XXXXXXX CHAUS, INC.
000 XXXXXXXX XXXX
XXXXXXXX, XXX XXXXXX 00000
May 5, 1997
BNY Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to the Restated and Amended Financing
Agreement dated as of February 21, 1995 (as same has been amended,
supplemented or otherwise modified, from time to time, the "Financing
Agreement") by and between Xxxxxxx Chaus, Inc. ("Borrower") and BNY Financial
Corporation ("Lender"). All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Financing Agreement.
Borrower has failed to comply with the provisions of
Sections 9(a) (vi), 9(a)(vii) and 9(a)(xvii) of the Financing Agreement for
the third quarter of fiscal year 1997 comprising the period from January 1,
1997 through and including March 31, 1997 (the "Period") by failing to
maintain: (i) Tangible Net Worth for the Period not less than ($17,250,000),
(ii) Working Capital for the Period not less than ($30,500,000) and (iii) a
Profit before taxes (as defined under GAAF) for the Period not less than
$500,000.
Without in any way limiting any other rights of Lender under
the Financing Agreement, by signing below Lender agrees that Borrower's
violation of the (i) Tangible Net Worth covenant contained in Section 9(a)(vi)
of the Financing Agreement, (ii) Working Capital covenant contained in Section
9(a)(vii) of the Financing Agreement and (iii) Maximum Permitted Loss covenant
contained in Section 9(a)(xvii) of the Financing Agreement, each only as
respects the Period, is hereby waived, but only to the extent that the actual
covenant calculations as be prepared by Borrower do not reflect in any case
breaches by Borrower of a magnitude greater than as reflected by the estimated
covenant calculations as prepared by Borrower and as attached hereto as
Exhibit 1.
Except as expressly waived or otherwise specifically
provided herein, all of the representations, warranties, terms, covenants and
conditions of the Financing Agreement shall remain unamended and unwaived and
shall continue to be and shall remain in full force and effect in accordance
with their respective terms. The waivers set forth herein shall be limited
precisely as provided for herein to the provisions expressly waived herein and
shall not be deemed a waiver of, amendment of, consent to or modification of
any other term or provision of
the Financing Agreement or of any transaction or future action on the part of
Borrower requiring Lender's consent under the Financing Agreement.
This letter shall become effective upon receipt by Lender of
(i) four (4) copies of this Waiver Letter executed by Borrower and agreed to
by Xxxxxxxxx Xxxxx as guarantor and (ii) a $25,000 waiver fee, which may be
charged to Borrower's loan account with Lender simultaneously with Lender's
execution below.
This letter may be signed in one or counterparts, each of
which taken together shall constitute one and the same agreement.
Very truly yours,
XXXXXXX CHAUS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Its: Chief Executive Officer
AGREED AND ACKNOWLEDGED:
/s/ Xxxxxxxxx Xxxxx
--------------------------
XXXXXXXXX XXXXX
AGREED AND ACKNOWLEDGED:
BNY FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Its: Vice President
EXHIBIT 1
XXXXXXX CHAUS, INC.
COVENANT CALCULATION
QUARTER ENDED MARCH 31, 1997
TANGIBLE NET WORTH
As calculated: Equity ($47,729,000)
Subordinated debt 25,653,000
Goodwill & intangible assets 0
--------------
Calculated Tangible Net Worth ($22,076,000)
==============
Minimum required:
Tangible Net Worth ($17,250,000)
--------------
WORKING CAPITAL
As calculated:
Current Assets $48,492,000
Current Liabilities 72,746,000
--------------
Working Capital ($24,254,000)
==============
Minimum required:
Working Capital Minimum ($20,500,000)
==============
NET PROFIT (LOSS) BEFORE TAXES
FOR QUARTER ENDED MARCH 31, 1997
As calculated: ($3,218,000)
==============
Minimum required profit before taxes: $ 500,000
==============
EXHIBIT 1
CHAUS
May 1, 1997
Xx. Xxxx Xxxxx
BNY FINANCIAL CORPORATION
1290 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: FINANCING AGREEMENT BETWEEN US, ORIGINALLY
EXECUTED BY YOU ON SEPTEMBER 24, 1991, AS RESTATED
AND AMENDED EFFECTIVE AS OF JULY 1, 1992, AS AMENDED
AND SUPPLEMENTED AS OF FEBRUARY 21, 1995, AND AS
RESTATED AND AMENDED APRIL 29,1997, (THE "FINANCING
AGREEMENT")
Dear Andy:
As detailed by the attached calculations, Xxxxxxx Chaus, Inc. is not in
compliance with the following covenants:
9(a)(vi) Our "Tangible Net Worth" is greater than ($17.3) million.
9(a)(vii) Our "Working Capital" is greater than $(20.5) million.
9(a)(xvii) Our "Minimum Required Profit" for the quarter is less than
$0.5 million.
We hereby request a waiver of these covenants for the third quarter of
fiscal year 1997, the period from January 1, 1997 through and including March
31, 1997. Thank you in advance for your cooperation and assistance in this
matter.
Very truly yours,
XXXXXXX CHAUS, INC.
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Chief Financial Officer
WSM:nj
000 Xxxxxxxx Xxxx x Xxxxxxxx, XX 00000 o 000-000-0000
o Fax 000-000-0000 o Fax 000-000-0000
