AMENDMENT NO. 5
TO
RESTATED AND AMENDED FINANCING AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of January 31,
1997, by and between XXXXXXX CHAUS, INC., a New York corporation ("Borrower")
and BNY FINANCIAL CORPORATION ("Lender").
BACKGROUND
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Borrower and Lender are parties to a Restated and Amended Financing
Agreement dated as of February 21, 1995 (as amended, supplemented or otherwise
modified from time to time, the "Financing Agreement") pursuant to which
Lender provided Borrower with certain financial accommodations.
Borrower has requested that Lender amend certain provisions of the
Financing Agreement and Lender is willing to do so on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrower by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Financing Agreement.
2. Amendment to Financing Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Financing Agreement is
hereby amended as follows:
2.1 Section 7(c)(v)(iii) is hereby amended in its entirety to provide as
follows:
"(iii) if termination occurs during the third year in which this
Agreement is in effect, you shall pay us $1,500,000;"
2.2 Section 8 is hereby amended by amending the definition of Applicable
Permitted Overadvance in its entirety to provide as follows:
"Applicable Permitted Overadvances" shall mean solely with respect to the
period commencing on the date hereof and ending on June 30, 1997, provided
that no Event of Default has occurred or is continuing (in which event the
Overadvance shall be immediately repaid in its entirety), the amounts set
forth below:
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December 6, 1996 through March 31, 1997 $15,000,000
April 1, 1997 through April 9, 1997 $ 9,500,000
April 10, 1997 through April 28, 1997 $12,000,000
April 29, 1997 through May 8, 1997 $10,750,000
May 9, 1997 through May 25, 1997 $13,000,000
May 26, 1997 through June 5, 1997 $13,500,000
June 6, 1997 through June 25, 1997 $15,000,000
June 26, 1997 through June 30, 1997 $13,750,000
July 1, 1997 and thereafter $ - 0 -
On July 1, 1997 and thereafter there shall be no further Applicable
Permitted Overadvances."
3. Conditions of Effectiveness. This Amendment shall become effective as
of January __, 1997, when and only when Lender shall have received four (4)
copies of this Amendment executed by Borrower and consented and agreed to by
Xxxxxxxxx Xxxxx as guarantor.
4. Representations and Warranties. Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Financing Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the
Financing Agreement to the extent the same are not amended hereby and
agree that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this Amendment.
(c) No event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect to
the Financing Agreement.
5. Effect on the Financing Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Financing Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the
Financing Agreement as amended hereby.
(b) Except as specifically amended herein, the Financing Agreement,
and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect,
and are hereby ratified and confirmed.
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(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Lender,
nor constitute a waiver of any provision of the Financing Agreement, or
any other documents, instruments or agreements executed and/or delivered
under or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which taken together shall be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
XXXXXXX CHAUS, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: CFO
BNY FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: SVP
CONSENTED AND AGREED TO:
/s/ Xxxxxxxxx Xxxxx
XXXXXXXXX XXXXX
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