EXHIBIT 10.3
SECOND AMENDMENT, dated as of December 31, 1996, to the
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 11,
1996 (as heretofore amended, the "Credit Agreement"), among
XXXXX XXXXXXXX U.S.A., INC., a Delaware corporation ("THUSA"),
XXXXX XXXXXXXX RETAIL, INC., a Delaware corporation ("Retail";
THUSA and Retail individually, a "Borrower" and collectively,
the "Borrowers"), XXXXX XXXXXXXX CORPORATION, a British Virgin
Islands corporation ("THC"), XXXXX XXXXXXXX (EASTERN
HEMISPHERE) LIMITED, a British Virgin Islands corporation
("THEH"), XXXXX XXXXXXXX (HK) LIMITED, a Hong Kong corporation
("THHK"), XXXXX XXXXXXXX LICENSING, INC. a Delaware corporation
("THL") and XXXXX XXXXXXXX FLAGSHIP STORES, INC., a Delaware
corporation (formerly known as Xxxxx Xxxxxxxx Womenswear,
Inc.) ("THFS"); (THC, THEH, THHK, THL and THFS individually, a
"Guarantor" and collectively, the "Guarantors"), the several
Lenders parties to the Credit Agreement (the "Lenders") and THE
CHASE MANHATTAN BANK (formerly Chemical Bank) as administrative
agent (in such capacity, the "Agent") for the Lenders.
W I T N E S S E T H
WHEREAS, THUSA, Retail and each Guarantor have requested
that Subsection 6.4 of the Credit Agreement be amended and the
Agent and the Lenders are willing to amend Subsection 6.4 of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and
mutual agreements contained herein, THUSA, Retail, each
Guarantor, the Agent and each Lender hereby agree that the
Credit Agreement is hereby amended as follows:
1. Definitions. Except as otherwise stated herein,
capitalized terms defined in the Credit Agreement and used
herein without definition shall have the respective meanings
assigned to them in the Credit Agreement.
2. Amendment to Subsection 6.4 of the Credit Agreement.
Subsection 6.4 of the Credit Agreement is hereby amended by
replacing the numbers $27,500,000 and $75,000,000 therein with
the numbers $35,000,000 and $100,000,000, respectively.
3. Conditions of Effectiveness. This Second Amendment
shall become effective, as of the date hereof, when the Agent
shall have received counterparts of this Second Amendment
executed each Borrower, each Guarantor and the Majority
Lenders.
4. Representations and Warranties. To induce the Lenders
to enter into this Second Amendment, each Borrower and each
Guarantor hereby represents and warrants that:
(a) It has the power, authority and legal right to
make and deliver this Second Amendment and to perform its
obligations under the Credit Agreement, as amended by this
Second Amendment, without any notice, consent, approval or
authorization not already obtained, and it has taken all
necessary action to authorize the same.
(b) The making and delivery of this Second Amendment,
and the performance of the Credit Agreement, as amended by
this Second Amendment, do not violate any provision of law
or any regulation applicable to it, or its charter or by-
laws, or result in the breach of or constitute a default
under or require any consent under any indenture or other
agreement or instrument to which it is a party or by which
it or any of its property may be bound or affected. The
Credit Agreement, as amended by this Second Amendment,
constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms,
except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights
generally.
(c) The representations and warranties made by it in
the Credit Agreement are true and correct on and as of the
date on which this Second Amendment becomes effective
after giving effect hereto.
(d) No Default or Event of Default has occurred and
is continuing under the Credit Agreement on and as of the
date on which this Second Amendment becomes effective.
5. Reference to and Effect on the Credit Agreement and
other Loan Documents. (a) On and after the effective date of
this Second Amendment each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like
import, and each reference in any Note or any other Loan
Document to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended hereby, the Credit
Agreement and each other Loan Document are and shall continue
to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Second Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of
any Lender under the Credit Agreement, nor constitute a waiver
of any provision of the Credit Agreement.
6. Execution in Counterparts. This Second Amendment may
be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the
same agreement.
7. Governing Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused
this Second Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above
written.
XXXXX XXXXXXXX U.S.A., INC.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
XXXXX XXXXXXXX RETAIL, INC.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
XXXXX XXXXXXXX (EASTERN
HEMISPHERE) LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
XXXXX XXXXXXXX (HK) LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
XXXXX XXXXXXXX LICENSING, INC.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
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XXXXX XXXXXXXX FLAGSHIP STORES,
INC. (f/k/a Xxxxx Xxxxxxxx
Womenswear, Inc.)
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: President
THE CHASE MANHATTAN BANK
(formerly Chemical Bank),
individually and as Agent
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Vice President
BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, N.A.
(formerly NatWest Bank N.A.)
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice
President
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CENTURY BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
SUMMIT BANK
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President &
Regional Manager
Large Corporate Group
Summit Bank
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