1
Exhibit 10.31
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND GUARANTY
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
GUARANTY (the "THIRD AMENDMENT") dated as of March 6, 1998 among BISCAYNE
APPAREL, INC., BISCAYNE APPAREL INTERNATIONAL, INC. MACKINTOSH OF NEW ENGLAND
CO. AND M & L INTERNATIONAL, INC. (individually, each a "BORROWER" and
collectively, the "BORROWERS" and individually, each a "GUARANTOR" and
collectively, the "GUARANTORS"), THE CHASE MANHATTAN BANK, CORESTATES BANK,
N.A., BANKBOSTON, N.A. (formerly known as The First National Bank of Boston),
FLEET BANK N.A. and XXXXXXX FACTORS, INC. (individually, each a "LENDER" and
collectively, the "LENDERS"), THE CHASE MANHATTAN BANK, as agent for the Lenders
(in such capacity, together with its successors in such capacity, the "AGENT")
and XXXXXXX FACTORS, INC., as servicing agent for the Lenders (in such capacity,
together with its successors in such capacity, the "SERVICING AGENT" and
together with the Agent, the "AGENTS").
PRELIMINARY STATEMENTS:
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agents have
entered into a Second Amended and Restated Credit Agreement and Guaranty dated
as of March 24, 1997, as amended by a First Amendment, dated as of May 22, 1997
and a Second Amendment, dated as of February 18, 1998 (as so amended, the
"CREDIT AGREEMENT"); and
WHEREAS, the terms defined in the Credit Agreement are used in this
Third Amendment as in the Credit Agreement unless otherwise defined in this
Third Amendment;
NOW, THEREFORE, the Borrowers, the Lenders and the Agents have agreed
to amend certain provisions of the Credit Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 3.01 of the Credit Agreement is hereby
amended by deleting the last line of the chart that is set forth in the
second paragraph of such Section and inserting in lieu thereof the
following:
"January 1, 1998 to and
including March 31, 1998 $13,000,000"
(b) Section 3.01 of the Credit Agreement is hereby
further amended by deleting the last line of the chart that is set
forth in third paragraph of such Section and inserting in lieu thereof
the following:
"January 1, 1998 to and
including March 31, 1998 $1,750,000"
1
2
SECTION 2. CONDITIONS OF EFFECTIVENESS TO THIS THIRD AMENDMENT. This
Third Amendment shall become effective on the date on which each of the
following conditions have been satisfied: (i) the Borrowers, the Lenders and the
Agents shall each have executed and delivered this Third Amendment; (ii) payment
by the Borrower of all costs and expenses of the Agents and the Lenders
(including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection with this Third Amendment and the Credit Agreement; and
(iii) receipt of such other documents, opinions or agreements as either of the
Agents or any of the Lenders may reasonably request.
SECTION 3. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS. Upon the
effectiveness of Section 1 hereof, on and after the date hereof each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import, and each reference in the other Facility Documents to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. Except as specifically amended above, the Credit Agreement and
all other Facility Documents shall remain in full force and effect and are
hereby ratified and confirmed. The execution, delivery and effectiveness of this
Third Amendment shall not operate as a waiver of any right, power or remedy of
any Lender or Agent under any of the Facility Documents, nor constitute a waiver
of any provision of the Facility Documents.
SECTION 4. COSTS AND EXPENSES. The Borrowers agree to pay the Agent,
the Servicing Agent, and the Lenders on demand all costs, expenses and charges,
in connection with the preparation, reproduction, execution, delivery, filing,
recording and administration of this Third Amendment and any other instruments
and documents to be delivered hereunder, including, without limitation, the fees
and out-of-pocket expenses of counsel for the Agent, the Servicing Agent, and
each Lender with respect thereto and with respect to advising the Agent, the
Servicing Agent, and each Lender as to its rights and responsibilities under
such documents, and all costs and expenses, if any, in connection with the
enforcement of any such documents.
SECTION 5. GOVERNING LAW. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. HEADINGS. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Third Amendment for any other purpose.
SECTION 7. COUNTERPARTS. This Third Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Third Amendment by
signing any such counterpart.
2
3
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed as of the day and year first above written.
BISCAYNE APPAREL, INC.
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
------------------------------------
Name: Xxxxx Xxxxxxxxxx, Xx.
Title:
BISCAYNE APPAREL INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
------------------------------------
Name: Xxxxx Xxxxxxxxxx, Xx.
Title:
MACKINTOSH OF NEW ENGLAND CO.
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
------------------------------------
Name: Xxxxx Xxxxxxxxxx, Xx.
Title:
M & L INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
------------------------------------
Name: Xxxxx Xxxxxxxxxx, Xx.
Title:
THE CHASE MANHATTAN BANK,
as Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXXX FACTORS, INC., as Lender
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
3
4
CORESTATES BANK, N.A., as Lender
By: /s/ X.X. Xxxx
------------------------------------
Name: X.X. Xxxx
Title: Vice President
BANKBOSTON, N. A., as Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
FLEET BANK, N.A., as Lender
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXXX FACTORS, INC., as
Servicing Agent
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
4
