EXHIBIT 99.6
SECOND AMENDMENT
TO
FINANCING AGREEMENT
Second Amendment, dated as of August 10, 1999, to the Financing
Agreement, dated as of February 26, 1999, as amended by the First Amendment,
dated as of March 25, 1999 (the "Financing Agreement"), by and among Aris
Industries, Inc., a New York corporation (the "Company"), Europe Craft Imports,
Inc., a New Jersey corporation ("ECI"), ECI Sportswear, Inc., a New York
corporation ("Sportswear"), Stetson Clothing Company, Inc., a Delaware
corporation ("Stetson" and together with ECI and Sportswear, each a "Borrower"
and collectively, the "Borrowers"), the financial institutions from time to time
party thereto (each a "Lender" and collectively, the "Lenders"), The Chase
Manhattan Bank, as administrative agent, book manager and arranger for the
Lenders (in such capacity, the "Administrative Agent") and The CIT
Group/Commercial Services, Inc., as agent for the Lenders (in such capacity, the
"Collateral Agent" or "Agent").
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger
dated as of July 19, 1999, as amended by Amendment No. 1 dated as of July ___,
1999, in the form attached hereto as Annex I hereto (the "Merger Agreement"), by
and among the Company, ECI, XOXO Clothing Company, Incorporated, a Delaware
corporation formerly known as XOXO Acquisition Corp. ("XOXO"), Lola, Inc., a
California corporation ("Lola"), and Xxxxx Xxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxx
Xxxxxx, Xxxx, Inc. shall be merged with and into ECI, with ECI as the surviving
corporation in such merger (the "Lola Acquisition");
WHEREAS, immediately following the Lola Acquisition, ECI will
contribute (the "Contribution") all of the assets and liabilities of Lola
assumed by ECI in the Lola Acquisition to XOXO Clothing Company, Incorporated, a
Delaware corporation and a direct wholly-owned subsidiary of ECI ("XOXO");
WHEREAS, the Borrowers, XOXO, B P Clothing Company, Inc., a New York
corporation and a newly formed direct wholly-owned subsidiary of ECI ("B P", and
together with XOXO, each an "Additional Borrower" and collectively, the
"Additional Borrowers"), the Lenders, the Administrative Agent and the Agent
have executed and delivered the Joinder Agreement and Acknowledgment dated as of
the date hereof (the "Joinder Agreement") pursuant to which, among other things,
each of the Additional Borrowers has agreed to be bound as a Borrower by all the
provisions of the Financing Agreement; and
WHEREAS, in connection with the Lola Acquisition and the
Contribution (collectively, the "Transactions"), the Borrowers, the Additional
Borrowers, the Lenders, the Administrative Agent and the Agent wish to amend the
Financing Agreement to among other
things (i) extend a term loan to ECI in the aggregate principal amount of
$10,000,000, the proceeds of which will be used to pay a portion of the purchase
price in connection with the Lola Acquisition pursuant to the terms of the
Merger Agreement, (ii) increase the Total Revolving Credit Commitment of the
Lenders from $65,000,000 to $80,000,000, and (iii) permit the Transactions.
Accordingly, the Company, the Borrowers, the Additional Borrowers,
the Administrative Agent, the Agent and the Lenders hereby agree as follows:
1. Definitions. All capitalized terms used herein and not
otherwise defined herein are used herein as defined in the Financing
Agreement.
2. The preamble of the Financing Agreement is hereby amended in its
entirety to read as follows:
"FINANCING AGREEMENT, dated as of February 26, 1999, by and among
Aris Industries, Inc., a New York corporation (the 'Company'), Europe Craft
Imports, Inc., a New Jersey corporation ('ECI'), ECI Sportswear, Inc., a New
York corporation ('Sportswear'), Stetson Clothing Company, Inc., a Delaware
corporation ('Stetson'), XOXO Clothing Company, Incorporated, a Delaware
corporation ('XOXO'), B P Clothing Company, Inc., a New York corporation ('B P'
and, together with ECI, Sportswear, Stetson and XOXO, each a 'Borrower' and
collectively, the 'Borrowers'), the financial institutions from time to time
party hereto (each a 'Lender' and collectively, the 'Lenders'), The Chase
Manhattan Bank, as administrative agent, book manager and arranger for the
Lenders (in such capacity, the 'Administrative Agent') and The CIT
Group/Commercial Services, Inc., as collateral agent for the Lenders (in such
capacity, the 'Collateral Agent' or 'Agent')."
3. Recitals. The first sentence of the Recitals of the Financing
Agreement is hereby amended in its entirety to read as follows:
"The Company and the Borrowers have asked the Lenders to extend
credit to the Borrowers consisting of (i) a term loan to ECI in the aggregate
principal amount of $10,000,000, and (ii) a revolving credit facility to the
Borrowers in an aggregate principal amount not in excess of $80,000,000 at any
time outstanding, a portion of which may be utilized for letters of credit. The
proceeds of the term loan shall be used to pay a portion of the consideration
paid in connection with the merger of Lola, Inc. with and into ECI."
4. Existing Definitions. (a) The definition of the term
"Availability" in Section 1.01 of the Financing Agreement is hereby amended
in its entirety to read as follows:
"'Availability' shall mean, at any time, the difference between (i)
the lesser of (A) the Borrowing Base Before Overadvance Amount and (B) the Total
Revolving Credit Commitment and (ii) the sum of (A) the aggregate outstanding
principal amount of all Revolving Credit Loans and (B) all Letter of Credit
Obligations."
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(b) Subsection (iv) of the definition of "Change of Control"
in Section 1.01 of the Financing Agreement is hereby amended in its entirety to
read as follows:
"(iv) ECI shall cease to directly own and control, of record
and beneficially, 100% of the outstanding Capital Stock of B P, Sportswear,
Stetson and XOXO free and clear of all Liens, except the Lien in favor of the
Agent for the benefit of the Lenders,"
(c) The definition of the term "Commitment" in Section 1.01 of
the Financing Agreement is hereby amended in its entirety to read as follows:
"'Commitment' means, with respect to each Lender,
such Lender's Revolving Credit Commitment and Term Loan Commitment."
