Exhibit 10.130
FOURTH AMENDMENT
TO
FINANCING AGREEMENT
Fourth Amendment, dated as of April 30, 2000, to the Financing Agreement,
dated as of February 26, 1999, as amended by the First Amendment, dated as of
March 25, 1999, by the Second Amendment, dated as of August 10, 1999 and by the
Third Amendment dated as of February 15, 2000 (as so amended, 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"), 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 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 collateral agent for the Lenders (in
such capacity, the "Collateral Agent" or "Agent").
WHEREAS, the Company, the Borrowers, the Lenders, the Administrative Agent
and the Agent wish to amend certain provisions of the Financing Agreement.
Accordingly, the Company, the Borrowers, the Lenders, the Administrative
Agent and the Agent 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. Existing Definitions.
(a) The definition of the term "Consolidated Net Income (Loss)" in Section
1.01 of the Financing Agreement is hereby amended to add the following at the
end thereof: "For purposes of the financial covenants set forth in Section
7.02(p) of this Agreement, Consolidated Net Income (Loss) shall be increased by
the sum of (i) $400,000, representing the amendment fee paid to the Lenders in
connection with the Fourth Amendment, and (ii) an amount equal to the value of
the non-cash compensation granted to Xxxxxx Xxxxx in connection with the Simon
Limited Guaranty."
(b) The definition of the term "Consolidated Net Worth" in Section 1.01 of
the Financing Agreement is hereby amended to add the following at the end
thereof: "For purposes of the financial covenants set forth in Section 7.02(p)
of this Agreement, Consolidated Net Worth shall be increased by the sum of (i)
$400,000, representing the amendment fee paid to the Lenders in connection with
the Fourth Amendment, and (ii) an amount equal to the value of non-cash
compensation granted to Xxxxxx Xxxxx in connection with the Simon Limited
Guaranty."
(c) The definition of the term "Guaranties" in Section 1.01 of the
Financing Agreement is hereby amended by (i) deleting the word "and" after
clause (i) thereof, and (ii) adding a new clause (iii) to read as follows:
"(iii) the Simon Limited Guaranty."
(d) The definition of the term "Overadvance Amount" in Section 1.01 of the
Financing Agreement is hereby amended in its entirety to read as follows:
"'Overadvance Amount' means (i) $7,000,000 from April 1, 2000 through
and including Xxxxx 00, 0000, (xx) $6,000,000 on Xxxxx 00, 0000, (xxx)
$9,000,000 from May 1, 2000 through and including May 30, 2000, (iv)
$8,000,000 on May 31, 2000, (v) $7,500,000 from June 1, 2000 through and
including June 29, 2000, (vi) $6,500,000 on June 30, 2000, (vii) $4,500,000
from July 1, 2000 through and including July 30, 2000, (viii) $3,500,000 on
July 31, 2000, (ix) $2,000,000 from August 1, 2000 through and including
August 30, 2000, (x) $1,000,000 on August 31, 2000, and (xi) zero
thereafter."
3. New Definitions: The following new definitions are added to Section 1.01
of the Financing Agreement in the appropriate alphabetical order to read as
follows:
"'Fourth Amendment' means the Fourth Amendment, dated as of April 30,
2000, to this Agreement."
"'Guaranty Payment' has the meaning specified therefor in Section
7.02(r)."
"'Reimbursement Payment' has the meaning specified therefor in Section
7.02(r)."
"'Simon Limited Guaranty' means the Limited Guaranty dated as of April
30, 2000 made by Xxxxxx Xxxxx in favor of the Lenders and the Agent in
connection with the Fourth Amendment."
4. Settlement Period. The first sentence of Section 2.05(b)(i) of the
Financing Agreement is hereby amended in its entirety to read as follows:
"With respect to each Eurodollar Loan, on the first and the last day
of each Interest Period and, with respect to all periods for which the
Agent, on behalf of the Lenders, has funded Base Rate Loans pursuant to
subsection 2.05(a), on the first Business Day after the last day of each
week, or such shorter period as the Agent may from time to time select (any
such period being herein called a "Settlement Period"), the Agent shall
notify each Lender of the unpaid principal amount of the Revolving Credit
Loans outstanding as of the last of the Settlement Period."
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5. Interest. Section 2.06(a) of the Financing Agreement is hereby amended
in its entirety to read as follows:
"(a) Loans. (i) Each Revolving Credit 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 2.75%. Each Revolving Credit 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 0.25%.
(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 3.25%. 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 0.75%."
6. Prepayment of Loans. The first sentence of Section 2.07(c) of the
Financing Agreement is hereby amended in its entirety to read as follows:
"If at any time the Borrowing Base is less than the sum of the
outstanding principal on all Revolving Credit Loans outstanding plus the
outstanding amount of all Letter of Credit Obligations, the Borrowers will
(i) immediately give notice of such occurrence to the Agent and (ii) prepay
the Revolving Credit Loans in an amount which will reduce the sum of the
outstanding principal on all Revolving Credit Loans, to an amount less than
or equal to the then current Borrowing Base, less the outstanding amount of
all Letter of Credit Obligations."
7. Availability. (a) Section 2.07(h) of the Financing Agreement is hereby
amended in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in this Agreement,
the Borrowers shall repay the Revolving Credit Loans in an amount
sufficient to cause the Availability of the Borrowers, after giving effect
to all Revolving Credit Loans and Letter of Credit Obligations, to be not
less than $3,000,000 on the last day of October and November of each year."
