Exhibit 10.3(h)
AMENDMENT NO. 8 AND ASSIGNMENT TO THE FIFTH
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 8 AND ASSIGNMENT TO THE FIFTH AMENDED AND
RESTATED LOAN AGREEMENT, dated as of March 13, 2001 (this "Amendment"), by and
among G-III LEATHER FASHIONS, INC., a New York corporation (the "Borrower"), the
Lenders that have executed the signature pages hereto (individually, a "Lender"
and collectively, the "Lenders"), and FLEET NATIONAL BANK, (formerly known
as Fleet Bank, N.A.) a national banking association as agent for the Lenders
(in such capacity, together with its successors in such capacity, the "Agent"),
W I T N E S S E T H:
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WHEREAS:
A. The Borrower, the Lenders and the Agent are parties to the
Fifth Amended and Restated Loan Agreement, dated as of May 31, 1999, as further
amended hereby (as it may be further amended, modified and supplemented from
time to time, the "Loan Agreement"); and
B. Lenders would like to transfer and assign a portion of
their rights and interest in and to all the relevant Lender's rights and
obligations under the Loan Agreement.
C. The parties hereto wish to amend the Loan Agreement as
hereinafter provided;
D. Each capitalized term used but not otherwise defined herein
shall have the meaning ascribed thereto in the Loan Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement.
1.1 This Amendment and Assignment shall be deemed to be an
eighth amendment to the Fifth Amended and Restated Loan Agreement and shall not
be construed in any way as a replacement or substitution therefor. All of the
terms and conditions of, and terms defined in, this Amendment are hereby
incorporated by reference into the Loan Agreement as if such terms and
provisions were set forth in full therein.
1.2 Fleet's signature page of the Loan Agreement is amended by
changing (i) Fleet's Commitment to make Revolving Loans from November 30, 2000
to April 30, 2001 to $11,026,654.41, from May 1, 2001 to June 15, 2001 to
$15,927,389.71, from June 16, 2001 to September 15, 2001 to $20,828,125.00 from
September 16, 2001 to October 31, 2001 to $18,377,757.35 from November 1, 2001
to November 23, 2001 to $13,477,022.06 and from
November 24, 2001 to the Commitment Termination Date to $11,026,654.41 and (ii)
Fleet's Percentage of Revolving Loan Commitment to "24.50%".
1.3 Chase Manhattan's signature page of the Loan Agreement is
amended by changing (i) Chase's Commitment to make Revolving Loans from November
30, 2000 to April 30, 2001 to $9,393,075.85, from May 1, 2001 to June 15, 2001
to $13,567,776.23 from June 16, 2001 to September 15, 2001 to $17,742,476.61
from September 16, 2001 to October 31, 2001 to $15,655,126.42 from November 1,
2001 to November 23, 2001 to $11,480,426.04 and from November 24, 2001 to the
Commitment Termination Date to $9,393,075.85 and (ii) Chase's Percentage of
Revolving Loan Commitment to "20.87%".
1.4 The CIT's signature page of the Loan Agreement is amended
by changing (i) CIT's Commitment to make Revolving Loans from November 30, 2000
to April 30, 2001 to $8,984,681.50 from May 1, 2001 to June 15, 2001 to
$12,977,873.28 from June 16, 2001 to September 15, 2001 to $16,971,065.06 from
September 16, 2001 to October 31, 2001 to $14,974,469.17 from November 1, 2001
to November 23, 2001 to $10,981,277.39 and from November 24, 2001 to the
Commitment Termination Date to $8,984,681.50 and (ii) CIT's Percentage of
Revolving Loan Commitment to "19.97%".
1.5 The Israel Discount Bank of New York's signature page of
the Loan Agreement is amended by changing (i) Israel Discount Bank of New York
's Commitment to make Revolving Loans from November 30, 2000 to April 30, 2001
to $4,742,647.06 from May 1, 2001 to June 15, 2001 to $6,850,490.20 from June
16, 2001 to September 15, 2001 to $8,958,333.33 from September 16, 2001 to
October 31, 2001 to $7,904,411.76 from November 1, 2001 to November 23, 2001 to
$5,796,568.63 and from November 24, 2001 to the Commitment Termination Date to
$4,742,647.06 and (ii) Israel Discount Bank of New York 's Percentage of
Revolving Loan Commitment to "10.54%".
1.6 A new signature page for each of HSBC Bank USA and Bank
Leumi USA shall be inserted with relevant dollar amounts for Commitment to make
Revolving Loans and Percentage of Revolving Loan Commitments as specified on
Schedule A.
1.7 The provisions of Section 10.13(a)(ii) are hereby waived
solely for the purpose of this Amendment and Assignment and shall be in full
force and effect otherwise.