(d) Subsection (i)(E)(z) of the definition of "Consolidated
EBITDA" in Section 1.01 of the Financing Agreement is hereby amended in its
entirety to read as follows:
"(z) prior to December 31, 1999, start-up costs and expenses
incurred in connection with the businesses of Stetson, B P and any other
Subsidiary of the Borrowers that is created and for which the Borrowers have
complied with the terms of Section 7.01(b) of this Agreement, in an aggregate
amount not in excess of $6,000,000,"
(e) The definition of the term "Eligible Inventory" in Section
1.01 of the Financing Agreement is hereby amended by (i) deleting the following
clause in the first sentence thereof "with respect to any Borrower, all finished
goods of such Borrower which meets all of the following specifications:" and
substituting in lieu thereof "with respect to any Borrower, all finished goods
and raw materials Inventory of such Borrower which meets all of the following
specifications:", (ii) deleting the reference in subsection (vii) to "raw
materials,", (iii) deleting the reference to "May 26, 1999" in clause (viii)
thereof, and substituting in lieu thereof "October 15, 1999", (iv) redesignating
clause (ix) thereof, and the internal reference in such clause (ix) to clause
(ix), to clause "(x)", and (v) adding the following new clause (ix) "(ix) in the
case of raw materials, such raw materials have been acquired by the Borrower
during the previous twelve months;" and
(f) The definition of the term "Factoring Agreements" in
Section 1.01 of the Financing Agreement is hereby amended in its entirety to
read as follows:
"'Factoring Agreements' means (i) (A) the Factoring Agreement dated
the date hereof between the Factor and ECI, (B) the Factoring Agreement dated
the date hereof between the Factor and Sportswear, (C) any Factoring Agreement
entered into between the Factor and Stetson, (D) any Factoring Agreement entered
into between the
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Factor and B P, and (E) the Factoring Agreement dated as of the Second Amendment
Effective Date between the Factor and XOXO or (ii) such other factoring
agreements as are entered into by the Borrowers pursuant to the terms of Section
7.02(o) of this Agreement."
(g) The definition of the term "Guarantors" in Section 1.01 of
the Financing Agreement is hereby amended in its entirety to read as follows:
"'Guarantors' means B P, the Company, ECI, Stetson, Sportswear,
XOXO, each XOXO Subsidiary, each Subsidiary Retailer, and all Persons which
hereafter guarantee, pursuant to Section 7.01(b) hereof or otherwise, all or any
part of the Obligations."
(h) The definition of the term "Interest Period" in Section
1.01 of the Financing Agreement is hereby amended in its entirety to read as
follows:
"'Interest Period' means with respect to any Eurodollar Loan, the
period commencing on the borrowing date or the date of any continuation of or
conversion into such Eurodollar Loan, as the case may be, and ending one, two,
three or six months thereafter, in each case as selected by the Administrative
Borrower in the applicable notice given to the Agent pursuant to Sections 2.03
or 2.11 hereof; provided that (i) each Interest Period shall begin on the first
Business Day of a month, (ii) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business
Day, unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (iii) no
Interest Period for any Eurodollar Loan shall end after the Final Maturity Date
in the case of the Revolving Credit Loans or February 26, 2002 in the case of
the Term Loan, (iv) no more than three (3) Interest Periods in the aggregate for
the Borrowers may exist at any one time and (v) the Administrative Borrower will
select Interest Periods so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period of the Term Loan."
(i) The definition of the term "Loan" in Section 1.01 of the
Financing Agreement is hereby amended in its entirety to read as follows:
"'Loan' means any Revolving Credit Loan or Term Loan made by a
Lender or the Agent to a Borrower pursuant to Article II hereof."
(j) The definition of the term "Loan Documents" in Section
1.01 of the Financing Agreement is hereby amended in its entirety to read as
follows:
"'Loan Documents' means this Agreement, the Notes, the Guarantees,
the Security Agreements, the Pledge Agreements, the Factoring Agreements, the
Assignment of Factoring Proceeds Agreement, the Existing Factor Assignment
Agreements, the Joinder Agreement, the Fee Letter, the Letter of Credit
Applications and all other instruments, agreements and other documents executed
and delivered pursuant hereto or thereto."
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(k) The definition of the term "Notes" in Section 1.01 of the
Financing Agreement is hereby amended in its entirety to read as follows:
"'Notes' means the Revolving Credit Notes and the Term Notes."
(l) The definition of the term "Obligations" in Section 1.01
of the Financing Agreement is hereby amended in its entirety to read as follows:
"'Obligations' means (i) the obligations of each Borrower to pay, as
and when due and payable (by scheduled maturity or otherwise), all amounts from
time to time owing by it in respect of any Loan Document to which it is a party,
whether for principal, interest (including, without limitation, all interest
that accrues after the commencement of any case, proceeding or other action
relating to bankruptcy, insolvency or reorganization of any Borrower, whether or
not a claim for post-filing interest is allowed in such proceeding), Letter of
Credit Obligations, fees, commissions, expense reimbursements, indemnifications
or otherwise and all Ledger Debt Obligations, and (ii) the obligations of each
Borrower to perform or observe all of its other obligations from time to time
existing under any Loan Document to which it is a party."
(m) The definition of the term "Revolving Credit Commitment"
in Section 1.01 of the Financing Agreement is hereby amended by deleting the
reference to "Schedule 1.01A-1" therein and substituting in lieu thereof
"Schedule 1.01A-2".
(n) The definition of the term "Total Commitment" in Section
1.01 of the Financing Agreement is hereby amended in its entirety to read as
follows:
"'Total Commitment' means the sums of the amounts of the Lender's
Total Revolving Credit Commitments and the Total Term Loan Commitments."
5. New Definitions. The following new definitions are added to
Section 1.01 of the Financing Agreement in appropriate alphabetical order to
read as follows:
"'B P' means B P Clothing Company, a New York corporation.
