EXHIBIT 10.3(a)
AMENDMENT NO. 1 AND WAIVER TO
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 18th day of March, 2003, 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, 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 :
WHEREAS:
(A) The Borrower, the Lenders and the Agent are parties to a certain
Sixth Amended and Restated Loan Agreement dated as of April 29, 2002 (the
"ORIGINAL LOAN AGREEMENT"; the Original Loan Agreement, as amended hereby and as
it may from time to time be further amended, restated, supplemented or otherwise
modified, the "LOAN AGREEMENT");
(B) The Borrower has requested that the Lenders and the Agent waive
certain Events of Default under, and amend certain provisions of, the Original
Loan Agreement, and the Lenders and the Agent are willing do so, all on the
terms and conditions hereinafter set forth; and
(C) All capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Original Loan
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. CHANGE IN COMMITMENT.
SECTION 1.1 COMMITMENT. From and after the date hereof, for purposes of
the Loan Agreement, the Commitment of each Lender shall be the amount set forth
opposite each Lender's name on the signature pages hereto as the same may be
reduced pursuant to the terms of the Loan Agreement, and such amount shall
supersede and be deemed to amend the amount of each Lender's respective
Commitment as set forth opposite its name on the signature pages to the Original
Loan Agreement.
SECTION 1.2 ADJUSTMENT OF OUTSTANDING LOANS. If any Loans are
outstanding under the Original Loan Agreement on the date hereof, the Lenders
shall on the date hereof, at the direction of the Agent, make appropriate
adjustments among themselves in order to insure that the amount (and type) of
the Loans outstanding to the Borrower from each Lender under the Loan Agreement
(as of the date hereof) are proportionate to the aggregate amount of the
increased total Commitment. The Borrower agrees and consents to the terms of
this Section 1.2.
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ARTICLE 2. AMENDMENTS TO ORIGINAL LOAN AGREEMENT; SUBSTITUTED NOTES.
SECTION 2.1 The Original Loan Agreement is hereby amended as follows:
(a) The definition of "Borrowing Base Maximum" appearing in
Article 1 of the Original Loan Agreement is deleted in its entirety and the
following is substituted therefor:
"'Borrowing Base Maximum' - as of any date during any period
set forth below, the amount set forth opposite such period:
Period Borrowing Base Maximum
------ ----------------------
February 1, 2003 to and including $45,000,000
April 30, 2003
May 1, 2003 to and including $60,000,000
June 30, 2003
July 1, 2003 to and including $85,000,000
September 30, 2003
October 1, 2003 to and including $90,0000,000
November 30, 2003
December 1, 2003 to and including December $60,000,000
31, 2003
January 1, 2004 to and including the $45,000,000
Commitment Termination Date
and the respective periods and amounts for Fiscal Year 2005 and the Stub Period
shall be as preliminarily determined by the Lenders and the Borrower based on
the Projections and the business plan (in each case delivered pursuant to
Section 5.10(e)) for Fiscal Year 2005 and Fiscal Year 2006, respectively, and
the unaudited financial statements (delivered pursuant to Section 5.10(e)) for
Fiscal Year 2004 and Fiscal Year 2005, respectively, but in no event shall the
periods be of different durations or the amounts be less than the amounts for
the periods corresponding to the periods set forth above unless the Lenders
determine (in their reasonable discretion) that such periods and amounts warrant
adjustment based upon such Projections, business plan or unaudited financial
statements and such preliminary determination shall become effective after
receipt and satisfactory review by the Lenders of the Financial Statements for
Fiscal Year 2005 and Fiscal Year 2006, respectively."
(b) The definition of "Commitment" appearing in Article 1 of
the Original Loan Agreement is deleted in its entirety and the following is
substituted therefor:
"'Commitment' - Ninety Million ($90,000,000) Dollars in the
aggregate, allocated among each of the Lenders, respectively in the
amount set forth opposite such Lender's name on the signature pages to
the First Amendment under the
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caption "Commitment", as such amount is reduced in accordance with the
terms hereof."
