EXHIBIT 10.28
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT AND GUARANTY
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
GUARANTY (the "Second Amendment") dated as of February 24, 1997 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 (successor by merger
with The Chase Manhattan Bank, N.A.), CORESTATES BANK, N.A., THE FIRST NATIONAL
BANK OF BOSTON, FLEET BANK, N.A. (formerly known as NatWest Bank N.A.), and
XXXXXXX FACTORS, INC. (individually, each a "Lender" and collectively, the
"Lenders"), THE CHASE MANHATTAN BANK (successor by merger with The Chase
Manhattan Bank, N.A.), 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").
PRELIMINARY STATEMENT. The Borrowers, the Guarantors, the Lenders and
the Agents have entered into an Amended and Restated Credit Agreement and
Guaranty dated as of March 28, 1996, as amended by a First Amendment and Waiver
to Amended and Restated Credit Agreement dated August 30, 1996 (as so amended
and waived, the "Credit Agreement"). The terms defined in the Credit Agreement
are used in this Second Amendment as in the Credit Agreement unless otherwise
defined in this Second Amendment.
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) The following definition is added in its proper alphabetical
order:
"Cash Collateral" means a deposit by Borrowers, made in
immediately available funds, to a savings, checking or time deposit
account at the Agent or the purchase by the Borrowers of a
certificate of deposit issued by the Agent and the execution of all
documents and the taking of all steps required to give the Agent a
perfected first priority Lien in such deposit or certificate of
deposit.
(b) Section 3.01, LETTERS OF CREDIT, is amended by (i) deleting the
provisos which begin in line 15 and 16 of the first paragraph thereof and
inserting in their place the following:
"; provided, further, that Chase will not be required to issue a
Letter of Credit with a maturity date later than September 30, 1997;
provided; further, that Chase will not be required to issue or amend
a Letter of Credit with a maturity date between April 1, 1997 and
September 30, 1997 if after giving effect to the issuance thereof or
the amendment thereto the aggregate face amount of all Letters of
Credit issued by Chase with a maturity date between April 1, 1997 and
September 30, 1997 is equal to or greater than Seventeen Million Six
Hundred Thousand Dollars ($17,600,000)"
and (ii) adding after the first paragraph thereof the following:
"Notwithstanding the foregoing, on April 1, 1997, the Borrowers
shall provide a standby letter of credit with an expiration date no
earlier than November 30, 1997, in an amount equal to one hundred
five percent (105%) of the undrawn face amount of all Letters of
Credit outstanding on such date issued by a financial institution
acceptable to the Required Lenders and pursuant to which Chase can
draw for any unpaid reimbursement obligation in connection with any
and all such outstanding Letters of Credit, or in the event that the
Required Lenders determine that the proposed financial institutions
are not acceptable, the Borrowers shall provide Cash Collateral in an
amount equal to one hundred five percent (105%) of the undrawn face
amount of all Letters of Credit outstanding on such date."
(c) Section 3.03, PAYMENT OF COMMISSIONS, EXPENSES AND INTEREST, is
amended deleting the last paragraph therein and inserting in its place the
following:
"In addition to any and all of Chase's customary issuance fees
and other expenses to be paid by each Borrower to Chase for its own
account
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with respect to a Letter of Credit and Letters of Indemnity, the
applicable Borrower shall pay to Chase for the account of the Lenders
a drawing fee equal to the greater of: (1) five-sixteenths of one
percent (5/16%) of the amount drawn under such Letter of Credit or
(2) Chase's then effective minimum charge for a draw under a letter
of credit.
SECTION 2. CONDITIONS OF EFFECTIVENESS TO THIS SECOND AMENDMENT. This
Second Amendment shall become effective on the date on which the Agent shall
have received each of the following documents, in form and substance
satisfactory to the Agent and its counsel and the Lenders, and each of the
following requirements shall have been fulfilled:
(1) THIS SECOND AMENDMENT. The Borrowers, the Lenders and the Agents
shall each have executed and delivered this Second Amendment; and
(2) ADDITIONAL DOCUMENTATION. The Agent shall have received such
other approvals, opinions or documents as any Lender may reasonably request.
SECTION 3. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS. (a)
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.
(b) 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.
(c) The execution, delivery and effectiveness of this Second
Amendment shall not operate as a waiver of any present or future 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, nor constitute a
waiver of any Default or Event of Default.
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 Second Amendment and any other instruments
and documents to be delivered hereunder, including, without limitation, the fees
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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 Second 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 Second Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Second Amendment for any other purpose.
SECTION 7. COUNTERPARTS. This Second 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 Second Amendment by
signing any such counterpart.
[INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
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: Vice President
BISCAYNE APPAREL INTERNATIONAL,
INC.
By /s/ XXXXX XXXXXXXXXX XX.
-----------------------------
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
MACKINTOSH OF NEW ENGLAND CO.
By /s/ XXXXX XXXXXXXXXX XX.
-----------------------------
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
M & L INTERNATIONAL, INC.
By /s/ XXXXX XXXXXXXXXX XX.
-----------------------------
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
THE CHASE MANHATTAN BANK (successor by merger
with The Chase Manhattan Bank, N.A.), as Lender
By /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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XXXXXXX FACTORS, INC., as Lender
By:/s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CORESTATES BANK, N.A., as Lender
By:/s/ XXXX X XXXXXX
------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as Lender
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
FLEET BANK, N.A. (formerly known as
NatWest Bank N.A.), as Lender
By: /s/ X. XXXXXXX
---------------------------------
Name: X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK (successor by merger with
The Chase Manhattan Bank, N.A.), 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
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