Exhibit 10.2.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 18, 1998, is by and among Xxxxxx American Corp. (the "Borrower"),
Xxxxxx American Investment Corp. (the "Parent"), Xxxxxx American Group, Inc.
("Interco") and the certain subsidiaries of the Parent identified on the
signature pages hereto (together with the Parent and Interco, the "Guarantors"),
the lenders identified on the signature pages hereto (the "Lenders"),
NationsBank, N.A., as agent for the Lenders (in such capacity, the "Agent") and
Gleacher NatWest Inc., as documentation agent (the "Documentation Agent").
Capitalized terms used herein which are not defined herein and which are defined
in the Credit Agreement shall have the same meanings as therein defined.
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders, the Agent and the
Documentation Agent have entered into that certain Credit Agreement dated as of
May 18, 1998 and as amended as of May 27, 1998, (as so amended the "Existing
Credit Agreement");
WHEREAS, the parties to the Existing Credit Agreement have agreed to amend
the Existing Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in Subpart
3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
PART 2
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part 2. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall
continue in full force and effect.
SUBPART 2.1 Definition of Consolidated EBITDA Adjustment. The definition of
"Consolidated EBITDA Adjustment" set forth in Section 1.1 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
"Consolidated EBITDA Adjustment" means (i) the sum of (A) for each of
the fiscal quarters ending September 30, 1997, December 31, 1997 and March
28, 1998, the amount indicated for Consolidated EBITDA for such fiscal
quarter on Schedule 1.1A, plus (B) for each of the fiscal quarters ending
December 31, 1997, March 28, 1998, June 27, 1998, September 26, 1998 and
December 31, 1998, the amount indicated for such fiscal quarter on Schedule
1.1A-1 in respect of losses for such period associated with the
discontinuance of the Burberrys and Xxxx Xxxxx Xxxxxxx licensed product
lines, and (ii) for any fiscal quarter after March 28, 1998, the amount, if
any, of reorganization charges taken during such fiscal quarter in respect
of (A) up to $3.3 million of facility closing and re-engineering costs
accrued by the Borrower and its Subsidiaries prior to the Closing Date, (B)
up to $550,000 of losses accrued by the Borrower and its Subsidiaries prior
to the Closing Date associated with (1) the Canadian retail operations of
the Borrower and its Subsidiaries and (2) the Mexican and Guatemalan
operations of the Borrower and its Subsidiaries, (C) up to $4.0 million of
bankruptcy reorganization costs incurred by the Borrower and its
Subsidiaries on or prior to the Closing Date and (D) the costs and expenses
of the Parent, the Borrower and its Subsidiaries incurred in connection
with the Recapitalization, in each case calculated in accordance with GAAP.
SUBPART 2.2 New Schedule 1.1A-1. A new schedule in the form of Schedule
1.1A-1 attached hereto is added to the Existing Credit Agreement immediately
following existing Schedule 1.1A thereof.
PART 3
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Amendment No. 2 Effective Date. This Amendment shall be and
become effective as of September 30, 1998 (the "Amendment No. 2 Effective Date")
when all of the conditions set forth in this Part 3 shall have been satisfied,
and thereafter this Amendment shall be known, and may be referred to, as
"Amendment No.
2."
SUBPART 3.1.1 Execution of Counterparts of Amendment. The Agent shall
have received counterparts of this Amendment, which collectively shall have
been duly executed on behalf of each of the Borrower, the Guarantors and
the Required Lenders.
SUBPART 3.1.2 Other Items. The Agent shall have received such other
documents, agreements or information which may be reasonably requested by
the Agent.
PART 4
MISCELLANEOUS
SUBPART 4.1 Representations and Warranties. Borrower hereby represents and
warrants to the Agent and the Lenders that, after giving effect to this
Amendment, (a) no Default or Event of Default exists under the Credit Agreement
or any of the other Credit Documents and (b) the representations and warranties
set forth in Section 6 of the Existing Credit Agreement are, subject to the
limitations set forth therein, true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date).
SUBPART 4.2 Reaffirmation of Credit Party Obligations. Each Credit Party
hereby ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is bound by all terms of the Credit Agreement applicable to it and (b) that it
is responsible for the observance and full performance of its respective Credit
Party Obligations.
SUBPART 4.3 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.4 Instrument Pursuant to Existing Credit Agreement. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SUBPART 4.5 References in Other Credit Documents. At such time as this
Amendment No. 2 shall become effective pursuant to the terms of Subpart 3.1, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Amendment No. 2.
SUBPART 4.6 Counterparts/Telecopy. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of this Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original shall be delivered.
SUBPART 4.7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
SUBPART 4.8 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
IN WITNESS WHEREOF the Borrower, the Guarantors and the Required Lenders
have caused this Amendment to be duly executed on the date first above written.
BORROWER: XXXXXX AMERICAN Corp.
By:
Name:
Title:
GUARANTORS: Xxxxxx American Investment Corp.,
a Delaware corporation
By:
Name:
Title:
Xxxxxx American Group, Inc.,
a Delaware corporation
By:
Name:
Title:
CONSUMER DIRECT CORPORATION,
a Delaware corporation
By:
Name:
Title:
ARROW FACTORY STORES, INC.,
a Delaware corporation
By:
Name:
Title:
[Signatures Continued]
GAKM RESOURCES CORPORATION,
a Delaware corporation
By:
Name:
Title:
XXXXXX PEABODY RESOURCES CORPORATION,
a Delaware corporation
By:
Name:
Title:
XXXXXX XXXXXXX HOLDING CORP.,
a Delaware corporation
By:
Name:
Title:
XXXXXX, PEABODY & CO., INC.,
a Delaware corporation
By:
Name:
Title:
BIDERTEX SERVICES INC.,
a Delaware corporation
By:
Name:
Title:
[Signatures Continued]
GREAT AMERICAN KNITTING XXXXX, INC.,
a Delaware corporation
By:
Name:
Title:
XXXXXX DESIGNER GROUP, INC.,
a Delaware corporation
By:
Name:
Title:
BIDERMANN TAILORED CLOTHING, INC.,
a Delaware corporation
By:
Name:
Title:
LENDERS: NATIONSBANK, N. A.
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
Name:
Title:
FLEET BANK, N.A.
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
Name:
Title:
By:
Name:
Title:
FIRST SOURCE FINANCIAL LLP,
By: First Source Financial Inc., its manager
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
MARINE MIDLAND BANK
By:
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx Xxxxxx & Co., L.P. as Investment
Advisor
By:
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
Name:
Title:
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By:
Name:
Title:
STRATA FUNDING LTD.
By:
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By:
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
Name:
Title:
SCHEDULE 1.1A-1
ADDITIONAL FINANCIAL INFORMATION
-------------- ----------- ------------ ------------- -------------
For the For the For the For the For the
Fiscal Fiscal Fiscal Fiscal Fiscal
Quarter Ended Quarter Quarter Quarter Quarter
December 31, Ended Ended Ended Ended
1997 March 28, June 27, September December
1998 1998 26, 1998 31, 1998
-------------- ----------- ------------ ------------- -------------
The lesser of $2.3
$0.7 million $0.5 $1.1 $3.2 million million and actual
million million lossesof Xxxxxx
Designer Group, Inc.
associated with the
discontinuance of the
Burberrys and Xxxx
Xxxxx Xxxxxxx
licensed product
lines for such fiscal
quarter
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