(c) The definition of "Direct Debt Sublimit" appearing in
Article 1 of the Original Loan Agreement is deleted in its entirety and the
following is substituted therefor:
"'Direct Debt Sublimit' - for each period set forth below, the
amount set forth opposite such period:
"Period Direct Debt Sublimit
------ --------------------
February 1, 2003 to and including $40,000,000
May 31, 2003
June 1, 2003 to and including $55,000,000
June 30, 2003
July 1, 2003 to and including $72,000,000
November 30, 2003
December 1, 2003 to and including $50,000,000
December 31, 2003
January 1, 2004 to and including the $40,000,000
Commitment Termination Date
and the respective periods and amounts for Fiscal Year 2005 and the Stub Period
shall be as preliminarily determined by the Lenders and the Borrower based on
the Projections and the business plan (in each case delivered pursuant to
Section 5.10(e)) for Fiscal Year 2005 and Fiscal Year 2006, respectively, and
the unaudited financial statements (delivered pursuant to Section 5.10(e)) for
Fiscal Year 2004 and Fiscal Year 2005, respectively, but in no event shall the
periods be of different durations or the amounts be less than the amounts for
the periods corresponding to the periods set forth above unless the Lenders
determine (in their reasonable discretion) that such periods and amounts warrant
adjustment based upon such Projections, business plan or unaudited financial
statements and such preliminary determination shall become effective after
receipt and satisfactory review by the Lenders of the Financial Statements for
Fiscal Year 2005 and Fiscal Year 2006, respectively."
(d) The following new definition is inserted in the
appropriate alphabetical order in Article 1 of the Original Loan Agreement:
"'First Amendment' - shall mean Amendment No. 1 and Waiver to
Sixth Amended and Restated Loan Agreement dated as of March 18, 2003,
by and among the Borrower, the Lenders and the Agent."
(e) The definition of "Overadvance" appearing in Article 1 of
the Original Loan Agreement is amended by deleting the chart appearing therein
together with the text immediately beneath the chart and ending before the first
proviso and substituting therefor the following:
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"Period Overadvance
------ -----------
March 15, 2003 to and including $15,000,000
April 30, 2003
May 1, 2003 to and including $25,000,000
May 31, 2003
June 1, 2003 to and including $32,000,000
July 31, 2003
August 1, 2003 to and including $27,500,000
August 30, 2003
August 31, 2003 to and including $18,000,000
September 29, 2003
September 30, 2003 to and including $10,000,000
October 30, 2003
October 31, 2003 to and including the -$0-
Commitment Termination Date
and the respective periods and amounts for Fiscal Year 2005 and the Stub Period
shall be as preliminarily determined by the Lenders and the Borrower based on
the Projections and the business plan (in each case delivered pursuant to
Section 5.10(e)) for Fiscal Year 2005 and Fiscal Year 2006, respectively, and
the unaudited financial statements (delivered pursuant to Section 5.10(e)) for
Fiscal Year 2004 and Fiscal Year 2005, respectively, but in no event shall the
periods be of different durations or the amounts be less than the amounts for
the periods corresponding to the periods set forth above unless the Lenders
determine (in their reasonable discretion) that such periods and amounts warrant
adjustment based upon such Projections, business plan or unaudited financial
statements, which preliminary determination shall be made within 70 days of
receipt by the Lenders of such Projections, business plan and unaudited
financial statements and such preliminary determination shall become effective
after receipt and satisfactory review by the Lenders of the Financial Statements
for Fiscal Year 2004 and Fiscal Year 2005, respectively;"
(f) Section 2.4(a) is deleted in its entirety and there is
substituted therefor the following:
"(a) The Loans made by each Lender shall be evidenced by a
single promissory note of the Borrower in substantially the form of
Exhibit A annexed to the First Amendment (each, a "SUBSTITUTED NOTE"
and, collectively, the "SUBSTITUTED NOTES"). Each Substituted Note
shall be dated the date of the First Amendment, shall be payable to the
order of each Lender in a principal amount equal to such Lender's
Commitment as in effect on the date of the First Amendment and shall
otherwise be duly completed. All Loans made by each Lender hereunder
and all payments and prepayments made on account of the principal
thereof, and all conversions of such Loans shall be recorded by such
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Lender on the schedule attached to its Substituted Note (provided that
any failure by such Lender to make any such endorsement shall not
affect the obligations of the Borrower hereunder or under such
Substituted Note in respect of such Loans). The Substituted Notes shall
be payable as provided in Section 2.7."
