EXHIBIT 10.1
SECOND AMENDMENT dated as of September 25, 2003 (the "Amendment") to LOAN
AND SECURITY AGREEMENT dated as of May 2, 2001 (as amended, modified,
supplemented or restated from time to time, the "Loan Agreement") between THE
CIT GROUP/BUSINESS CREDIT, INC. (the "Lender") and G+G Retail, Inc. (the
"Borrower"). Terms which are capitalized in this Amendment and not otherwise
defined shall have the meanings ascribed to such terms in the Loan Agreement.
WHEREAS, Borrower has requested that Lender consent to the modification of
certain terms and provisions contained in the Loan Agreement; and
WHEREAS, Lender has agreed to the foregoing request, on the terms and
conditions contained in this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section One. Amendments. Upon the satisfaction of the conditions set forth
in Section Two hereof, the Loan Agreement shall be and is hereby amended as
follows:
(a) Section 1. Definitions. Section 1 is amended by (i) adding thereto
the defined term "Minimum Availability", and the following definition thereof,
(ii) adding thereto the defined term "2005 Covenants", and the following
definition thereof, and (iii) adding thereto the defined term "2005 Plan", and
the following definition thereof:
"'Minimum Availability' shall mean the amount, as determined by
Lender, calculated at any time, equal to the difference between (a)
the amount of the Loans available to Borrowers as of such time based
on the applicable lending formulas multiplied by the Cost of Eligible
Inventory and the amount of Eligible Accounts, respectively, as
determined by Lender, and subject to the sublimits and Availability
Reserves from time to time established by Lender hereunder and (b)
the sum of (i) the amount of all then outstanding and unpaid
Obligations, plus (ii) (A) the aggregate amount of all trade payables
of Borrowers which are more than forty-five (45) days past due as of
such time minus (B) the lesser of (x) the amount of all trade
payables which are more than forty-five (45) days past due which
Borrowers are in good faith contesting, to the extent each such
payable is so contested and (y) $500,000.
'2005 Covenants' shall mean those modifications, if any, as to which
the Lender and the Borrowers may mutually agree, based on the terms
of the 2005 Plan, with respect to the provisions contained in
Sections 9.10(e)(i)(C) and (D), 9.11(a)(3) and (4) and 9.14.
'2005 Plan' shall mean the forecasted budget and financial
projections of each Borrower's performance, results and operations
for the Fiscal Year ending January 31, 2005, prepared on a month by
month basis by or under the direction of G+G's chief financial
officer, based on assumptions that were reasonable at the time made."
(b) Section 7.3. Inventory Covenants. Section 7.3 is amended by deleting
the word "twice" as it appears in each of clauses (d) and (e) thereof, and, in
each case, by substituting the words "four times" in lieu thereof.
(c) Section 9.10. Loans, Investments, Guarantees, Etc. Section 9.10 is
amended by deleting clause (e) thereof in its entirety, and by substituting the
following in lieu thereof:
"(e) upon the implementation of the 2005 Covenants, G+G shall be
permitted to (i) make loans and advances to Parent, the proceeds of
which are used concurrently upon its receipt thereof by Parent to
fund the cost of redeeming or repurchasing Capital Stock of Parent
(including without limitation the Senior Note Warrants) and (ii)
purchase or otherwise acquire Capital Stock of Parent (including
without limitation the Senior Note Warrants), provided that, in each
case, (A) no Event of Default has occurred and is continuing on the
date (the "transaction date") on which G+G proposes to make such
loan, advance, purchase or acquisition (each a "transaction"), (B)
Lender shall have received, at least ten (10) days prior to the
transaction date, written notice from Borrowers of such proposed
transaction, (C) Borrowers' Excess Availability on the transaction
date, after giving effect to the proposed transaction, is at least
$5,000,000 and (D) Borrowers' Net Worth on the transaction date,
after giving effect to the proposed transaction, is not less than
$40,000,000, provided further that, solely for the purpose of
determining Borrowers' compliance with this clause (D), the
calculation of Net Worth shall exclude any amounts due to G+G from
