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EXHIBIT 10.2
SEVENTH AMENDMENT AND WAIVER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND GUARANTY
SEVENTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT AND GUARANTY (the "SEVENTH AMENDMENT") dated as of September 21,1998
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, a Second Amendment, dated as of February 18, 1998 (the "SECOND
AMENDMENT"), a Third Amendment, dated as of March 6, 1998, a Fourth Amendment,
dated as of March 25, 1998, a Fifth Amendment and Waiver dated as of June 8,
1998 and a Sixth Amendment dated as of June 30, 1998 (as so amended, the
"CREDIT AGREEMENT"); and
WHEREAS, the terms defined in the Credit Agreement are used
in this Seventh Amendment as in the Credit Agreement unless otherwise defined
herein;
WHEREAS, the Borrowers and the Guarantors have requested that
certain provisions of the Credit Agreement be amended as hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. LIMITED WAIVER. Each Lender and each Agent
hereby waive compliance with:
(i) the provisions contained in the definition of
Revolving Credit Loans Permitted Overadvance (Month End) which
require that the consolidated overadvance shall not be equal
to or greater than $3,500,000 at month end for August 1998;
(ii) the provisions contained in the definition of
Revolving Credit Loans Permitted Overadvance (Month End) which
requires that the aggregate outstanding amount of Revolving
Credit Loans made to BAI during the month of August 1998 which
are used to finance Xxxxx shall be less than the Eligible
Accounts of Xxxxx included in the computation of the
Collateral Borrowing Base as set forth on the
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Reconciliation Report for the month of
August 1998 in an amount equal to or greater than $1,000,000;
(iii) the Events of Default arising as a result of
the failure by the Borrowers to make mandatory prepayments
pursuant to Section 2.08(ii) of the Credit Agreement
following the occurrence of the foregoing; and
(iv) the provisions contained in Section 11.02 of
the Credit Agreement which require that Consolidated Tangible
Net Worth shall be at least $3,250,000 and $4,000,000 as of
June 30, 1998 and July 31, 1998, respectively.
SECTION 2. AMENDMENT TO CREDIT AGREEMENT. The Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
amending and restating the following definitions in their
entirety as follows:
"Revolving Credit Loans Maximum Outstanding" means
during the period specified below the amounts specified below
for such period:
PERIOD AMOUNT
------ ------
Fourth Closing Date to and
including April 30, 1998 $13,750,000
May 1, 1998 to and including
May 31, 1998 $16,750,000
June 1, 1998 to and including
June 30, 1998 $25,000,000
July 1, 1998 to and including
July 31, 1998 $32,000,000
August 1, 1998 to and
including August 31, 1998 $35,000,000
September 1, 1998 to and
including September 20, 1998 $35,000,000
September 21, 1998 to and
including September 30, 1998 $30,000,000
October 1, 1998 to and
including October 20, 1998 $28,750,000
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October 21, 1998 to and
including October 30, 1998 $23,000,000
October 31, 1998 to and
including November 19, 1998 $20,500,000
November 20, 1998 to and
including November 30, 1998 $10,750,000
December 1, 1998 to and
including December 20, 1998 $ 8,000,000
December 21, 1998 to and
including December 31, 1998 $ 5,000,000
January 1, 1999 to and
including February 28, 1999 $ 7,000,000
March 1, 1999 to and including
March 31, 1999 $ 9,000,000
"Revolving Credit Loans Permitted Overadvance (During the
Month)" means the amount specified below for each day during the month
specified below other than the last day of the applicable month:
MONTH AMOUNT
----- ------
March, 1998 $ 5,000,000
April, 1998 $ 9,500,000
May, 1998 $ 11,500,000
June, 1998 $ 12,500,000
July, 1998 $ 16,000,000
August, 1998 $ 12,250,000
September, 1998 $ 7,750,000
October, 1998 $ 500,000
November, 1998 $ (4,000,000)
December, 1998 $ (8,000,000)
January, 1999 $ (4,000,000)
February, 1999 $ (2,500,000)
March, 1999 $ (1,000,000)
PROVIDED, that, to the extent any Arlington Net Proceeds are received by the
Borrowers during the months of July 1998 or August 1998, the amounts set forth
opposite such months shall be reduced on a prospective basis by such amount of
proceeds received.