(g) Section 6.9(a) of the Original Loan Agreement is deleted
in its entirety and the following is substituted therefor:
"(a) Have or maintain, with respect to the Parent on
a consolidated basis, EBITDA on a cumulative basis from the first day
of each fiscal year through the date set forth below at not less than,
or, in the case of a loss, not more than, the respective amounts set
forth below opposite each such last day of the fiscal quarter:
"Date EBITDA
---- ------
April 30, 2003 ($6,400,000)
July 31, 2003 ($5,200,000)
October 31, 2003 $11,400,000
January 31, 2004 $10,700,000
and the respective amounts for Fiscal Year 2005 and the Stub Period shall be
preliminarily determined by the Majority Lenders and the Borrower based on the
Projections and business plan (in each case delivered pursuant to Section
5.10(e)) for Fiscal Year 2005 and Fiscal Year 2006, respectively and the
unaudited financial statements (delivered pursuant to Section 5.10(e)) for
Fiscal Year 2004 and Fiscal Year 2005, respectively, but in no event shall the
periods be of different durations or the amounts be less than (if such amount is
negative) or greater than (if such amount is positive) the amounts for the
periods corresponding to the periods set forth above unless the Majority Lenders
determine (in their reasonable discretion) that such periods and amounts warrant
adjustment based on the financial condition of the Borrower as set forth in the
applicable Projections, business plan or unaudited financial statements, which
preliminary determination shall be made within 60 days of receipt by the Lenders
of such Projections, business plan and unaudited financial statements, and such
determination shall become effective after receipt and satisfactory review by
the Lenders of the Financial Statements for Fiscal Year 2004, and Fiscal Year
2005, respectively."
(h) Section 6.9(b) of the Original Loan Agreement is deleted
in its entirety and the following is substituted therefor:
"(b) Have or maintain, with respect to the Parent on
a consolidated basis, Tangible Net Worth as of the dates set forth
below at not less than the respective amounts set forth below opposite
each such date:
Minimum
"Date Tangible Net Worth
---- ------------------
April 30, 2003 $47,500,000
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Minimum
Date Tangible Net Worth
---- ------------------
July 31, 2003 $47,900,000
October 31, 2003 $57,600,000
January 31, 2004 $56,900,000
and the respective amounts for Fiscal Year 2005 and the Stub Period shall be
determined in the sole discretion of the Majority Lenders within 60 days of
receipt by the Lenders of the Projections and business plan (in each case
delivered pursuant to Section 5.10(e)) for Fiscal Year 2005 and Fiscal Year
2006, respectively and the unaudited financial statements (delivered pursuant to
Section 5.10(e)) for Fiscal Year 2004 and Fiscal Year 2005, respectively, and
such determination shall become effective after receipt and satisfactory review
by the Lenders of the Financial Statements for Fiscal Year 2004 and Fiscal Year
2005, respectively."
(i) Section 7.13 of the Original Loan Agreement (Capital
Expenditures) is amended by deleting the amount "$1,750,000" appearing therein
and substituting therefor the amount "$2,000,000".