"'Consolidated Fixed Charges' means, for any Person and its
Consolidated Subsidiaries for any period, the sum of, without duplication (i)
Consolidated Net Interest Expense for such period, (ii) all principal of
Indebtedness for borrowed money of such Person or any of its Consolidated
Subsidiaries having a scheduled due date during such period (not including
mandatory prepayments pursuant to Section 2.07 hereof), (iii) all amounts
payable by such Person or any of its Consolidated Subsidiaries on Capitalized
Lease Obligations having a scheduled due date during such period, (iv) the total
income tax liability actually payable by such Person or any of its Consolidated
Subsidiaries in respect of such period, and (v) cash capital expenditures of
such Person and its Consolidated Subsidiaries made during such period."
"'Consolidated Net Interest Expense' means, for any Person and its
Consolidated Subsidiaries for any period, gross interest expense of such Person
and its Consolidated
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Subsidiaries for such period determined in conformity with GAAP less the
following for such Person and its Consolidated Subsidiaries determined in
conformity with GAAP: (i) the sum of (a) interest income for such period and (b)
gains for such period on Hedging Agreements (to the extent not included in
interest income above and to the extent not deducted in the calculation of such
gross interest expense), plus the following for such Person and its Consolidated
Subsidiaries determined in conformity with GAAP, (ii) the sum of (a) losses for
such period on Hedging Agreements (to the extent not included in such gross
interest expense) and (b) the expending of upfront costs or fees for such period
associated with Hedging Agreements (to the extent not included in gross interest
expense)."
"'Excess Cash Flow' means, for any fiscal period of the Company (i)
Consolidated Net Income (Loss) of the Company and its Consolidated Subsidiaries
for such period, plus (ii) all non-cash charges of the Company and its
Consolidated Subsidiaries deducted in arriving at such Consolidated Net Income
(Loss) for such period, less (iii) all non-cash credits of the Company and its
Consolidated Subsidiaries included in arriving at such Consolidated Net Income
(Loss) for such period, less (iv) all scheduled and mandatory cash principal
payments on the Loans and optional cash principal payments on the Loans made
during such period (but excluding (A) all prepayments made pursuant to Section
2.07(i) of this Agreement and (B), in the case of the Revolving Credit Loans,
prepayments only to the extent that the Total Revolving Credit Commitment is
permanently reduced by the amount of such prepayments), less (v) all scheduled
and mandatory cash principal payments on the BONY Indebtedness during such
period (but excluding all prepayments made on the BONY Indebtedness pursuant to
any excess cash flow or similar provision contained in the BONY Loan Documents),
less (vi) the cash portion of capital expenditures made by the Company and its
Consolidated Subsidiaries during such period to the extent permitted to be made
under this Agreement."
"'Joinder Agreement' has the meaning specified in the Second
Amendment."
"'Ledger Debt' means indebtedness owing by a Borrower to the Factor
by reason of such Borrower's purchases from other entities factored or financed
by the Factor."
"'Ledger Debt Guaranties' means indebtedness or other obligations of
a Borrower to the Factor by reason of guaranties issued by the Factor in favor
of other factors with respect to such other factor's purchase of accounts
receivable owed by such Borrower."
"'Ledger Debt Obligations' means all obligations of the Borrowers to
the Factor in connection with Ledger Debt and Ledger Debt Guaranties."
"'Second Amendment' means the Second Amendment to this Agreement
dated as of August 10, 1999."
"'Second Amendment Effective Date' has the meaning specified
therefor in the Second Amendment."
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"'Term Loan' means a term loan made by a Lender to ECI pursuant
to Section 2.01(d) hereof."
"'Term Loan Commitment' means, with respect to each Lender, the term
commitment of such Lender as set forth in Schedule 1.01A-2 hereto, as the same
may be adjusted from time to time pursuant to the terms of this Agreement."
"'Term Note' means a promissory note of the ECI, substantially in
the form of Exhibit AA hereto, made payable to the order of a Lender and
evidencing the Indebtedness resulting from the making by such Lender of such
Lender's Term Loan and delivered to the Agent pursuant to the Second Amendment,
as such promissory note may be modified or extended from time to time, and any
promissory note or notes issued in exchange or replacement therefor."
"'Total Revolving Credit Commitment' means the sum of the
Lenders' Revolving Credit Commitments."
"'Total Term Loan Commitment' means the sum of the Lenders' Term
Loan Commitments."
"'Valuation Adjustment' means, in the event the Company is required
by any Governmental Authority to adjust the value in its publicly filed
financial statements of the 6,500,000 shares of capital stock of the Company
paid as a portion of the consideration in connection with the Lola Acquisition,
the amount in its publicly filed financial statements which the chief financial
officer of the Company certifies to the Lenders is equal to such adjustment
required by such Governmental Authority (which amount shall be positive in the
case of an upward adjustment; negative in the case of a downward adjustment).
"'XOXO' means XOXO Clothing Company, Incorporated, a Delaware
corporation."
"'XOXO Subsidiaries' means 8-3 Retailing, Inc., a California
corporation, XOXO Outlets, Inc., a California corporation and each other
Subsidiary of XOXO."
6. Revolving Credit Commitments. Section 2.01(b) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(b) Notwithstanding the foregoing, the aggregate principal
amount of Revolving Credit Loans outstanding at any time to the Borrowers shall
not exceed the lower of (i) the difference between (A) the Total Revolving
Credit Commitment and (B) the aggregate Letter of Credit Obligations and (ii)
the difference between (A) the then current Borrowing Base and (B) the aggregate
Letter of Credit Obligations."
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7. Term Loan Commitments. The following new subjection (d) is
hereby added to the Section 2.01 of the Financing Agreement to read as
follows:
"(d) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein, each Lender severally agrees to
make a Term Loan to ECI on the Second Amendment Effective Date in the principal
amount not to exceed such Lender's Term Loan Commitment. Any principal amount of
a Term Loan which is repaid or prepaid by ECI may not be reborrowed."