1.8 The Loan Agreement, the Loan Documents and all agreements,
instruments and documents executed and delivered in connection with any of the
foregoing, shall each be deemed to be amended hereby to the extent necessary, if
any, to give effect to the provisions of this Amendment. Except as so amended
hereby, the Loan Agreement and the Loan Documents shall remain in full force and
effect in accordance with their respective terms.
Section 2. Assignment
2.1 Fleet National Bank, The Chase Manhattan Bank, The CIT
Group/Commercial Services, Inc., Israel Discount Bank of New York (each, a
"Transferor" and together the "Transferors") wish to assign to HSBC Bank USA and
Bank Leumi USA (each, a "Transferee" and together the "Transferees") that
interest in and to all the relevant Transferor's
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rights and obligations under the Loan Agreement as of the date hereof (the
"Assigned Portion") and each Transferee hereby accepts said assignment and
obligations established under the Loan Agreement with respect to the Assigned
Portion, the resulting Revolving Commitments from said assignments are set forth
in Schedule A.
2.2 In connection with the assignment affected hereby by each
Transferor to each Transferee:
(a) From and after the date hereof, (a) each Transferee shall (i) be
a Lender party to the Loan Agreement for all purposes of the Loan
Agreement and the other Loan Documents; (ii) be subject to the terms
and conditions thereof; and (iii) have all of the rights, interests,
liabilities, duties and obligations of the Transferors under the Loan
Agreement and other Loan Documents to the extent of the Assigned
Portion; and (b) the Transferors shall to the extent provided in this
Amendment and Assignment relinquish such rights and interest and be
released from such liabilities, duties and obligations under the Loan
Agreement and other Loan Documents as shall have been assigned to each
Transferee hereunder.
(b) From and after the date hereof, the Agent shall make all
payments under the Loan Agreement in respect of the Assigned Portion
(including, without limitation, all payments of principal, interest and
fees, if applicable, with respect thereto) to the Transferees.
2.3. Each of the parties to this Amendment and Assignment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and perform such
further acts as such other party may reasonably request in order to effect the
purposes of this Amendment and Assignment, provided neither this Amendment and
Assignment nor any term hereof may be changed, waived, discharged or terminated
except by an instrument in writing signed by the party (including, if
applicable, any party required to evidence its consent to or acceptance of this
Amendment and Assignment) against whom enforcement of such change, waiver,
discharge or termination is sought.
Section 3. Representations and Warranties.
A. The Borrower hereby represents and warrants to the Agent
and the Lenders that:
3.1 After giving effect to the amendment of the Loan Agreement
pursuant to this Amendment and Assignment: (i) each of the representations and
warranties set forth in Article 3 of the Loan Agreement is true and correct in
all respects as if made on the date hereof, and (ii) there exists no Default or
Event of Default under the Loan Agreement after giving effect to this Amendment
and Assignment.
3.2 The Borrower has full corporate power and authority to
execute and deliver this Amendment and Assignment and to perform the obligations
on its part to be performed thereunder and under the Loan Agreement as amended
hereby.
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B. Transferors hereby represent and warrant to the Agent,
Transferees, and Borrower that:
3.3 By executing and delivering this Amendment and Assignment
each Transferor, for itself, (a) represents and warrants that it is the legal
and beneficial owner of the interest being assigned hereby free and clear of any
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Agreement or any other Loan Document, or any other instrument or document
furnished pursuant thereto; (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or any
of its respective Subsidiaries, or the performance or observance by Borrower or
any of its respective Subsidiaries of any of its obligations under the Loan
Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto.
C. Each Transferee hereby represents and warrants to the
Agent, Transferors and Borrower that:
3.4 By executing and delivering this Amendment and Assignment,
each Transferee, for itself: (a) confirms that it has received a copy of the
Loan Agreement, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Amendment and
Assignment; (b) will independently and without reliance upon the Agent, any
Transferor, or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Agreement; (c) appoints and
authorizes the Agent to take such action as the Agent on its behalf and to
exercise such powers under the Loan Agreement and the other Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; and (d) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Agreement and the other Loan Documents are required to be performed by it
as a Lender.
3.5. Each Transferor and each Transferee represents and
warrants, for itself, to the Borrower and the Agent that after giving effect to
the assignment of the Assigned Portion affected hereby, each of the Transferor
and each Transferee is in compliance with the provisions of Section 10.13 of the
Loan Agreement.
Section 4. Conditions Precedent to Amendments.
The effectiveness of the amendments and assignments contained
in Section 1 and Section 2 of this Amendment, are each and all subject to the
satisfaction, in form and substance satisfactory to the Agent, of each of the
following conditions precedent:
4.1 The Borrower, each Transferor and each Transferee shall
have duly executed and delivered this Amendment.
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4.2 Each of the conditions precedent set forth in Section 4.1
and Section 4.2 of the Loan Agreement shall have been satisfied or waived in
accordance with the terms of the Loan Agreement.
4.3 The representations and warranties set forth in Section 3
hereof shall be true, correct and complete on and as of the closing date of this
Amendment as though made on such date.