SECTION 2.2 In order to evidence the Loans, as amended hereby, the Borrower
shall execute and deliver to each Lender, simultaneously with the execution and
delivery hereof, a promissory note payable to the order of such Lender in
substantially the form of Exhibit A annexed hereto (hereinafter referred to
individually as a "SUBSTITUTED NOTE" and collectively as the "SUBSTITUTED
NOTES"). Each Lender shall, upon the execution and delivery by the Borrower of
its applicable Substituted Note as herein provided, mark the Note delivered to
it in connection with the Original Loan Agreement "Replaced by Substituted Note"
and return it to the Borrower.
SECTION 2.3 (a) All references in the Original Loan Agreement or any other Loan
Document to the "Loan(s)", the "Note(s)", and the "Loan Documents" shall be
deemed to refer respectively, to the Loan(s) as amended hereby, the Substituted
Note(s), and the Loan Documents as defined in the Original Loan Agreement
together with, and as amended by, this First Amendment, the Substituted Notes
and all agreements, documents and instruments delivered pursuant thereto or in
connection therewith.
(b) All references in the Original Loan Agreement and the
other Loan Documents to the "Loan Agreement", and also in the case of the
Original Loan Agreement to "this Agreement", shall be deemed to refer to the
Original Loan Agreement, as amended hereby.
SECTION 2.4 The Original Loan Agreement and the other Loan Documents
shall each be deemed amended and supplemented hereby to the extent necessary, if
any, to give effect to the provisions of this Agreement.
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ARTICLE 3. WAIVER.
The Borrower has advised the Agent that:
(a) notwithstanding the requirement of subsection 6.9(a) of
the Original Loan Agreement, the Parent on a consolidated basis, had EBITDA on a
cumulative basis from the first day of its fiscal year through January 31, 2003
of less than $8,800,000; and
(b) notwithstanding the requirement of subsection 6.9(b) of
the Original Loan Agreement, as of January 31, 2003, the Parent on a
consolidated basis, had Tangible Net Worth of less than $53,500,000.
Such failures to comply with the foregoing requirements of subsections
6.9(a) and 6.9(b) of the Original Loan Agreement constitute Events of Default
under Section 8.2 of the Loan Agreement (collectively, the "SPECIFIED EVENTS OF
DEFAULT").
The Lenders hereby waive the Specified Events of Default;
provided, however, the waivers granted by the undersigned pursuant hereto with
respect to the Specified Events of Default (i) are limited to the matters
expressly stated above and, only for the period and/or dates, as the case may
be, expressly stated above, and (ii) shall not be deemed to be a waiver of any
future violations of any such provisions or a waiver of any violations of any
other provisions of the Loan Agreement.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the other Loan Parties hereby
represents and warrants to the Lenders and the Agent that:
SECTION 4.1 ARTICLE 3 OF ORIGINAL LOAN AGREEMENT; NO DEFAULTS.
(a) Each and every one of the representations and warranties
set forth in Article 3 of the Original Loan Agreement is true in all respects as
of the date hereof, except for changes which, either singly or in the aggregate,
are not materially adverse to the business or financial condition of the Parent
and its Subsidiaries, taken as a whole.
(b) As of the date hereof, after giving effect to this First
Amendment, there exists no Event of Default under the Loan Agreement, and no
event which, with the giving of notice or lapse of time or both, would
constitute such an Event of Default.
SECTION 4.2 POWER, AUTHORITY, CONSENTS.
The Borrower and each other Loan Party has the power to
execute, deliver and perform this First Amendment, and with respect to the
Borrower, the Substituted Note. The Borrower has the power to borrow under the
Original Loan Agreement as amended hereby and has taken all necessary corporate
action to authorize the borrowing hereunder. Other than due authorization by the
Board of Directors of the Borrower and each other Loan Party, each of which has
been duly obtained, no consent or approval of any Person (including, without
limitation, any stockholder of any corporate Loan Party or any partner in any
partnership Loan Party), no consent or approval of any landlord or mortgagee, no
waiver of any Lien or right of
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distraint or other similar right and no consent, license, approval,
authorization or declaration of any governmental authority, bureau or agency, is
or will be required in connection with the execution, delivery or performance by
the Borrower or any other Loan Party, or the validity or enforcement of this
First Amendment or the Substituted Note.
