FIRST AMENDMENT
TO
FINANCING AGREEMENT
First Amendment, dated as of March 25, 1999, to the Financing Agreement,
dated as of February 26, 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 lenders listed on Schedule I hereto
under the captions "Continuing Lenders" (the "Continuing Lenders") and
"Additional Lenders" (the "Additional Lenders" and together with the Continuing
Lenders, each a "Lender" and collectively, the "Lenders"), and The CIT
Group/Commercial Services, Inc., as agent for the Lenders (in such capacity, the
"Agent").
The Company, the Borrowers, the Lenders and the Agent desire to (i) appoint
The Chase Manhattan Bank as Administrative Agent, (ii) add the Additional
Lenders as parties to the Financing Agreement, and (iii) amend certain other
terms and conditions hereafter set forth. In addition, The CIT Group/Commercial
Services, Inc. ("CIT") wishes to assign a portion of its interests in the
Revolving Credit Commitment and the Loans and Letter of Credit Obligations
outstanding under the Financing Agreement to the Additional Lenders and the
Additional Lenders wish to accept such assignments.
Accordingly, the Company, the Borrowers, 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. Cover Page. The Cover Page to the Financing Agreement is hereby amended
in its entirety to read as set forth in Annex I to this Amendment.
3. Preamble. 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' and, together with ECI and Sportswear, 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')."
4. Existing Definitions. (a) The definition of the term "Eligible
Inventory" in Section 1.01 of the Financing Agreement is hereby amended by
deleting clause (vi)(B) in its entirety and substituting in lieu thereof:
"(B) 'in transit', provided, that (x) such 'in transit' Inventory is or
will be finished goods Inventory that is or will be shipped as finished
goods under a Letter of Credit issued by the L/C Issuer pursuant to this
Agreement to a location in the United States described in clause (vi)(A)
above and (y) upon ten (10) days prior written notice from the Agent to the
Administrative Borrower, the Inventory described in subclause (vi)(B)(x)
above shipped under a Letter of Credit issued after such written notice
shall be consigned to a common carrier that has issued or will issue
documents of title covering such Inventory to the Agent or the L/C Issuer
or"
(b) The definition of the term "Required Lenders" in Section 1.01 of the
Financing Agreement is hereby amended in its entirety to read as follows:
"'Required Lenders' means Lenders whose Pro Rata Shares aggregate more than
50%."
(c) 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" therein and substituting in lieu thereof "Schedule 1.01A-1".
5. New Definitions. (a) The new definition "Administrative Agent" is hereby
added to Section 1.01 of the Financing Agreement to read as follows:
"'Administrative Agent' has the meaning specified therefore in the
preamble hereto."
(b) The new definition "Collateral Agent" is hereby added to Section 1.01
of the Financing Agreement to read as follows:
"'Collateral Agent' has the meaning specified therefore in the
preamble hereto."
6. Assignments. (a) On and as of the Amendment Effective Date (as
hereinafter defined), CIT shall assign and each of the Additional Lenders shall
purchase, at the principal amount thereof, such interests in the Revolving
Credit Loans and Letter of Credit Obligations outstanding on such date as shall
be necessary in order that, after giving effect to all such assignments and
purchases, the Loans and Letter of Credit Obligations outstanding will be held
by the Lenders ratably in accordance with their Pro Rata Shares in the Revolving
Credit Commitment, as set forth in Annex II to this Amendment. Such assignments
and purchases shall
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be without recourse, representation or warranty, except that (i) CIT represents
that it is the legal and beneficial owner of the interests assigned by it free
and clear of any Lien and (ii) paragraphs 2 (other than clauses (i) and (v)
thereof), 4 and 5 of Exhibit H to the Financing Agreement are hereby
incorporated by reference as if set forth herein and CIT shall be deemed to have
made the representations, warranties and statements of Assignor in such
paragraphs and each Additional Lender shall be deemed to have made the
representations, warranties and statements of Assignee in such paragraphs.
(b) On the Amendment Effective Date, (i) each of the Additional Lenders
shall pay the purchase price for the Revolving Credit Loans purchased by it
pursuant to paragraph (a) of this Section 6 by wire transfer of immediately
available funds to the Agent in New York, New York, not later than 12:00 noon,
New York City time, and (ii) the Agent shall promptly pay to CIT, out of the
amounts received by it pursuant to clause (i) of this paragraph (b), the
purchase price for the interests assigned by it pursuant to such paragraph (a)
by wire transfer of immediately available funds to an account designated by CIT.
(c) The Company and the Borrowers hereby consent to the assignments and
purchases provided for in paragraphs (a) and (b) of this Section 6 and agree
that each Additional Lender shall have all of the rights of a Lender under the
Financing Agreement with respect to the interests purchased by it pursuant to
such paragraphs. Commencing on the Amendment Effective Date, each Additional
Lender will be a party to the Financing Agreement, agrees to be bound by the
terms and conditions of the Financing Agreement and the Loan Documents and will
have all of the rights and obligations of a Lender under the Financing Agreement
and the Loan Documents.