8. Loans. Section 2.02 of the Financing Agreement is hereby amended
and restated in its entirety to read as follows:
"SECTION 2.02. Loans. Except as otherwise provided in Section 2.05,
Loans shall be made ratably by the Lenders in accordance with their respective
Revolving Credit Commitments and Term Loan Commitments as the case may be. The
initial Revolving Credit Loans shall be made on or after the Effective Date
against delivery hereunder of the Revolving Credit Notes. The Term Loans shall
be made on the Second Amendment Effective Date by the Lenders against delivery
hereunder of the Term Notes."
9. Notes; Repayment of Loans. The following new subjection (c) is
hereby added to the Section 2.04 of the Financing Agreement to read as follows:
"(c) Each Term Loan shall be evidenced by a Term Note, each
duly executed by ECI, dated the Second Amendment Effective Date and delivered to
and made payable to the order of a Lender in a principal amount equal to such
Lender's Term Loan Commitment. The Term Loans shall be payable as to principal
in nine equal installments of $500,000 on the first day of each of January,
April, July and October, commencing January 1, 2000, and a final installment of
$5,500,000 on February 26, 2002; provided that the last such installment shall
be in the amount sufficient to repay in full the payment amount of the Term Loan
on February 26, 2002."
10. Funding and Settlement Procedures. Section 2.05(a)(i) of the
Financing Agreement is hereby amended in its entirety to read as follows:
"(a) (i) Except as otherwise provided in this subsection
2.05(a), all Loans under this Agreement shall be made by the Lenders
simultaneously and proportionately according to their Pro Rata Shares of the
Total Term Loan Commitment or the Total Revolving Credit Commitment, as the case
may be, it being understood that no Lender shall be responsible for any default
by any other Lender in such other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the Loan requested be
increased or decreased as a result of the default by any other Lender in such
other Lender's obligation to make a Loan requested hereunder."
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11. Interest. Section 2.06(a) of the Financing Agreement is hereby
amended by (i) changing the title to paragraph (a) of such section to "Loans",
(ii) redesignating paragraph (a) of such section as paragraph "(a)(i)", and
(iii) adding the following new subparagraph (ii):
"(ii) Each Term Loan which is a Eurodollar Loan shall bear
interest on the principal amount thereof from time to time outstanding from the
date of such Loan until such principal amount becomes due, at a rate per annum
equal to the Eurodollar Rate for the Interest Period in effect for such Loan
plus 3.00%. Each Term Loan which is a Base Rate Loan shall bear interest on the
principal amount thereof from time to time outstanding from the date of such
Loan, until such principal amount becomes due, at a rate per annum equal to the
Base Rate, plus 0.50%."
12. Reduction of Commitment; Prepayment of Loans. Section 2.06 of
the Financing Agreement is hereby further amended by (i) redesignating paragraph
(i) of such section as paragraph "(k)", (ii) redesignating paragraph (j) of such
section as paragraph "(l)", and (iii) adding the following new paragraphs (i)
and (j):
"(i) Within ten (10) Business Days of delivery to the Agent of
audited annual financial statements pursuant to Section 7.01(a)(ii) hereof or,
if such financial statements are not delivered to the Agent on the date such
statements are required to be delivered pursuant to such Section 7.01(a)(ii),
ten (10) Business Days after the date such statements are required to be
delivered to the Agent pursuant to Section 7.01(a)(ii), the Borrowers shall pay
to the Agent an amount equal to 50% of the Excess Cash Flow for the Fiscal Year
covered by such financial statements. Each prepayment pursuant to this paragraph
(k) shall be applied to principal installments of the Term Loans in the inverse
order of maturity.
(j) The Borrowers shall immediately prepay the outstanding
principal amount of the Term Loans in the event the Total Revolving Credit
Commitment is terminated for any reason."
13. The Loans. (a) Sections 2.07(a) and (b) of the Financing
Agreement are each hereby amended in its entirety to read as follows:
"(a) The Total Term Loan Commitment shall
automatically terminate in full at 5:00 p.m. on the Second Amendment Effective
Date. The Borrowers may at any time or from time to time and without penalty or
premium reduce the Revolving Credit Commitments to an amount (which may be zero)
not less than the sum of the unpaid principal amount of all Revolving Credit
Loans then outstanding plus the principal amount of all Revolving Credit Loans
not yet made as to which notice has been given by the Administrative Borrower
under Section 2.03 hereof plus the Letter of Credit Obligations at such time
plus the stated amount of all Letters of Credit not yet issued as to which a
request has been made and not withdrawn. Any reduction shall be in an amount
which is an integral multiple of $5,000,000. Reduction of the Revolving Credit
Commitments shall be made by providing not less than two Business Days' written
notice (which notice shall be irrevocable) to such effect to the Agent
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(which notice the Agent shall promptly transmit to each Lender). Reductions of
the Revolving Credit Commitments are irrevocable and may not be reinstated. Each
such reduction shall reduce the Revolving Credit Commitment of each Lender
proportionately in accordance with its Pro Rata Share.
(b) Subject to the terms and conditions contained
in this Section 2.07, Section 2.10 hereof and elsewhere in this Agreement, the
Borrowers shall have the right to prepay, in whole or in part, the Revolving
Credit Loans, and the Term Loans; provided, that, pursuant to the terms of
Section 2.08(b) hereof, the Borrowers shall be obligated to pay the Early
Termination Fee with respect to any Loans prepaid in connection with a
termination of the Total Commitment prior to February 26, 2001."
