EXHIBIT 10.2
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______________________________
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
BISCAYNE APPAREL INTERNATIONAL,
INC.
By______________________________
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
MACKINTOSH OF NEW ENGLAND CO.
By______________________________
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
M & L INTERNATIONAL, INC.
By______________________________
Name: Xxxxx Xxxxxxxxxx Xx.
Title: Vice President
THE CHASE MANHATTAN BANK (successor
by merger with The Chase Manhattan
Bank, N.A.), as Lender
By___________________________
Name:
Title:
XXXXXXX FACTORS, INC., as Lender
By:_____________________________
Name:
Title:
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CORESTATES BANK, N.A., as Lender
By:_____________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as Lender
By:_____________________________
Name:
Title:
FLEET BANK, N.A. (formerly known as
NatWest Bank N.A.), as Lender
By___________________________
Name:
Title:
THE CHASE MANHATTAN BANK (successor
by merger with The Chase Manhattan
Bank, N.A.), as Agent
By____________________________
Name:
Title:
XXXXXXX FACTORS, INC., as
Servicing Agent
By:_____________________________
Name:
Title:
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