AMENDMENT NO. 2 TO
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT, made as of the 1st day of December, 2003 (this "SECOND
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, 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 (as amended
through the date hereof, 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 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. AMENDMENTS TO ORIGINAL LOAN AGREEMENT.
SECTION 1.1 CAPITAL EXPENDITURES. Section 7.13 of the Original Loan
Agreement (Capital Expenditures) is amended by adding the following proviso to
the end of the first sentence thereof:
; provided, however, the Borrower may during the period from December
1, 2003 through May 31, 2005 make or become obligated to make
additional Capital Expenditures in an aggregate amount not to exceed
$5,000,000 solely in connection with the improvement of a new
warehouse facility in New Jersey.
SECTION 1.2 RENTAL OBLIGATIONS. Section 7.18 of the Original Loan Agreement
(Rental Obligations) is hereby amended by adding the following proviso at the
end thereof:
; provided, further, that the Borrower may enter into a Lease for a
new warehouse facility in New Jersey for a term of eleven years the
aggregate average annual rental payment in respect of which shall not
exceed $2,500,000.
SECTION 1.3 GENERAL.
(a) All references in the Original Loan Agreement or any other Loan
Document to the "Loan(s)" and the "Loan Documents" shall be deemed to refer
respectively, to the Loan(s) as amended hereby and the Loan Documents as defined
in the Original Loan Agreement together with, and as amended by, this Second
Amendment 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 1.4 FURTHER AMENDMENT TO LOAN DOCUMENTS. 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 Second Amendment.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the other Loan Parties hereby represents and
warrants to the Lenders and the Agent that:
SECTION 2.1 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 Second
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 2.2 POWER, AUTHORITY, CONSENTS.
The Borrower and each other Loan Party has the power to execute,
deliver and perform this Second Amendment. 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 thereunder. 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 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
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the Borrower or any other Loan Party, or the validity or enforcement of this
Second Amendment.
SECTION 2.3 NO VIOLATION OF LAW OR AGREEMENTS.
The execution and delivery by the Borrower and each other Loan Party of
this Second Amendment 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 2.4 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This Second Amendment has 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 3. 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, 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.
(b) Each Guarantor hereby consents in all respects to the execution by
the Borrower of this Second Amendment and acknowledges and confirms that (i) the
Guarantee Agreement guarantees, without limitation, the full payment and
performance of the Indebtedness, liabilities and obligations of the Borrower
under the Original Loan Agreement, as amended hereby, 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
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Indebtedness, liabilities and obligations of the Borrower to the Lenders and the
Agent under the Original Loan Agreement, as amended hereby.
(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 4. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
This Second Amendment shall become effective on the date of the
fulfillment (to the satisfaction of the Agent) of the following conditions
precedent:
(a) This Second Amendment shall have been executed and delivered
to the Agent by a duly authorized representative of the Borrower, the Agent and
the Majority Lenders.
(b) 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
Second Amendment, no Default or Event of Default shall exist, shall be true.
(c) The Borrower shall have paid to the Agent for the ratable
benefit of the Lenders executing this Second Amendment on or before 5:00 p.m.
(New York City time) on December 1, 2003, an amendment fee in the amount of
$50,000.
(d) All legal matters incident hereto shall be satisfactory to the
Agent and its counsel.
ARTICLE 5. MISCELLANEOUS.
SECTION 5.1 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
term "Loan Agreement", shall be deemed to refer to the Original Loan Agreement,
as amended hereby; (ii) the term "this Agreement" shall be deemed to refer to
this Second Amendment; and (iii) the terms "hereunder" and "hereto" shall be
deemed to refer to this Second Amendment.
SECTION 5.2 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.
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SECTION 5.3 COUNTERPARTS. This Second Amendment 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 Second Amendment to
be duly executed on the date first above written.
G-III LEATHER FASHIONS, INC.
BY: /s/ Wayne Miller
----------------
NAME: WAYNE MILLER
TITLE: CHIEF FINANCIAL OFFICER
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
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Agreed:
G-III HONG KONG LTD.
By: /s/ Wayne Miller
----------------
PRESIDENT
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
P.T. BALIHIDES
By: /s/ Keith Sutton-Jones
----------------------
PRESIDENT AND DIRECTOR OF P.T. BALIHIDES
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
FLEET NATIONAL BANK,
AS AGENT, COLLATERAL MONITORING AGENT,
ISSUING BANK AND AS A LENDER
BY: /s/ Joseph J. Nastri
--------------------
NAME: JOSEPH J. NASTRI
TITLE: SENIOR VICE PRESIDENT
JPMORGAN CHASE BANK
BY: /s/ Peter C. DeLuca
--------------------
NAME: PETER C. DELUCA
TITLE: VICE PRESIDENT
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
BY: /s/ Lisa Murakami
-----------------
NAME: LISA MURAKAMI
TITLE: VICE PRESIDENT
ISRAEL DISCOUNT BANK OF NEW YORK
BY: /s/ Matilde Reyes
-----------------
NAME: MATILDE REYES
TITLE: VICE PRESIDENT
BY: /s/ Howard Weinberg
-------------------
NAME: HOWARD WEINBERG
TITLE: SENIOR VICE PRESIDENT I
HSBC BANK USA
BY: /s/ Michael P. Behuniak, Jr.
----------------------------
NAME: MICHAEL P. BEHUNIAK, JR.
TITLE: VICE PRESIDENT
BANK LEUMI USA
BY: /s/ John Koenigsberg
--------------------
NAME: JOHN KOENIGSBERG
TITLE: FIRST VICE PRESIDENT
BY: /s/ Phyllis Rosenfeld
---------------------
NAME: PHYLLIS ROSENFELD
TITLE: VICE PRESIDENT