4.4 The Agent shall have received such approvals, opinions or
documents as any Lender through the Agent may reasonably request, the Borrower
and the Guarantors shall have taken all such other actions as any Lender through
the Agent may reasonably request, and all legal matters incident to the
foregoing shall be satisfactory to the Agent.
Section 5. Reference to and Effect Upon the Loan Agreement and
other Loan Documents.
5.1 Except as specifically amended in Section 1 and Section 2
above, the Loan Agreement and each of the other Loan Documents shall remain in
full force and effect and each is hereby ratified and confirmed.
5.2 The execution, delivery and effect of this Amendment and
Assignment shall be limited precisely as written and shall not be deemed to (i)
be a consent to any waiver of any term or condition or to any amendment or
modification of any term or condition of the Loan Agreement or any other Loan
Document, except, upon the effectiveness, if any, of this Amendment and
Assignment, as specifically amended in Section 1 and Section 2 above, or (ii)
prejudice any right, power or remedy which the Agent or any Lender now has or
may have in the future under or in connection with the Loan Agreement or any
other Loan Document. Upon the effectiveness of this Amendment, each reference in
the Loan Agreement to "this Agreement", "hereunder", "hereof", "herein" or any
other word or words of similar import shall mean and be a reference to the Loan
Agreement as amended hereby, and each reference in any other Loan Document to
the Loan Agreement or any word or words of similar import shall mean and be a
reference to the Loan Agreement as amended hereby.
Section 6. Miscellaneous
6.1 This Amendment and Assignment may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.
6.2 The Borrower shall pay on demand all reasonable fees,
costs and expenses incurred by Agent in connection with the preparation,
execution and delivery of this Amendment (including, without limitation, all
reasonable attorneys' fees).
6.3 GOVERNING LAW. THIS AMENDMENT AND ASSIGNMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Assignment to be duly executed on the date first above written.
G-III LEATHER FASHIONS, INC.
By: /s/ Wayne S. Miller
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Name: Wayne S. Miller
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Title: Chief Financial Officer
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FLEET BANK, N.A., as Lender and Transferor
By: /s/ Stephen M. Leavenworth
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Name: Stephen M. Leavenworth
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Title: Vice President
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THE CHASE MANHATTAN BANK,
as Lender and Transferor
By: /s/ John Mulvey
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Name: John Mulvey
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Title: Vice President
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THE CIT GROUP/COMMERCIAL
SERVICES, NC., as Lender and Transferor
By: /s/ Lisa Murakami
--------------------------------
Name: Lisa Murakami
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Title: Vice President
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ISRAEL DISCOUNT BANK OF NEW YORK
as Transferee
By: /s/ Matilde Reyes
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Name: Matilde Reyes
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Title: Vice President
------------------------------------
By: /s/ Howard Weinberg
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Name: Howard Weinberg
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Title: First Vice President
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HSBC Bank USA, as Transferee
By: /s/ Thomas DeGeorge
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Name: Thomas DeGeorge
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Title: First Vice President
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BANK LEUMI USA
as Transferee
By: /s/ John Koenigsberg
--------------------------------------
Name: John Koenigsberg
------------------------------------
Title: First Vice President
-----------------------------------
By: /s/ Phyllis Rosenfeld
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Name: Phyllis Rosenfeld
------------------------------------
Title: Vice President
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FLEET BANK, N.A., as Agent
By: /s/ Stephen M. Leavenworth
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Name: Stephen M. Leavenworth
------------------------------------
Title: Vice President
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SCHEDULE A
TO THE ASSIGNMENT AGREEMENT
TOTAL COMMITMENTS
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Commitments for Commitments for Commitments for Commitments for Commitments for % of
Bank closing through 5/1/01 through 6/16/01 through 9/16/01 through 11/01/01 through Commit-
4/30/01; and 6/15/01 9/15/01 10/31/01 11/23/01 ments
11/24/01 through
Commitment
Termination Date
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Fleet $11,026,654.41 $15,927,389.71 $20,828,125.00 $18,377,757.35 $13,477,022.06 24.50%
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Chase Manhattan 9,393,075.85 13,567,776.23 17,742,476.61 15,655,126.42 11,480,426.04 20.87%
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CIT Group 8,984,681.50 12,977,873.28 16,971,065.06 14,974,469.17 10,981,277.39 19.97%
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IDB 4,742,647.06 6,850,490.20 8,958,333.33 7,904,411.76 5,796,568.63 10.54%
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HSBC 6,882,352.94 9,941,176.47 13,000,000.00 11,470,588.24 8,411,764.71 15.29%
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Bank Leumi 3,970,588.24 5,735,294.12 7,500,000.00 6,617,647.06 4,852,941.18 8.82%
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TOTAL $45,000,000.00 $65,000,000.00 $85,000,000.00 $75,000,000.00 $55,000,000.00
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