In addition, the proceeds of Revolving Credit Loans made to
BAI which are used to finance Xxxxx shall for each day during the period
specified below other than the last day of the applicable month be equal to or
less than the sum of (1) the Eligible
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Accounts of Xxxxx relied on in computing the Collateral Borrowing Base as set
forth on the Reconciliation Report and (2) the amounts specified below for each
day during the period specified below other than the last day of the applicable
month:
PERIOD AMOUNT
------ ------
March 1, 1998 to and
including May 31, 1998 $ 3,750,000
June 1, 1998 to and
including June 30, 1998 $ 4,500,000
July 1, 1998 to and
including July 31, 1998 $ 4,500,000
August 1, 1998 to and
including August 31, $ 4,000,000
1998
September 1, 1998 to
and including September
29, 1998 $ 4,000,000
October 1, 1998 to and
including October 30, $ (750,000)
1998
November 1, 1998 to
and including November
29, 1998 $ (1,750,000)
December 1, 1998 to
and including December $ (2,250,000)
30, 1998
January 1, 1999 to and
including January 30, $ (2,000,000)
1999
February 1, 1999 to and
including February 27,
1999 $ (750,000)
March 1, 1999 to and
including March 30, 1999 $ 0
PROVIDED, that, to the extent any Arlington Net Proceeds are received by the
Borrowers during the months ended July 31, 1998 or August 31, 1998, the amounts
set forth opposite such months shall be reduced on a prospective basis by such
amount of proceeds received.
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For purposes of this definition, the numbers set forth in
parenthesis are negative numbers.
"Revolving Credit Loans Permitted Overadvance (Month End)"
means the amounts specified below for the last day of each month specified
below:
MONTH AMOUNT
----- ------
March, 1998 $ 4,000,000
April, 1998 $ 9,500,000
May, 1998 $ 7,500,000
June, 1998 $ 11,000,000
July, 1998 $ 10,250,000
August, 1998 $ 3,500,000
September, 1998 $ 2,000,000
October, 1998 $ (8,000,000)
November, 1998 $ (9,500,000)
December, 1998 $(10,500,000)
January, 1999 $ (6,000,000)
February, 1999 $ (4,000,000)
March, 1999 $ (1,500,000)
PROVIDED, that, to the extent any Arlington Net Proceeds are received by the
Borrowers during the months July 1998 or August 1998, the amounts set forth
opposite such months shall be reduced on a prospective basis by such amount of
proceeds received.
Notwithstanding the foregoing, the proceeds of the Revolving
Credit Loans made to Mackintosh shall as of the last day of each month
specified below be equal to or less than the sum of (1) the Eligible Accounts
of Mackintosh relied on in computing the Collateral Borrowing Base as set forth
on the Reconciliation Report and (2) the amounts specified below for each month
specified below:
MONTH AMOUNT
----- ------
March, 1998 $ 3,250,000
April, 1998 $ 4,000,000
May, 1998 $ 4,750,000
June, 1998 $ 6,000,000
July, 1998 $ 6,250,000
August, 1998 $ 6,250,000
September, 1998 $ 5,250,000
October, 1998 $ 1,500,000
November, 1998 $ (750,000)
December, 1998 $(1,800,000)
January, 1999 $ 0
February, 1999 $ 0
March, 1999 $ 0
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In addition, the proceeds of Revolving Credit Loans made to
BAI which are used to finance Xxxxx shall as of the last day of each month
specified below be equal to or less than the sum of (1) the Eligible Accounts
of Xxxxx relied on in computing the Collateral Borrowing Base as set forth on
the Reconciliation Report and (2) the amounts specified below for each month
specified below:
MONTH AMOUNT
----- ------
March, 1998 $ 3,000,000
April, 1998 $ 3,000,000
May, 1998 $ 3,000,000
June, 1998 $ 4,000,000
July, 1998 $ 3,750,000
August, 1998 $ 1,000,000
September, 1998 $ 3,000,000
October, 1998 $(2,500,000)
November, 1998 $(3,000,000)
December, 1998 $(2,750,000)
January, 1999 $(1,500,000)
February, 1999 $ (750,000)
March, 1999 $ 0
In addition, each of the Borrowers agree that no further
intercompany loans or advances shall be made by any Borrower or Subsidiary from
and after the Fourth Closing Date and that intercompany loans and advances by
and among the Borrowers outstanding as of the Fourth Closing Date shall not be
repaid or reduced by any amounts, other than reductions or repayments arising
from non-cash offsets of federal income tax provisions and allocations of
Apparel's corporate overhead and management fee expenses among Apparel, BAI,
Mackintosh and M&L conducted in the ordinary course of business in accordance
with GAAP.
