EXHIBIT 10.17(b)
SECOND AMENDMENT
TO
AMENDED AND RESTATED FINANCING AGREEMENT
Second Amendment, dated as of January 29, 1999 to the Amended and Restated
Financing Agreement, dated as of June 18, 1998, as amended through the date
hereof (the "Financing Agreement"), by and among Norton XxXxxxxxxx, Inc., a
Delaware corporation (the "Company"), Norton XxXxxxxxxx of Xxxxxx, Inc., a New
York corporation ("Squire"), Miss Xxxxx, Inc., a Delaware corporation ("Miss
Xxxxx"), Xxxx-Xx Knitwear, Inc., a Delaware corporation formerly known as JJ
Acquisition Corp. ("Xxxx-Xx" and together with Squire and Miss Xxxxx, each a
"Borrower" and collectively, the "Borrowers"), the lenders party thereto (each a
"Lender" and collectively the "Lenders"), NationsBanc Commercial Corporation,
as collateral agent for the Lenders (in such capacity, the "Collateral Agent"),
The CIT Group/Commercial Services, Inc., as administrative agent for the Lenders
(in such capacity, the "Administrative Agent") and Fleet Bank NA, as
documentation agent for the Lenders (in such capacity, the "Documentation Agent"
and together with the Collateral Agent and the Administrative Agent, each an
"Agent" and collectively, the "Agents").
The Company, the Borrowers, the Required Lenders and the Agents desire to
amend certain terms and conditions in the Financing Agreement as hereafter set
forth.
In addition, the Company and the Borrowers have advised the Agents that
it is intended that XxXxxxxxxx Apparel Group Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company ("Group") be merged into the Company,
whereby the Company will be the surviving corporation and the Company shall
change its name to "XxXxxxxxxx Apparel Group Inc." (the "Merger"). The Company
and the Borrowers have requested that the Required Lenders waive any Event of
Default under the Financing Agreement by reason of the occurrence of such Merger
and consent to such Merger and the Required Lenders are willing to waive such
Event of Default and consent to such Merger on the terms and conditions herein.
Accordingly, the Company, the Borrowers, the Agents and the Required
Lenders hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
-----------
defined herein are used herein as defined in the Financing Agreement.
2. Financial Covenants.
-------------------
(a) Net Worth. Section 7.02(p)(i) of the Financing Agreement is
---------
hereby amended by deleting the amount corresponding to the Fiscal Quarter ending
October 31, 1998 and substituting in lieu thereof $41,000,000.
(b) Fixed Charge Coverage Ratio. Section 7.02(p)(iv) of the
--------------------------
Financing Agreement is hereby amended by deleting the ratio corresponding to the
Fiscal Quarter ending October 31, 1998 and substituting in lieu thereof .90:1.0.
3. Schedule 6.01(g). Schedule 6.01(g) to the Financing Agreement is
----------------
hereby amended to include the items described on Annex A hereto.
4. Waiver and Consent.
------------------
(a) Pursuant to Section 12.03 of the Financing Agreement and in
reliance on the representations and warranties set forth in Section 5 below, the
Required Lenders hereby waive any Event of Default that would otherwise arise
under Section 10.01 (c) of the Financing Agreement from any non-compliance by
the Company with the provisions of Section 7.02(d)(i) of the Financing Agreement
by reason of the Merger. The Company and the Borrowers have represented to the
Agents and the Required Lenders that the sole reason for the Merger is to
effect the name change of the Company to "XxXxxxxxxx Apparel Group Inc." This
Waiver and Consent is conditioned on such representation being true and correct.
(b) This Waiver and Consent shall be effective only in this specific
instance and does not allow any other or further departure from the terms of
the Financing Agreement or the other Loan Documents, which terms shall
constitute in full force and effect. This Waiver and Consent shall also be
conditioned on that all documents necessary to effect the Merger will be filed
and that such documents (or copies thereof) be delivered to the Administrative
Agent.
5. Conditions to Effectiveness. This Amendment shall be effective as of
---------------------------
October 31, 1998 (the "Amendment Effective Date"), provided that the following
conditions subsequent shall have been satisfied in full:
(i) The representations and warranties contained in this
Amendment and in Article VI of the Financing Agreement shall be true and
correct in all material respects on and as of the Amendment Effective Date
and the date hereof as though made on and as of each of such dates (except
where such representations and warranties relate to an earlier date in
which case such representations and warranties shall be true and correct as
of such earlier date); no Event of Default or Default shall have occurred
an be continuing on the Amendment Effective Date or on the date hereof, or
result from this Amendment becoming effective in accordance with its terms.