SECTION 4.3 NO VIOLATION OF LAW OR AGREEMENTS.
The execution and delivery by the Borrower and each other Loan
Party of this First Amendment (and with respect to the Borrower, the Substituted
Note) and the performance by each of them hereunder, will not violate any
provision of law or conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or the certificate of incorporation or by-laws of the Borrower or any
other corporate Loan Party or the partnership agreement or any other
organizational document of any Loan Party that is not a corporation, or create
(with or without the giving of notice or lapse of time, or both) a default under
or breach of any agreement, bond, note or indenture to which the Borrower or any
Loan Party is a party, or by which any of them is bound or any of their
respective properties or assets is affected (which default or breach would have
a material adverse effect on the business, financial conditions or operations of
the Borrower, the Parent and the Subsidiaries taken as a whole), or result in
the imposition of any Lien of any nature whatsoever upon any of the properties
or assets owned by or used in connection with the business of any of them except
for the Liens created and granted pursuant to the Security Documents, as
confirmed hereby.
SECTION 4.4 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This First Amendment and the Substituted Note have each been
duly executed and delivered by each Loan Party which is a party hereto and each
constitutes the valid and legally binding obligation of the Borrower or such
other Loan Party that is a party thereto, enforceable in accordance with its
terms; provided, however, that enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws, now
or hereafter in effect, relating to or affecting the enforcement of creditors'
rights generally and the remedy of specific performance and other equitable
remedies are subject to judicial discretion.
ARTICLE 5. ACKNOWLEDGMENTS, CONFIRMATIONS, CONSENTS.
(a) The Borrower hereby acknowledges and confirms that (i) the
Liens and security interests granted pursuant to the Security Documents to which
it is a party secure, without limitation, the due payment and performance of all
of the Indebtedness, liabilities and obligations of the Borrower to the Lenders
and the Agent under the Original Loan Agreement, as amended hereby and the
Substituted Note, whether or not so stated in each of the Security Documents,
and (ii) the term "Obligations" as used in the Security Documents (or any other
term used therein to describe or refer to the Indebtedness, liabilities and
obligations of the Borrower to the Lenders and the Agent) includes, without
limitation, the Indebtedness, liabilities and obligations of the Borrower to the
Lenders and the Agent under the Original Loan Agreement, as amended hereby and
the Substituted Note.
(b) Each Guarantor hereby consents in all respects to the
execution by the Borrower of this First Amendment and acknowledges and confirms
that (i) the Guarantee Agreement guarantees, without limitation, the full
payment and performance of the Indebtedness,
8
liabilities and obligations of the Borrower under the Original Loan Agreement,
as amended hereby and the Substituted Note, and (ii) the term "Obligations" as
used in the Guarantee Agreement (or any other term used therein to describe or
refer to the Indebtedness, liabilities and obligations of the Borrower or the
Guarantor(s) to the Lenders and the Agent) includes, without limitation, all of
the Indebtedness, liabilities and obligations of the Borrower to the Lenders and
the Agent under the Original Loan Agreement, as amended hereby and the
Substituted Note.
(c) Each Corporate Guarantor hereby acknowledges and confirms
that (i) the Liens and security interests granted pursuant to the Security
Documents to which it is a party, secure, without limitation, all of the
Indebtedness, liabilities and obligations of such Corporate Guarantor to the
Lenders and the Agent under the Guarantee Agreement, as confirmed hereby, and
(ii) the term "Obligations" as used in the Security Documents (or any other term
used therein to describe or refer to the Indebtedness, liabilities and
obligations of such Corporate Guarantor to the Lenders and the Agent) includes,
without limitation, the Indebtedness, liabilities and obligations of such
Corporate Guarantor under the Guarantee Agreement, as confirmed hereby.