(b) Section 2.07(e) of the Financing Agreement is hereby
amended in its entirety to read as follows:
"(e) Immediately upon the receipt by any Loan Party
or any of its Subsidiaries of any Net Proceeds from the issuance, sale,
assignment, transfer or other disposition of any Capital Stock, debt securities
or assets of the Company or any of its Subsidiaries, the Borrowers shall make a
prepayment of the Loans in an amount equal to the amount of such Net Proceeds,
provided that the Borrowers shall not be required to prepay the Loans (i) in the
case of intercompany Indebtedness between the Loan Parties permitted by Sections
7.02(b)(iii) and 7.02(f)(iii) and (v) hereof, and (ii) in the case of the Net
Proceeds of any Indebtedness of the Company permitted by Section 7.02(b)(viii)
of this Agreement and the Net Proceeds from the issuance of Capital Stock of the
Company consisting of common equity, in each case to the extent that such Net
Proceeds are used to prepay, purchase, redeem, retire, defease or otherwise
acquire the Borrower's Indebtedness in accordance with Section 7.02(t)(ii) of
this Agreement. In addition, upon receipt of aggregate Net Proceeds from any
such issuance, sale, assignment, transfer or other disposition by the Company or
any of its Subsidiaries of any Capital Stock, debt securities or assets of the
Company or any of its Subsidiaries, other than any Net Proceeds from the events
described in clause (i) of the proviso of the immediately preceding sentence,
the current Overadvance Amount limits (as such amounts are set forth in clause
(i) of the definition of "Overadvance Amount" in Section 1.01 hereof) shall each
be reduced on a dollar for dollar basis by the aggregate amount of Net Proceeds
received from any such issuance, sale, assignment, transfer or other
disposition, with such reduction to be effective upon receipt of such Net
Proceeds, provided, further that, if the Net Proceeds from the issuance of
Capital Stock of the Company consisting of common equity are used to prepay,
purchase, redeem, retire, defease or otherwise acquire the BONY Indebtedness in
accordance with Section 7.02(t)(ii) hereof, such Overadvance Amount limits shall
be reduced only to the extent that, at the time of receipt of such Net Proceeds,
the Loans and Letter of Credit Obligations exceed the Borrowing Base Before
Overadvance Amount. Such Net Proceeds shall be applied first, to the
installments of the Term Loans in the inverse order of maturity and second, to
the Revolving Credit Loans."
(c) Section 2.07(f) of the Financing Agreement is hereby
amended by deleting the reference to "Obligations" and substituting in lieu
thereof "Revolving Credit Loans".
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(d) Section 2.07(g) of the Financing Agreement is hereby
amended in its entirety to read as follows:
"(g) Immediately upon the receipt by any Loan Party
of any insurance proceeds, the Borrowers shall prepay the Loans in an amount
equal to the insurance proceeds received by such Loan Party, provided that (i)
if no Default or Event of Default has occurred and is continuing, proceeds from
insurance covering damage to property shall not be required to be so prepaid on
such date to the extent such insurance proceeds are used to replace or restore
the properties or assets in respect of which such proceeds were paid if the
Borrowers deliver a certificate to the Agent on or prior to such date stating
that such proceeds shall be used to replace or restore any such properties or
assets within a period specified in such certificate not to exceed 60 days after
the date of receipt of such proceeds (which certificate shall set forth
estimates of the proceeds to be so expended) and (ii) if all or any portion of
such proceeds not so applied to the repayment of the Loans are not so used
within the period specified in the relevant certificate furnished pursuant to
clause (i) above, such remaining portion shall be prepaid on the last day of
such specified period. Such insurance proceeds shall be applied shall be applied
first, to the installments of the Term Loans in the inverse order of maturity
and second, to the Revolving Credit Loans."
14. Fees. The first sentence of Section 2.08(a) of the Financing
Agreement is hereby amended by deleting each reference to "Total Commitment" and
substituting in lieu thereof "Total Revolving Credit Commitment".
15. Letter of Credit Guaranty. The first sentence of Section 3.01(b)
of the Financing Agreement is hereby amended and restated in its entirety to
read as follows:
"The aggregate Letter of Credit Obligations shall not exceed the
lowest of (i) the difference between (A) the Total Revolving Credit Commitment
and (B) the aggregate principal amount of Revolving Credit Loans then
outstanding, (ii) the difference between (A) the Borrowing Base and (B) the
aggregate principal amount of the Revolving Credit Loans then outstanding and
(iii) the L/C Subfacility."
16. Post Closing Deliveries. Sections 7.01(o) and 7.01(p) of
the Financing Agreement are hereby amended in their entirety to read as
follows:
"(o) Inventory and Intellectual Property Appraisals. Furnish
to the Lenders no later than October 15, 1999, appraisals, by an appraiser
satisfactory to the Agent, at the sole cost and expense of the Borrowers,
satisfactory to the Agent, of all inventory and trademarks of the Borrowers
(including the 'Members Only' and the 'XOXO' trademarks), such appraisals to be
performed on an 'orderly liquidation value' basis.
(p) Landlord and Licensor Waivers. Use its best efforts to
furnish to the Agent as soon as possible and in any event prior to October 15,
1999, (i) (A) a landlord waiver in form and substance satisfactory to the Agent
from each of the Borrowers' and the Guarantors' landlords, and (B) a warehouse
access agreement in form and substance satisfactory
-11-
to the Agent with respect to ECI's warehouse located in New Bedford,
Massachusetts, and (ii) a licensor waiver letter, in form and substance
satisfactory to the Agent, for each License Agreement, executed by each
licensor."
17. Use of Proceeds. The first sentence of Section 7.01(w) is hereby
amended and restated in its entirety to read as follows:
"The proceeds of the Revolving Credit Loans shall be used to
refinance existing Indebtedness of the Borrowers, for general working capital
purposes of the Borrowers and to make intercompany loans and advances permitted
by Sections 7.02(b)(iii) and 7.02(f)(iii) and (iv) hereof. The proceeds of the
Term Loans shall be used to pay a portion of the consideration paid in
connection with the merger of Lola, Inc. with and into ECI."
18. Liens, Etc. Section 7.02(a)(viii) of the Financing
Agreement is hereby amended by deleting the "$3,000,000" and substituting in
lieu thereof "$6,000,000".
19. Guaranties, Etc. Section 7.02(c)(iv) of the Financing
Agreement is hereby amended by deleting the "$1,000,000" and substituting in
lieu thereof "$2,000,000".
20. Merger, Consolidation, Sale of Assets, Etc. The following
proviso is hereby added to the end of each of Section 7.02(d)(i) and Section
7.02(d)(ii):
", provided, further, that the consummation of the Transactions (as
defined in the Second Amendment) shall not constitute a violation of this
subsection".
