/ Xxx Xxxxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxxxx
--------------------------
Title: Senior Vice President I
--------------------------