ARTICLE 6. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AGREEMENT.
This First Amendment shall become effective on the date of the
fulfillment (to the satisfaction of the Agent) of the following conditions
precedent:
(a) This First Amendment shall have been executed and
delivered to the Agent by a duly authorized representative of the Borrower, the
Agent and each Lender.
(b) The Borrower shall have executed and delivered to each
Lender its Substituted Note.
(c) The Agent shall have received a Compliance Certificate
from the Borrower dated the date hereof and the matters certified therein,
including, without limitation, that after giving effect to the terms and
conditions of this First Amendment, no Default or Event of Default shall exist,
shall be true.
(d) The Agent shall have received copies of the following:
(i) Copies of all corporate action taken by the
Borrower to authorize the execution, delivery and performance of this First
Amendment, the Substituted Note and the transactions contemplated hereby,
certified by its Secretary;
(ii) A certificate from the Secretary of the Borrower
to the effect that since May 31, 1999 there have been no amendments,
modifications or supplements to the Certificate of Incorporation or By-laws of
the Borrower; and
(iii) An incumbency certificate (with specimen
signatures) with respect to the Borrower.
(e) The Borrower shall have paid to the Agent for the ratable
benefit of the Lenders, a waiver fee in the amount of $50,000.
9
(f) All legal matters incident hereto shall be satisfactory to
the Agent and its counsel.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 ARTICLE 10 OF THE ORIGINAL LOAN AGREEMENT. The
miscellaneous provisions under Article 10 of the Original Loan Agreement,
together with the definition of all terms used therein, and all other sections
of the Original Loan Agreement to which Article 10 refers are hereby
incorporated by reference as if the provisions thereof were set forth in full
herein, except that (i) the terms "Loan Agreement", "Note(s)" and "Loan", shall
be deemed to refer, respectively, to the Original Loan Agreement, as amended
hereby, the Substituted Note(s) and the Loans, as amended hereby; (ii) the term
"this Agreement" shall be deemed to refer to this Agreement; and (iii) the terms
"hereunder" and "hereto" shall be deemed to refer to this Agreement.
SECTION 7.2 CONTINUED EFFECTIVENESS. Except as amended hereby, the
Original Loan Agreement and the other Loan Documents are hereby ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
SECTION 7.3 COUNTERPARTS. This Agreement may be executed by the parties
hereto in one or more counterparts, each of which shall be an original and all
of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
G-III LEATHER FASHIONS, INC.
BY: /S/ WAYNE MILLER
------------------------------------
NAME: WAYNE S. MILLER
TITLE: CHIEF FINANCIAL OFFICER
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
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Agreed:
G-III HONG KONG LTD.
By: /s/ Wayne Miller
- ------------------------------------
Director
G-III APPAREL GROUP, LTD.
By: /s/ Wayne Miller
- ------------------------------------
Senior Vice President
SIENA LEATHER LTD.
By: /s/ Wayne Miller
- ------------------------------------
Vice President
GLOBAL INTERNATIONAL TRADING
COMPANY
By: /s/ Wayne Miller
- ------------------------------------
Vice President
INDAWA HOLDING CORP.
By: /s/ Wayne Miller
- ------------------------------------
Vice President
GLOBAL APPAREL SOURCING, LTD.
By: /s/ Wayne Miller
- ------------------------------------
Vice President
G-III RETAIL OUTLETS INC.
By: /s/ Wayne Miller
- ------------------------------------
Vice President
11
P.T. BALIHIDES
By: /s/ K. Sutton Jones
- ------------------------------------
Title
WEE BEEZ INTERNATIONAL LIMITED
By: /s/ Wayne Miller
- ------------------------------------
Director
KOSTROMA LTD.