21. Investments, Etc. Section 7.02(f) of the Financing Agreement is
hereby amended by (i) deleting the "and" at the end of paragraph (vi); (ii)
deleting the "$1,000,000" in paragraph (vii) and substituting in lieu thereof
"$2,000,000", (iii) replacing the period at the end of paragraph (vii) with ";
and", and (iv) adding the following new paragraph (viii):
"(viii) (A) investments in B P and (B) investments in XOXO
pursuant to the Transactions (as defined in the Second Amendment)."
22. Capital Expenditures Section 7.02(h) of the Financing Agreement
is hereby amended by deleting the "$3,000,000" and substituting in lieu thereof
"$6,000,000".
23. Financial Covenants. (a) Section 7.02(p)(i) of the Financing
Agreement is hereby amended by deleting the "(i) $22,000,000 and" and
substituting in lieu thereof "(i) $31,750,000 plus, any Valuation Adjustment
and".
(b) The following subsection (iv) is hereby added to Section 7.02(p)
of the Financing Agreement to read in its entirety as follows:
"(iv) Fixed Charge Coverage Ratio. Permit the ratio of
Consolidated EBITDA of the Company and its Consolidated Subsidiaries to
Consolidated Fixed Charges of the Company and its Consolidated Subsidiaries for
each period of four (4) consecutive quarters
-12-
for which the last quarter ends on a date set forth below to be less than the
amount set forth opposite such date:
Minimum Fixed
Fiscal Quarter Charge Coverage Ratio
-------------- ---------------------
June 30, 2000 1.00:1.0
September 30, 2000 1.00:1.0
December 31, 2000 1.25:1.0
and thereafter
24. Notices, Etc. The address for notices to any Borrower and
the Company in Section 12.02 of the Financing Agreement and in each other
Loan Documents is hereby amended to be: Aris Industries, Inc. 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx and Xxxxx Xxxxxx, Telephone
(000) 000-0000; Facsimile (000) 000-0000.
25. Delivery of Notes. Each Lender shall deliver to the Agent, for
delivery to and cancellation by the Borrowers, the Revolving Credit Note issued
by the Borrowers and held by the Lenders under the Financing Agreement (the "Old
Note"), which Old Notes are hereby deemed cancelled effective from delivery of
the New Notes to the Agent. The Borrowers shall execute and deliver to the Agent
for the account of each Lender the Revolving Credit Notes which such Lender is
entitled to receive pursuant to Section 2.04 of the Financing Agreement, in the
form of Exhibit A thereto and in the principal amount for each Lender equal to
its Pro Rata Share of the Revolving Credit Commitment, as set forth in Schedule
1.01A-2 to this Amendment (the "New Notes"). The Agent shall release and deliver
the Old Note to the Borrowers for cancellation and deliver the New Notes to the
Lenders.
26. Schedules. (a) Paragraph (d) of Section 12.09 of the Financing
Agreement is hereby amended by deleting each reference to "Schedule 1.01A-1"
therein and substituting in lieu thereof "Schedule 1.01A-2".
(b) Schedule 1.01A-1 to the Financing Agreement is hereby
amended in its entirety to read as set forth in Annex II to this Amendment.
(c) Attached as Annex III hereto are updates to the Schedules
to the Financing Agreement revised to include all information required to be
provided therein with respect to, and only with respect to, the Additional
Borrowers and the XOXO Subsidiaries. The Schedules to the Financing Agreement
shall, without further action, be amended to include the supplemental
information contained in each such update.
27. Conditions to Effectiveness. This Amendment shall become
effective only upon satisfaction in full of the following conditions precedent
(the first date upon which all such conditions have been satisfied being herein
called the "Second Amendment Effective Date"):
-13-
(a) Representations and Warranties; No Event of Default. The
representations and warranties contained herein, in Section 6.01 of the
Financing Agreement and in each other Loan Document and certificate or other
writing delivered to the Agent and the Lenders pursuant hereto on or prior to
the Second Amendment Effective Date shall be correct on and as of the Second
Amendment Effective Date as though made on and as of such date (except to the
extent that such representations and warranties expressly relate solely to an
earlier date in which case such representations and warranties shall be true and
correct on and as of such date); and no Default or Event of Default shall have
occurred and be continuing on the Second Amendment Effective Date or would
result from this Amendment becoming effective in accordance with its terms.