(ii) The Agents shall have received counterparts of this
Amendment which bear the signatures of the Company, the Borrowers and each
of the Required Lenders.
-2-
(iii) The Administrative Agent shall have received a
certified copy of the Certificate of Merger, filed with the Secretary of
State of the State of Delaware to effect the Merger.
(iv) All legal matters incident to this Amendment shall be
satisfactory to the Agents and their counsel.
6. Representations and Warranties. Each of the Company and the
------------------------------
Borrowers represents and warrants to the Lenders as follows:
(a) The Company and each Borrower (i) is duly organized, validly
existing and in good standing under the laws of the state of its organization
and (ii) has all requisite power, authority and legal right to execute, deliver
and perform this Amendment, all other documents executed by it in connection
with this Amendment, and to perform the Financing Agreement, as amended hereby.
(b) The execution, delivery and performance by the Company and
the Borrowers of this Amendment and all other documents executed by it in
connection with this Amendment and the performance by the Company and the
Borrowers of the Financing Agreement as amended hereby (i) have been duly
authorized by all necessary action, (ii) do not and will not violate or create a
default under the Company's or any Borrower's organizational documents, any
applicable law or any contractual restriction binding on or otherwise affecting
the Company or any Borrower or any of the Company's or such Borrower's
properties, and (iii) except as provided in the Loan Documents, do not and will
not result in or require the creation of any Lien, upon or with respect to the
Company's or any Borrower's property.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required in connection with the due execution, delivery and performance by the
Company or any of the Borrowers of this Amendment and all other documents
executed by it in connection with this Amendment and the performance by the
Company and the Borrowers of the Financing Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended
hereby, and all other documents executed in connection with this Amendment
constitute the legal, valid and binding obligations of the Company and the
Borrowers party thereto, enforceable against such Persons in accordance with
their terms except to the extent the enforceability thereof may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect affecting generally the enforcement of
creditors' rights and remedies and by general principles of equity.
(e) The representations and warranties contained in Article VI
of the Financing Agreement are true and correct on and as of the Amendment
Effective Date and as of the date hereof as though made on and as of the
Amendment Effective Date and the date hereof (except to the extent such
representations and warranties expressly relate to an earlier date), and no
Event of Default or Default, has occurred and is continuing on and as of the
Amendment Effective Date or on the date hereof.
-3-
7. Continued Effectiveness of Financing Agreement. Each of the
----------------------------------------------
Company and the Borrowers hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Amendment Effective Date of this Amendment all references in any such Loan
Document to "the Financing Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment, and (ii) confirms and agrees
that to the extent that any such Loan Document purports to assign or pledge to
the Collateral Agent, or to grant to the Collateral Agent a Lien on any
collateral as security for the Obligations of the Company and the Borrowers
from time to time existing in respect of the Financing Agreement and the Loan
Documents, such pledge, assignment and/or grant of a Lien is hereby ratified and
confirmed in all respects.
8. Miscellaneous.
-------------
(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) The Borrowers will pay on demand all reasonable out-of-pocket
costs and expenses of the Agents in connection with the preparation, execution
and delivery of this Amendment, including, without limitation, the reasonable
fees, disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to
the Agents.
-4-
ANNEX A
-------
Amendment to
Schedule 6.01(g)
Norton XxXxxxxxxx, Inc. (the "Company") and Norton XxXxxxxxxx of Xxxxxx,
Inc. ("Squire"), are parties to a lawsuit filed in New York Supreme Court, New
York County, by Railroad Enterprises, Inc. and Cutting Edge Services, Inc.,
Squire's distribution and cutting contractors, respectively, alleging breach of
and related claims. Norton and Squire do not believe that is any merit to this
action and will vigorously defend this proceeding.
Norton is a party to lawsuits filed in New York Supreme Court, New York
County, by Arch Trading, Inc., and Hyunjin Honduras alleging breach of contract.
Norton does not believe that there is any merit to these actions and will
vigorously defend these proceedings.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
NORTON XXXXXXXXXX, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: VP, CFO, Secretary & Treasurer
--------------------------------
NORTON XXXXXXXXXX OF XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: VP, CFO, Secretary & Treasurer
--------------------------------
MISS XXXXX, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: VP, CFO, Secretary & Treasurer
--------------------------------
XXXX-XX KNITWEAR, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: VP, CFO, Secretary & Treasurer
--------------------------------
AGENTS AND LENDERS
------------------
THE CITY GROUP/COMMERCIAL SERVICES,
INC., as Administrative Agent
By:___________________________________
Title:________________________________
NATIONSBANC COMMERCIAL
CORPORATION, as Collateral Agent
By:___________________________________
Title:________________________________
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NORTON XXXXXXXXXX, INC.