7. Delivery of Notes. CIT shall deliver to the Agent, for delivery to and
cancellation by the Borrowers, the Note issued by the Borrowers and held by CIT
under the Financing Agreement (the "Old Note"), which Old Note is 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 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 Annex II 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.
8. Accrued Interest and Fees. At the times and pursuant to the terms
contained in the Financing Agreement, the Agent will pay all accrued interest
and fees payable pursuant to Sections 2.08(a) and 3.03(b) of the Financing
Agreement to the Lenders entitled thereto after giving effect to the assignments
and purchases made pursuant to Section 6 above. On the Amendment Effective Date,
CIT shall pay to each Additional Lender any fee that has been agreed upon
between CIT and such Additional Lender.
9. Schedule. (a) Paragraph (d) of Section 12.09 of the Financing Agreement
is hereby amended by deleting each reference to "Schedule 1.01A" therein and
substituting in lieu thereof "Schedule 1.01A-1".
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(b) Schedule 1.01A to the Financing Agreement is hereby amended in its
entirety to read as set forth in Annex II to this Amendment.
10. 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 shall have been satisfied being herein called the
"Amendment Effective Date"):
(i) The representations and warranties contained in this Amendment and
in Article VI of the Financing Agreement shall be correct in all material
respects on and as of the Amendment Effective Date as though made on and as
of such date (except where such representations and warranties relate to an
earlier date in which case such representations and warranties shall be
true and correct as of such earlier date); no Event of Default or Default
shall have occurred and be continuing on the Amendment Effective Date, or
result from this Amendment becoming effective in accordance with its terms.
(ii) The Agent shall have received counterparts of this Amendment
which bear the signatures of the Company, the Borrowers and each of the
Lenders.
(iii) The Agent shall have received the New Notes, duly executed by
each of the Borrowers.
(iv) The Agent shall have received an acknowledgment to the agreement
among the Lenders duly executed by each Additional Lender.
(v) All legal matters incident to this Amendment shall be satisfactory
to the Agent and its counsel.
11. Representations and Warranties. Each of the Company and the 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 New Notes, in the case of the Borrowers, 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 and all other documents executed by it in connection
with this Amendment, the execution, delivery and performance by each Borrower of
the New Notes 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.
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(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 and all other documents executed by it in
connection with this Amendment, the execution, delivery and performance by each
Borrower of the New Notes 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, 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 Amendment Effective Date as
though made on and as of the 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
Amendment Effective Date.
12. 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 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.
13. 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 reasonable out-of-pocket costs and
expenses of the Agent in connection with the preparation, execution and delivery
of
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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:________________________
Name:______________________
Title:_____________________
EUROPE CRAFT IMPORTS, INC.
By:________________________
Name:______________________
Title:_____________________
ECI SPORTSWEAR, INC.
By:________________________
Name:______________________
Title:_____________________
STETSON CLOTHING COMPANY, INC.
By:________________________
Name:______________________
Title:_____________________
AGENTS AND LENDERS
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Collateral Agent
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
Address:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wiring Instructions:
The Chase Manhattan Bank
ABA # 000000000
Acct. # 0000000000
Attn: Commercial Loan Services Department
4 Metrotech Center
LENDERS
ISRAEL DISCOUNT BANK OF NEW YORK
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
PNC BANK, NATIONAL ASSOCIATION
By:_______________________________
Name:_____________________________
Title:____________________________
Address:
Xxx Xxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wiring Instructions:
PNC Business Credit
ABA # 000000000
Acct. # 196039957830
Ref.: Aris Industries, Inc.
SCHEDULE I
CONTINUING LENDERS:
The CIT Group/Commercial Services, Inc.
Israel Discount Bank of New York
ADDITIONAL LENDERS:
The Chase Manhattan Bank
PNC Bank, National Association
ANNEX I
FINANCING AGREEMENT
Dated as of February 26, 1999
by and among
ARIS INDUSTRIES, INC.,
EUROPE CRAFT IMPORTS, INC.,
ECI SPORTSWEAR, INC.,
STETSON CLOTHING COMPANY, INC.,
THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as Collateral Agent
ANNEX II
Schedule 1.01A-1
Lenders and Lenders' Commitments
Revolving
Lender Credit Commitment Percentage
------ ----------------- ----------
The CIT Group/Commercial Services, Inc. $30,000,000 46.1539%
Israel Discount Bank of New York $10,000,000 15.3846%
The Chase Manhattan Bank $15,000,000 23.0769%
PNC Bank, National Association $10,000,000 15.3846%
----------- --------
$65,000,000 100%