(b) Delivery of Documents. The Agent shall have received on or
before the Second Amendment Effective Date the following, each in form and
substance satisfactory to the Agent and, unless indicated otherwise, dated the
Second Amendment Effective Date:
(i) counterparts of this Amendment, duly executed by the
Borrowers and the Lenders;
(ii) the New Notes, duly executed by each of the Borrowers;
(iii) (A) a Security Agreement, in the form of Exhibit C-1 to the
Financing Agreement, duly executed by each of the Additional Borrower,
and (B) a Security Agreement, in the form of Exhibit C-2 to the
Financing Agreement, duly executed by each of the XOXO Subsidiaries;
(iv) a Pledge Agreement, in the form of Exhibit D to the
Financing Agreement, duly executed by each of the Additional
Borrowers, together with the original stock certificates representing
all of the common stock of the Subsidiaries of each of the Additional
Borrowers and all inter-company promissory notes of the Borrowers
issued to each of the Additional Borrowers, accompanied by undated
stock powers executed in blank and other instruments of transfer;
(v) an amendment to each of the Pledge Agreements and Security
Agreement, delivered on the Effective Date, in substantially the forms
of Annexes IV and V hereto, duly executed by each of the Loan Parties
a party thereto;
(vi) the Joinder Agreement, duly executed by each of the
Additional Borrowers and the other parties thereto (together with the
documents delivered pursuant to clauses (i), (ii), (iii), (iv) and (v)
above collectively, the "Amendment Documents");
(vii) appropriate financing statements on Form UCC-1, duly
executed by each of the Additional Borrowers and each XOXO Subsidiary,
and duly filed in such office or offices as may be necessary or, in
the opinion of the
-14-
Agent, desirable (including, without limitation, at the United States
Patent and Trademark Office) to perfect the security interests
purported to be created by the Security Agreement and the Factoring
Agreements to which such Persons are a party;
(viii) certified copies of requests for copies of information on
Form UCC-11, listing all effective financing statements which name as
debtor any of the Additional Borrowers or any of the XOXO
Subsidiaries, together with copies of such financing statements, none
of which, except as otherwise agreed in writing by the Agent, shall
cover any of the Collateral, and results of searches for any tax and
judgment Liens filed against any of the Additional Borrowers and the
XOXO Subsidiaries and their property, which results, except as
otherwise agreed to in writing by the Agent, shall not show any such
Liens;
(ix) evidence of the insurance coverage required by the terms of
Section 7.01(h) of the Financing Agreement and the other Loan
Documents with respect to each of the Additional Borrowers and the
XOXO Subsidiaries naming the Agent an additional insured or loss payee
thereunder as specified by the Agent;
(x) a certificate of the chief executive officer or the chief
financial officer of the Parent, certifying that attached thereto are
complete and correct copies of the Merger Agreement and the other
material agreements executed in connection with the Transactions and
all other agreements, instruments and other documents executed and
delivered in connection therewith as requested by the Agent, in each
case in form and substance satisfactory to the Agent;
(xi) a copy of the resolutions of each Loan Party, certified as
of the Second Amendment Effective Date by an authorized officer
thereof, authorizing (A) the execution of each Amendment Document to
which such Person is a party and the transactions contemplated
thereby, and (B) the execution, delivery and performance by each such
Person of each Amendment Documents to which such Person is a party,
and the performance of the Financing Agreement, as amended;
(xii) a certificate of an authorized officer of each Loan Party,
certifying the names and true signatures of the representatives of
such Person authorized to sign each Amendment Document to which such
Person is a party and the other documents to be executed and delivered
by such Person in connection herewith, together with evidence of the
incumbency of such authorized officers;
(xiii) a certificate of the appropriate official(s) of the state
of organization and each state of foreign qualification of each Loan
Party, dated within 30 days of the Second Amendment Effective Date,
certifying as to the
-15-
subsistence and good standing of, and the payment of taxes by, such
Person in such states;
(xiv) a true and complete copy of the charter of each Loan Party,
certified as of a date not more than 30 days prior to the Second
Amendment Effective Date by an appropriate official of the state of
organization of each such Person (or in the case of a Loan Party that
existed on the effective date of the Financing Agreement, a
certificate confirming that such charter has not been amended or
otherwise modified since it was delivered to the Agent and the Lenders
on the effective date of the Financing Agreement and that the copy
thereof previously delivered to the Agent is true, correct and
complete as of the Second Amendment Effective Date);
(xv) a copy of the by-laws of each Loan Party , together with all
amendments thereto, certified as of the Second Amendment Effective
Date by an authorized officer of each such Person (or in the case of a
Borrower that existed on the effective date of the Financing
Agreement, a certificate confirming that such by-laws have not been
amended or otherwise modified since it was delivered to the Agent and
the Lenders on the effective date of the Financing Agreement and that
the copy thereof previously delivered to the Agent is true, correct
and complete as of the Second Amendment Effective Date);
(xvi) an opinion of (a) Xxxxxxx Xxxxxx & Xxxxx LLP, New York
counsel to the Borrowers, and (b) Xxxxxx & Schiff, LLP, California
counsel to the Borrowers, in each case as to such matters as the Agent
may reasonably request;
(xvii) a certificate of the chief executive officer or the chief
financial officer of the Company, certifying as to the matters set
forth in subsection (a) of this Section 27;
(xviii) (A) projections of the Borrowers (reflecting on a
pro-forma basis the consummation of the Transactions), in form and
substance satisfactory to the Lenders, including monthly profit and
loss statements, balance sheets and cash flow projections, for the
Fiscal Year ending December 31, 1999 and for each Fiscal Year
thereafter through and including the Fiscal Year ending as of December
31, 2002, (B) a copy of the financial statements of XOXO and its
Subsidiaries for the fiscal quarter ended April 30, 1999, and (C) a
copy of the audited financial statements of Lola, Inc. and its
Subsidiaries for the fiscal year ended January 31, 1999, together with
a certificate of the chief financial officer of the Company setting
forth all existing Indebtedness, including guarantees, pending or, to
the best of the Company's and XOXO's knowledge, threatened litigation
or claims and other contingent liabilities of XOXO and its
Subsidiaries not shown on such financial statements;
-16-
(xix) a breakdown of Inventory by XOXO and each of its
Subsidiaries and by location in the form specified in Section
7.01(a)(v)(B) of the Financing Agreement, dated within 15 days of the
Second Amendment Effective Date, certified by the chief financial
officer of the Company;
(xx) the factoring agreement between XOXO and the Factor dated
the date hereof and all related documents duly executed by the XOXO
and the Factor, certified by the chief financial officer of the
Company as a true and correct copy hereof;
(xxi) landlord waivers in form and substance satisfactory to the
Agent with respect to the parcel of property leased by XOXO at 6000
Xxxxxx Street, in Commerce, California;
(xxii) a Borrowing Base Certificate current as of the Business
Day prior to the Second Amendment Effective Date;
(xxiii) copy of each of the License Agreements to which any of
the Additional Borrowers or any of its Subsidiaries is a party as in
effect on the Second Amendment Effective Date and each other trademark
license agreement pursuant to which any of the Additional Borrowers or
any of its Subsidiaries is a party, certified as a true and correct
copy thereof by the chief financial officer of the Company together
with a certification that such license agreements remain in full force
and effect and that neither of the Additional Borrowers nor any of
their Subsidiaries has breached or defaulted in any of the obligations
under any such license agreements;
(xxiv) a copy of the most recent annual report (Form 5500 Series)
for each Employee Plan of XOXO and its Subsidiaries, if any, including
Annex VI attached thereto;
(xxv) a termination agreement duly executed by Capital Factors,
Inc. and XOXO and its Subsidiaries, together with UCC termination
statements and other documentation evidencing the termination by
Capital Factors, Inc. of its Liens in and to the properties and assets
of XOXO and its Subsidiaries; and
(xxvi) such other agreements, instruments, approvals, opinions
and other documents as the Agent may reasonably request.