Parent as a result of loans and advances made by G+G to Parent
pursuant to clause (i) of this Section 9.10(e);"
(d) Section 9.11. Dividends and Redemptions. Section 9.11 is amended by
deleting clause (a) in its entirety and by substituting the following in lieu
thereof:
"(a) upon the implementation of the 2005 Covenants, G+G may declare
and pay cash dividends upon its Capital Stock, provided that (1) no
Event of Default has occurred and is continuing on the date (the
"dividend payment date") on which G+G proposes to pay such dividend,
(2) Lender shall have received, at least ten (10) days prior to the
dividend payment date, written notice from Borrowers of such proposed
dividend, (3) Borrowers' Excess Availability on the dividend payment
date, after giving effect to
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such Dividend, is at least $5,000,000 and (4) Borrowers' Net Worth on
the dividend payment date, after giving effect to such dividend, is
not less than $40,000,000,"
(e) Section 9.14. Net Worth. Section 9.14 is deleted in its entirety and
a new Section 9.14, captioned "Minimum Availability", is substituted in lieu
thereof, as follows:
"9.14 Minimum Availability. Minimum Availability at the end of each
day shall not be less than $3,750,000 until February 1, 2004. On
February 1, 2004, and at the end of each day thereafter, until such
time, if any, as the Lender shall have received and reviewed to its
satisfaction the 2005 Plan and the 2005 Covenants shall have been
implemented, Minimum Availability at the end of each day shall not be
less than $7,500,000."
(f) Section 10.1. Events of Default. Section 10.1 is amended by deleting
clause (a)(ii)(C) thereof in its entirety, and by substituting the following in
lieu thereof:
"(C) the failure to observe or perform any of the covenants or
provisions contained in Section 9.2(ii), 9.6(a), 9.7, 9.8, 9.9, 9.10,
9.11, 9.12, 9.13, 9.14, 9.15, 9.16 or 9.18 of this Agreement or any
covenants or agreements covering substantially the same matter as
such sections in any of the other Financing Agreements;"
Section Two. Conditions Precedent. This Amendment shall become effective
on the date when all of the following conditions, the satisfaction of each of
which is a condition precedent to the effectiveness of this Amendment, shall
have occurred or shall have been waived in writing by Lender.
(a) Lender shall have received for its own account payment in cash of a
non-refundable fee in the amount of $30,000. The Lender acknowledges and agrees
that the Borrowers shall not be obligated to pay any additional amendment fee or
similar charge on account of or in connection with the execution and delivery of
an amendment to the Loan Agreement, a primary purpose of which is to implement
the 2005 Covenants.
(b) Lender shall have received and reviewed to its reasonable
satisfaction fully executed counterparts or originals of each of this Amendment
and a Certificate of the Secretary or Assistant Secretary of Borrower (A)
relating to the adoption of resolutions by Borrower's Board of Directors and the
Class B Common Stockholders of the Parent (the "Class B Stockholders") approving
this Amendment, (B) certifying that no amendments have been made to Borrower's
Certificate of Incorporation as amended, and Borrower's by-laws, as amended,
since May 2, 2001, and (C) further certifying the names and incumbency of
officers of Borrower authorized to sign this Amendment and the names and
validity of signatures of such officers.
(c) All representations and warranties set forth in the Loan Agreement
(except for such inducing representations and warranties that were only required
to be true and correct as of a prior date) shall be true and correct in all
material respects on and as of the effective date hereof, and no Event of
Default shall have occurred and be continuing.
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(d) No event or development shall have occurred since the date of the
financial statements of Borrower for the year-to-date period ended in, and for
the month of, July, 2003, which event or development has had or is reasonably
likely to have a Material Adverse Effect.
(e) Lender shall have received a certificate from Borrower, executed by
its president and chief operating officer as to the truth and accuracy of
paragraphs (c), (d) and (g) of this Section Two.
