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Exhibit 10.30
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND GUARANTY
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT AND
GUARANTY (the "SECOND AMENDMENT") dated as of February 18, 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 MILBERG 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 MILBERG 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
(as so amended, the "CREDIT AGREEMENT"); and
WHEREAS, 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;
NOW, THEREFORE, 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 3 hereof, hereby amended as follows:
(a) The definition of "Andy Johns" is hereby amended in
its entirety as follows:
"'Andy Johns' means Andy Johns Fashions International, a
division of BAI during the period prior to January 1, 1998,
and from and after January 1, 1998 a division of Mackintosh".
(b) The definition of "Revolving Credit Loans Maximum
Outstanding" is hereby amended by (i) deleting the amount "$7,000,000" contained
therein and inserting in lieu thereof the amount "$9,300,000" and (ii) deleting
the amount "9,000,000" contained therein and inserting in lieu thereof the
amount "11,300,000".
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(c) Section 3.01 of the Credit Agreement is hereby amended by
amending and restating clause (b) contained in the first paragraph thereof in
its entirety as follows:
"(b) the Revolving Credit Commitment minus the Revolving
Credit Loans and minus all unreimbursed obligations on Letters
of Credit and minus any and all overdrafts created as a result
of or in connection with the satisfaction of a reimbursement
obligation under a Letter of Credit and minus the aggregate
face amount of all outstanding Letters of Indemnity; provided
that Chase will not be required to issue a Letter of Credit
with an expiration date more than 180 days from the date of
issuance of such Letter of Credit; it being understood that
Chase will not be required to issue any Letter of Credit which
permits the beneficiary of such Letter of Credit to make a
drawing under such Letter of Credit without the presentation
of documents or documents of title where the aggregate unused
face amount of all such Letters of Credit outstanding at any
time is greater than One Hundred Fifty Thousand Dollars
($150,000)."
(d) Section 3.01 of the Credit Agreement is hereby further
amended by deleting the last line of the chart that is set forth in the second
paragraph of such Section and inserting in lieu thereof the following:
"January 1, 1998 to and
including March 6, 1998 $12,500,000"
(e) Section 3.01 of the Credit Agreement is hereby further
amended by (x) inserting immediately following the reference to "Andy Johns"
appearing in the third and fourth lines of the third paragraph of such Section
the parenthetical clause "(or, from and after January 1, 1998, Mackintosh,
including, without limitation, Andy Johns and Mackintosh's other divisions)" and
(y) deleting the last line of the chart that is set forth in such paragraph and
inserting in lieu thereof the following:
"January 1, 1998 to and
including March 6, 1998 $1,500,000"
SECTION 2. INTERCOMPANY ADVANCES. Each of the Borrowers agree that no
further intercompany loans or advances shall be made by any Borrower from and
after the date hereof and that intercompany loans and advances by and among the
Borrowers outstanding as of the date hereof shall not be repaid or reduced by
any amounts, other than reductions or repayments arising from non-cash offsets
of federal income tax provisions among Apparel, BAI, Mackintosh and M&L
conducted in the ordinary course of business in accordance with GAAP.
SECTION 3. CONDITIONS OF EFFECTIVENESS TO THIS SECOND AMENDMENT. This
Second Amendment shall become effective on the date on which each of the
following conditions have been
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satisfied: (i) the Borrowers, the Lenders and the Agents shall each have
executed and delivered this Second Amendment; (ii) payment by the Borrower of a
$50,000 amendment fee; (iii) payment by the Borrower of all costs and expenses
of the Agents and the Lenders (including, without limitation, reasonable
attorneys' fees and expenses) incurred in connection with this Second Amendment
and the Credit Agreement; and (iv) receipt of such other documents, opinions or
agreements as either of the Agents or any of the Lenders may reasonably request.
SECTION 4. REFERENCE TO AND EFFECT ON THE FACILITY DOCUMENTS. 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. 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. The execution, delivery and effectiveness of this
Second 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. 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
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 6. GOVERNING LAW. This Second Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. 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 8. 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.
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/ Peter Vandenberg, Jr.
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Name: Peter Vandenberg, Jr.
Title:
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BISCAYNE APPAREL INTERNATIONAL, INC.
By: /s/ Peter Vandenberg, Jr.
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Name: Peter Vandenberg, Jr.
Title:
MACKINTOSH OF NEW ENGLAND CO.
By: /s/ Peter Vandenberg, Jr.
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Name: Peter Vandenberg, Jr.
Title:
M & L INTERNATIONAL, INC.
By: /s/ Peter Vandenberg, Jr.
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Name: Peter Vandenberg, Jr.
Title:
THE CHASE MANHATTAN BANK,
as Lender
By: /s/ John Murphy
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Name: John Murphy
Title: Vice President
MILBERG FACTORS, INC., as Lender
By: /s/ David J. Milberg
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Name: David J. Milberg
Title: Vice President
CORESTATES BANK, N.A., as Lender
By: /s/ C.B. Cook
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Name: C.B. Cook
Title: Vice President
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BANKBOSTON, N. A., as Lender
By: /s/ David F. Eusden
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Name: David F. Eusden
Title: Director
FLEET BANK, N.A., as Lender
By: /s/ Amy H. Witryol
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Name: Amy H. Witryol
Title: Vice President
THE CHASE MANHATTAN BANK, as Agent
By: /s/ John Murphy
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Name: John Murphy
Title: Vice President
MILBERG FACTORS, INC., as
Servicing Agent
By: /s/ David J. Milberg
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Name: David J. Milberg
Title: Vice President
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