By: /s/ Wayne Miller
- ------------------------------------
Director
G-III LICENSE COMPANY, LLC
BY G-III APPAREL GROUP, LTD. AS MANAGER
By: /s/ Wayne Miller
- ------------------------------------
Senior Vice President
G-III BRANDS, LTD.
By: /s/ Philip H. Litwinoff
- ------------------------------------
Chief Financial Officer
12
COMMITMENT FLEET NATIONAL BANK,
- ---------- AS AGENT, COLLATERAL MONITORING AGENT,
$22,053,312.00 ISSUING BANK AND AS A LENDER
BY: /S/ JOSEPH J. NASTRI
--------------------------------------
NAME: JOSEPH J. NASTRI
TITLE: SENIOR VICE PRESIDENT
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
13
COMMITMENT JPMORGAN CHASE BANK
- ----------
$18,786,150.00
BY: /S/ LOUIS J. MASTRIANNI
----------------------------------
NAME: LOUIS J. MASTRIANNI
TITLE: VICE PRESIDENT
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
14
COMMITMENT THE CIT GROUP/COMMERCIAL
- ---------- SERVICES, INC.
$17,969,384.00
BY: /S/ KEVIN J. GILLESPIE
-------------------------------
NAME: KEVIN J. GILLESPIE
TITLE: VICE PRESIDENT
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
15
COMMITMENT ISRAEL DISCOUNT BANK OF NEW YORK
- ----------
$9,485,298.00
BY: /S/ MATILDE REYES
--------------------------------
NAME: MATILDE REYES
TITLE: VICE PRESIDENT
BY: /S/ HOWARD WEINBERG
--------------------------------
NAME: HOWARD WEINBERG
TITLE: SENIOR VICE PRESIDENT I
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
16
3
COMMITMENT HSBC BANK USA
$13,764,708.00
BY: /S/ MICHAEL P. BEHUNIAK, JR.
--------------------------------
NAME: MICHAEL P. BEHUNIAK, JR.
TITLE: VICE PRESIDENT
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
17
COMMITMENT BANK LEUMI USA
- ----------
$7,941,177.00
BY: /S/ JOHN KOENIGSBERG
--------------------------------
NAME: JOHN KOENIGSBERG
TITLE: FIRST VICE PRESIDENT
BY: /S/ PHYLLIS ROSENFELD
--------------------------------
NAME: PHYLLIS ROSENFELD
TITLE: VICE PRESIDENT
G-III Leather Fashions, Inc.
Signature Page to Amendment No. 1 and Waiver
to Sixth Amended and Restated Loan Agreement dated as of March 18, 2003
18
EXHIBIT A TO AMENDMENT NO. 1 AND WAIVER TO
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
BY AND AMONG
G-III LEATHER FASHIONS, INC.
THE LENDERS NAMED THEREIN
AND
FLEET NATIONAL BANK,
AS AGENT, COLLATERAL MONITORING AGENT AND ISSUING BANK
FORM OF SUBSTITUTED NOTE
$_____________ New York, New York
March 18, 2003
FOR VALUE RECEIVED, the undersigned G-III LEATHER FASHIONS, INC., a New
York corporation (the "Borrower"), hereby promises to pay to the order of
__________________ (the "Lender") on May 31, 2005 or on such earlier date as is
provided for in the Sixth Amended and Restated Loan Agreement dated as of April
29, 2002 (as such Loan Agreement may be amended, modified or supplemented, the
"Loan Agreement") among the Borrower, the lenders signatory thereto and Fleet
National Bank, as Collateral Monitoring Agent, Issuing Bank and Agent (in its
capacity as Collateral Monitoring Agent, together with its successors and
assigns, the "Collateral Monitoring Agent"), the lesser of (i) the principal sum
of __________ ($________) or (ii) the outstanding portion of the aggregate
unpaid principal amount of the Loans (as defined in the Loan Agreement) made by
the Lender to the Borrower pursuant to the Loan Agreement, and to pay interest
on the unpaid principal amount of each Loan from the date thereof at the rates
per annum and for the periods set forth in or established by the Loan Agreement
and calculated as provided therein.