(f) All corporate and legal proceedings and all documents and instruments
executed or delivered in connection with this Amendment shall be satisfactory in
form and substance to Lender and its counsel, and Lender and its counsel shall
have received all information and copies of all documents which Lender and its
counsel may have reasonably requested in connection herewith and the matters
contemplated hereunder, such documents, when requested by them, to be certified
by appropriate corporate authorities.
(g) There shall be no action, suit or proceeding pending or to Borrower's
knowledge overtly threatened against Borrower before any court (including any
bankruptcy court), arbitrator or governmental or administrative body or agency
which challenges or relates to the consummation of this Amendment or the other
transactions contemplated herein.
(h) Lender shall have received such further agreements, consents,
instruments and documents as may be necessary or proper in the reasonable
opinion of Lender and its counsel to carry out the provisions and purposes
of this Amendment.
Section Three. Representations and Warranties. Borrower hereby represents
and warrants (which representations and warranties shall survive the execution
and delivery hereof) to Lender that:
(a) Borrower has the corporate or other power, authority and legal right
to execute, deliver and perform this Amendment and the transactions contemplated
hereby, and has taken all actions necessary to authorize the execution, delivery
and performance of this Amendment and the transactions contemplated hereby;
(b) No consent of any Person (including, without limitation, stockholders
or creditors of Borrower, as the case may be) other than Lender and the Class B
Stockholders (whose consent has been given), and no consent, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority, is required in connection with the
execution, delivery and performance by Borrower, or the validity or
enforceability against Borrower, of this Amendment and the transactions
contemplated hereby;
(c) This Amendment has been duly executed and delivered on behalf of
Borrower by its duly authorized officer, and constitutes the legal, valid and
binding obligation of Borrower, enforceable in accordance with its terms, except
to the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the rights of
creditors generally or equitable remedies (whether arising in a proceeding at
law or in equity);
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(d) Borrower is not in material default under any indenture, mortgage,
deed of trust, agreement or other instrument to which it is a party or by which
it may be bound. Neither the execution and delivery of each of this Amendment,
nor the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof will (i) violate any law or regulation, or (ii)
result in or cause a violation by Borrower of any order or decree of any court
or government instrumentality, or (iii) conflict with, or result in the breach
of, or constitute a default under, any indenture, mortgage, deed of trust,
material agreement or other material instrument to which Borrower is a party or
by which it may be bound, or (iv) result in the creation or imposition of any
lien, charge, or encumbrance upon any of the property of Borrower, except in
favor of Lender, to secure the Liabilities, or (v) violate any provision of the
Certificate of Incorporation, By-Laws or any capital stock or similar equity
instrument of Borrower;
(e) After giving effect to this Amendment, no Event of Default has
occurred and is continuing; and
(f) Since the date of Borrower's financial statements for the
year-to-date period ended in, and for the month of, July, 2003, no change or
event has occurred which has had or is reasonably likely to have a Material
Adverse Effect.
Section Four. General Provisions.
(a) Except as herein expressly amended, the Loan Agreement and all other
amendments, agreements, documents, instruments and certificates executed in
connection therewith, are ratified and confirmed in all respects and shall
remain in full force and effect in accordance with their respective terms.
(b) All references in the Other Agreements to the Loan Agreement shall
mean the Loan Agreement as amended hereby and as hereafter amended, supplemented
or modified from time to time. From and after the date hereof, all references in
the Loan Agreement to "this Agreement," "hereof," "herein," or similar terms,
shall mean and refer to the Loan Agreement as amended by this Amendment.
(c) This Amendment may be executed by the parties hereto individually or
in combination, in one or more counterparts, each of which shall be an original
and all which shall constitute one and the same agreement.
(d) This Amendment shall be governed and controlled by the internal laws
of the State of New York.
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IN WITNESS WHEREOF, Lender and Borrower have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Deborah Rogut
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Name: Deborah Rogut
Title: Vice President
G+ G RETAIL, INC.
By: /s/ Michael Kaplan
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Name: Michael Kaplan
Title: Chief Financial Officer
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