(c) Proceedings. All proceedings in connection with the
transactions contemplated by each Amendment Document, and all documents
incidental thereto, shall be satisfactory to the Agent and its special counsel,
and the Agent and such special counsel shall have received all such information
and such counterpart originals or certified copies of
-17-
documents, and such other agreements, instruments, approvals, opinions and other
documents, as the Agent or such special counsel may reasonably request.
(d) Audit. The Agent may, at its option, obtain an update of
the audit of the Accounts Receivable and Inventory of the Borrowers (including
XOXO) and the Guarantors and the Agent shall be satisfied (in its sole
discretion) with the results of such updated audit.
(e) Material Adverse Effect. The Lenders shall have
determined, in their sole judgment, that (i) after giving effect to the Lola
Acquisition and the Transactions, no Material Adverse Effect shall have occurred
since February 26, 1999, and (ii) no material adverse change in the business,
properties, operations, prospects, profitability or condition (financial or
otherwise) of XOXO or its Subsidiaries shall have occurred since January 31,
1999.
(f) Consummation of the Transactions. The Agent shall have
received evidence satisfactory to it that the Transactions shall have occurred
on terms and conditions satisfactory to the Lenders.
(g) Fees. The Borrowers shall have paid the Agent for the
account of the Lenders in accordance with the Lenders' respective Pro Rata
Shares (or the Agent may charge the Loan Account pursuant to Section 4.02): (i)
a non-refundable facility fee with respect to the Revolving Credit Commitment
equal to $90,000, and (ii) a non-refundable facility fee with respect to the
Term Loan Commitment equal to $100,000.
28. Representations and Warranties. Each of the Company and the Loan
Party (including without limitation the Additional Borrowers) represents and
warrants to the Lenders as follows:
(a) The Company and each Borrower (i) is duly organized,
validly existing and in good standing under the laws of the state of its
organization and (ii) has all requisite power, authority and legal right to
execute, deliver and perform this Amendment, the other Amendment Documents to
which it is a party and all other documents executed by it in connection with
this Amendment, and to perform the Financing Agreement, as amended hereby.
(b) The execution, delivery and performance by the Company and
the Borrowers of this Amendment, the other Amendment Documents to which it is
party and all other documents executed by it in connection with this Amendment,
and the performance by the Company and the Borrowers of the Financing Agreement
as amended hereby (i) have been duly authorized by all necessary action, (ii) do
not and will not violate or create a default under the Company's or any
Borrower's organizational documents, any applicable law or any contractual
restriction binding on or otherwise affecting the Company or any Borrower or any
of the Company's or such Borrower's properties, and (iii) except as provided in
the Loan Documents, do not and will not result in or require the creation of any
Lien, upon or with respect to the Company's or any Borrower's property.
-18-
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body is
required in connection with the due execution, delivery and performance by the
Company or any of the Borrowers of this Amendment, the other Amendment Documents
to which it is a party and all other documents executed by it in connection with
this Amendment, and the performance by the Company and the Borrowers of the
Financing Agreement as amended hereby.
(d) This Amendment and the Financing Agreement, as amended
hereby, the other Amendment Documents to which it is a party, and all other
documents executed in connection with this Amendment constitute the legal, valid
and binding obligations of the Company and the Borrowers party thereto,
enforceable against such Persons in accordance with their terms except to the
extent the enforceability thereof may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect affecting generally the enforcement of creditors' rights and remedies and
by general principles of equity.
(e) The representations and warranties contained in Article VI
of the Financing Agreement are correct on and as of the Second Amendment
Effective Date as though made on and as of the Second Amendment Effective Date
(except to the extent such representations and warranties expressly relate to an
earlier date), and no Event of Default or Default, has occurred and is
continuing on and as of the Second Amendment Effective Date.
(f) Neither (i) the consummation of the Transactions, or (ii)
the execution, delivery and performance by the Borrowers and the Guarantors of
this Amendment and the other Amendment Documents shall contravene in any way or
result in a default or event of default under the BONY Loan Documents.
29. Continued Effectiveness of Financing Agreement. Each of the
Company and the Borrowers hereby (i) confirms and agrees that each Loan Document
to which it is a party is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects except that on and after
the Second Amendment Effective Date of this Amendment all references in any such
Loan Document to "the Financing Agreement", "thereto", "thereof", "thereunder"
or words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment, and (ii) confirms and agrees
that to the extent that any such Loan Document purports to assign or pledge to
the Agent, or to grant to the Agent a Lien on any collateral as security for the
Obligations of the Company and the Borrowers from time to time existing in
respect of the Financing Agreement and the Loan Documents, such pledge,
assignment and/or grant of a Lien is hereby ratified and confirmed in all
respects.
-19-
30. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) The Borrowers will pay on demand all out-of-pocket costs
and expenses of the Agent in connection with the preparation, execution and
delivery of this Amendment, including, without limitation, the reasonable fees,
disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to the
Agent.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ARIS INDUSTRIES, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
EUROPE CRAFT IMPORTS, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
ECI SPORTSWEAR, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
STETSON CLOTHING COMPANY, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
B P CLOTHING COMPANY, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
XOXO CLOTHING COMPANY, INCORPORATED
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
------------------------------
AGENTS AND LENDERS
------------------
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Collateral Agent
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Title: Vice President
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------
Title: Vice President
------------------------------
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ XXXXXX XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
------------------------------
Title: Assistant Manager
------------------------------
By: /s/ R. XXXXX XXXXXXXXX
--------------------------------
Name: R. Xxxxx Xxxxxxxxx
------------------------------
Title: Vice President
------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------
Title: Assistant Vice President
------------------------------