All indebtedness outstanding under this Note shall bear interest
(computed in the same manner as interest on this Note prior to maturity) after
maturity, whether at stated maturity, by acceleration or otherwise, at the
Post-Default Rate (as defined in the Loan Agreement), and all such interest
shall be payable on demand.
Anything herein to the contrary notwithstanding, the obligation of the
Borrower to make payments of interest shall be subject to the limitation that
payments of interest shall not be required to be made to the Lender to the
extent that the Lender's receipt thereof would not be permissible under the law
or laws applicable to the Lender limiting rates of interest which may be charged
or collected by the Lender. Any such payments of interest which are not made as
a result of the limitation referred to in the preceding sentence shall be made
by the Borrower to the Lender on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws applicable to the
Lender limiting rates of interest which may be charged or collected by the
Lender.
Payment of both principal and interest on this Note are to be made at
the office of the Collateral Monitoring Agent at 1185 Avenue of the Americas,
New York, New York 10036 or such other place as the holder hereof shall
designate to the Borrower in writing, in lawful money of the United States of
America in immediately available funds.
The Lender is hereby authorized by the Borrower to record on the
schedule to this Note (or on a supplemental schedule thereto) the amount of each
Loan made by the Lender to the Borrower and the amount of each payment or
prepayment of principal of such Loans received by the Lender, it being
understood, however, that failure to make any such notation shall not affect the
rights of the Lender or the obligations of the Borrower hereunder in respect of
this Note. The Lender may, at its option, record such matters in its internal
records rather than on such schedule.
The Borrower and any Guarantor hereby grant to the Lender a lien,
security interest and right of setoff as security for all liabilities and
obligations to the Lender whether, now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Lender or any entity under
the control of the Lender or in transit to any of them. At any time, without
demand or notice, the Lender may set off the shares or any part thereof and
apply the same to any liability or obligation of Borrower and any Guarantor even
though unmatured and regardless of the adequacy of any other collateral securing
the Loan. ANY AND ALL RIGHTS TO REQUIRE THE LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
This Note is one of the Substituted Notes referred to in the First
Amendment, is secured in the manner provided therein, may be prepaid upon and
subject to terms and conditions thereof and is entitled to the benefits thereof.
This Note shall be deemed to be in substitution for and replacement of,
and not a repayment of the Note dated as of April 29, 2002 made by the Borrower
payable to the Lender (the "Prior Note") and all interest accrued and unpaid
under such Prior Note shall be deemed evidenced by this Note and payable
hereunder from and after the date of accrual thereof. The execution and delivery
of this Note shall not be construed (i) to have constituted repayment of any
amount of principal or interest on the Prior Note, or (ii) to release, cancel,
terminate or otherwise impair all or any part of any lien or security interest
granted to the Lenders party to the Loan Agreement or their agents as collateral
security for the Prior Note.
Upon the occurrence of any Event of Default, as defined in the Loan
Agreement, the principal amount of and accrued interest on this Note may be
declared due and payable in the manner and with the effect provided in the Loan
Agreement.
The Borrower shall pay costs and expenses of collection, including,
without limitation, attorneys' fees and disbursements in the event that any
action, suit or proceeding is brought by the holder hereof to collect this Note.
All capitalized terms used herein that are defined in the Loan
Agreement and that are not otherwise defined herein shall have the respective
meanings ascribed thereto therein, unless the context otherwise requires.
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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS RULES
PERTAINING TO CONFLICTS OF LAWS. THE BORROWER AND THE LENDER MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR THE LENDER TO ACCEPT THIS NOTE AND MAKE THE LOAN.
G-III LEATHER FASHIONS, INC.
BY:
--------------------------------
NAME: WAYNE S. MILLER
TITLE: SENIOR VICE PRESIDENT
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