For purposes of this definition, the numbers set forth in
parenthesis are negative numbers.
(b) Section 9.10 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
9.10 INVESTMENT ADVISOR. Retain an investment advisor
reasonably satisfactory to the Agents for purposes
of strategic planning, which investment advisor
shall (i) establish August 28, 1998 as the date by
which letters of intent must be issued by potential
purchasers of one or more of the Borrowers, and (ii)
establish September 11, 1998 as the date by which
bids for the purchase of one or more of the
Borrowers must be received.
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SECTION 3. CONDITIONS OF EFFECTIVENESS TO THIS SEVENTH
AMENDMENT. This Seventh Amendment shall become effective on the date on which
each of the following conditions have been satisfied or waived:
(i) the Borrowers, the Lenders and the Agents shall each
have executed and delivered this Seventh Amendment;
(ii) payment by the Borrowers of (i) all costs and
expenses of the Agents and the Lenders (including,
without limitation, reasonable attorneys' fees and
expenses) incurred in connection with this Seventh
Amendment and the Credit Agreement and (ii) all
outstanding legal fees and expenses due and payable
to Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel for
the Agent;
(iii) payment by the Borrowers to the Agent for the
account of the Lenders a non-refundable amendment
fee equal to $25,000. Each Lender shall be entitled
to twenty percent (20%) of such amendment fee; and
(iv) receipt of such other documents, opinions or
agreements as either of the Agents or any of the
Lenders may reasonably request, including, without
limitation, a schedule listing, for each Borrower,
the categories of information listed in the schedule
annexed to the Second Amendment.
SECTION 4. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS.
Upon the effectiveness of Section 2 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. Except as specifically waived
herein, the execution, delivery and effectiveness of this Seventh 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 5. REPRESENTATIONS AND WARRANTIES. The Borrowers
hereby represent and warrant that each of the representations and warranties
contained in Article 8 of the Credit Agreement and in each of the other
Facility Documents is true and correct as of the date hereof (provided that any
representations and warranties which speak to a specific date shall remain true
and correct as of such date).
SECTION 6. 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 Seventh 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.
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SECTION 7. GOVERNING LAW. This Seventh Amendment shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed wholly within such State.
SECTION 8. HEADINGS. Section headings in this Seventh
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Seventh Amendment for any other purpose.
SECTION 9. COUNTERPARTS. This Seventh 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
Seventh Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Seventh Amendment to be duly executed as of the day and year first above
written.
BISCAYNE APPAREL, INC.
By:
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Name:
Title:
BISCAYNE APPAREL INTERNATIONAL, INC.
By:
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Name:
Title:
MACKINTOSH OF NEW ENGLAND CO.
By:
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Name:
Title:
M & L INTERNATIONAL, INC.
By:
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Name:
Title:
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THE CHASE MANHATTAN BANK,
as Lender
By:
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Name:
Title:
XXXXXXX FACTORS, INC., as Lender
By:
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Name:
Title:
CORESTATES BANK, N.A., as Lender
By:
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Name:
Title:
BANKBOSTON, N. A., as Lender
By:
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Name:
Title:
FLEET BANK, N.A., as Lender
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as Agent
By:
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Name:
Title:
XXXXXXX FACTORS, INC., as
Servicing Agent
By:
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Name:
Title:
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