By:__________________________________
Title:_______________________________
NORTON XXXXXXXXXX OF XXXXXX, INC.
By:__________________________________
Title:_______________________________
MISS XXXXX, INC.
By:__________________________________
Title:_______________________________
XXXX-XX KNTTWEAR, INC.
By:__________________________________
Title:_______________________________
AGENTS AND LENDERS
------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Title: Vice President
-------------------------------
NATIONSBANC COMMERCIAL
CORPORATION, as Collateral Agent
By:__________________________________
Title:_______________________________
-7-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NORTON XXXXXXXXXX, INC.
By:__________________________________
Title:_______________________________
NORTON XXXXXXXXXX OF XXXXXX, INC.
By:__________________________________
Title:_______________________________
MISS XXXXX, INC.
By:__________________________________
Title:_______________________________
XXXX-XX KNTTWEAR, INC.
By:__________________________________
Title:_______________________________
AGENTS AND LENDERS
------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Administrative Agent
By:__________________________________
Title:_______________________________
NATIONSBANC COMMERCIAL
CORPORATION, as Collateral Agent
By: /s/
----------------------------------
Title: Senior Vice President
-------------------------------
-8-
FLEET BANKNA, as Documentation Agent
By: /s/ Xxxxxxx Xxxxxxxxxxx
----------------------------------
Title: Vice President
-------------------------------
SANWA BUSINESS CREDIT CORPORATION
By:__________________________________
Title:_______________________________
ISRAEL DISCOUNT BANK OF NEW YORK
By:__________________________________
Title:_______________________________
SUNROCK CAPITAL CORP.
By:__________________________________
Title:_______________________________
PNC BANK NATIONAL ASSOCIATION
By:__________________________________
Title:_______________________________
XXXXXX FINANCIAL CORPORATION
By:__________________________________
Title:_______________________________
-9-
FLEET BANK NA, as Documentation Agent
By:__________________________________
Title:_______________________________
[SANWA BUSINESS CREDIT CORPORATION]
By: /s/
----------------------------------
Title: VP
_______________________________
[ISRAEL DISCOUNT BANK OF NEW YORK]
By:__________________________________
Title:_______________________________
[SUNROCK CAPITAL CORP.]
By:__________________________________
Title:_______________________________
[PNC BANK, NATIONAL ASSOCIATION]
By:__________________________________
Title:_______________________________
[XXXXXX FINANCIAL CORPORATION]
By:__________________________________
Title:_______________________________
-00-
XXXXX XXXX NA, as Documentation Agent
By:__________________________________
Title:_______________________________
SANWA BUSINESS CREDIT CORPORATION
By:__________________________________
Title:_______________________________
ISRAEL DISCOUNT BANK OF NEW YORK
By:__________________________________
Title:_______________________________
SUNROCK CAPITAL CORP.
By: /s/
----------------------------------
Title: VP
-------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:__________________________________
Title:_______________________________
XXXXXX FINANCIAL CORPORATION
By:__________________________________
Title:_______________________________
-00-
XXXXX XXXX NA, as Documentation Agent
By:__________________________________
Title:_______________________________
SANWA BUSINESS CREDIT CORPORATION
By:__________________________________
Title:_______________________________
ISRAEL DISCOUNT BANK OF NEW YORK
By:__________________________________
Title:_______________________________
SUNROCK CAPITAL CORP.
By:__________________________________
Title:_______________________________
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxx
----------------------------------
Title: [ILLEGIBLE TEXT]
-------------------------------
XXXXXX FINANCIAL CORPORATION
By:__________________________________
Title:_______________________________
-00-
XXXXX XXXX NA, as Documentation Agent
By:__________________________________
Title:_______________________________
SANWA BUSINESS CREDIT CORPORATION
By:__________________________________
Title:_______________________________
ISRAEL DISCOUNT BANK OF NEW YORK
By:__________________________________
Title:_______________________________
SUNROCK CAPITAL CORP.
By:__________________________________
Title:_______________________________
PNC BANK, NATIONAL ASSOCIATION
By:__________________________________
Title:_______________________________
XXXXXX FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
-------------------------------
-13-