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8. Amendment Fee. The following Section 2.08(d) is hereby added to Section
2.08 of the Financing Agreement:
"(d) Fourth Amendment Fee. Upon the effective date of the Fourth
Amendment, the Borrowers shall be jointly and severally obligated to pay to
the Agent, for the ratable benefit of the Lenders in accordance with their
Pro Rata Shares, an amendment Fee of $400,000, which amendment fee shall be
fully earned on the effective date of the Fourth Amendment and shall be
payable $200,000 on May 31, 2000 and $200,000 on June 30, 2000."
9. Monthly Financial Statements. Section 7.01(a)(iii) of the Financing
Agreement is hereby amended by deleting the month "January 2000" in the second
line thereof and substituting in lieu thereof "July 2000."
10. Indebtedness. Section 7.02(b) of the Financing Agreement is hereby
amended by (i) deleting the word "and" after clause (viii) thereof, (ii)
redesignating clause (ix) thereof as new clause (x) thereof, and (iii) adding a
new clause (ix) to read as follows:
"(ix) to the extent it constitutes Indebtedness, obligations with
respect to any Reimbursement Payment; and"
11. Investments. Section 7.02(f) of the Financing Agreement is hereby
amended by (i) deleting the word "and" after clause (vi) thereof, (ii)
redesignating clause (vii) thereof as new clause (viii) thereof, and (iii)
adding a new clause (vii) to read as follows:
"(vii) loans and advances by any Borrower to the Company, the proceeds
of which are used to make a Reimbursement Payment permitted by Section
7.02(r), provided that such loans and advances are without duplication of
any dividends made pursuant to Section 7.02(i)(v); and"
12. Dividends. Section 7.02(i) of the Financing Agreement is hereby amended
by (i) deleting the word "and" after clause (iii) thereof and (ii) adding a new
clause (v) to read as follows:
"(v) the Borrowers may pay dividends to the Company, the proceeds of
which are used to make a Reimbursement Payment permitted by Section
7.02(r), provided that such dividends are without duplication of any loans
and advances made pursuant to Section 7.02(f)(vii)."
13. Transactions with Affiliates. Section 7.02(m) of the Financing
Agreement is hereby amended by deleting the words "Except as set forth in
Schedule 7.02(m)," and substituting in lieu thereof "Except as set in Schedule
7.02(m) and except for any Reimbursement Payment permitted by Section 7.02(r),"
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14. Financial Covenants. Section 7.02(p) of the Financing Agreement is
hereby amended in its entirety to read as follows:
"(i) Net Worth. Permit Consolidated Net Worth of the Company and its
Consolidated Subsidiaries at the end of each of the following Fiscal
Quarters to be less than: (A) for the Fiscal Quarter ending as of March 31,
2000, $30,750,000, (B) for the Fiscal Quarter ending as of June 30, 2000,
$25,000,000, (C) for the Fiscal Quarter ending as of September 30, 2000,
$32,500,000, and (D) for the Fiscal Quarter ending December 31, 2000,
$37,650,000;
provided that, upon receipt of the financial projections required to be
delivered to the Lenders pursuant to Section 7.01(a)(vi) hereof for each
Fiscal Year, the Company and the Agent shall negotiate in good faith to
determine the Consolidated Net Worth for the Company and its Consolidated
Subsidiaries as of the end of each Fiscal Quarter covered by such financial
projections and, in the event that the Company and the Required Lenders are
unable to agree upon the amounts of such Consolidated Net Worth on or
before the date that is 30 days after the date that the Lenders have
received such financial projections, the Consolidated Net Worth at the end
of each Fiscal Quarter of the Fiscal Year covered by such financial
projections shall not be less than the amount set forth for the last Fiscal
Quarter end set forth above (December 31, 2000).
(ii) Debt Service Coverage Ratio. For each period of four (4)
consecutive Fiscal Quarters for which the last Fiscal Quarter ends on a
date set forth below, permit the ratio of (A) Consolidated EBITDA of the
Company and its Consolidated Subsidiaries for such period to (B) the sum of
(x) gross interest expense of the Company and its Consolidated Subsidiaries
for such period plus (y) all principal of Indebtedness for borrowed money
of the Company and its Consolidated Subsidiaries having a scheduled payment
or due date in such period plus (z) all amounts payable by the Company and
its Consolidated Subsidiaries on Capitalized Lease Obligations having a
scheduled due date in such period (the "Debt Service Coverage Ratio") to be
less than the amount set forth below opposite such date:
Debt Service
Fiscal Quarter Coverage Ratio
-------------- --------------
March 31, 2000 0.75:1.0
June 30, 2000 0.30:1.0
September 30, 2000 0.75:1.0
December 31, 2000 1.25:1.0
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provided that, upon receipt of the financial projections required to be
delivered to the Lenders pursuant to Section 7.01(a)(vi) hereof for each
Fiscal Year, the Company and the Agent shall negotiate in good faith to
determine the Debt Service Coverage Ratio as of the end of each Fiscal
Quarter covered by such financial projections and, in the event that the
Company and the Required Lenders are unable to agree upon such ratio on or
before the date that is 30 days after the date that the Lenders have
received such financial projections, the Debt Service Coverage Ratio at the
end of each Fiscal Quarter of the Fiscal Year covered by such financial
projections shall not be less than the ratio set forth for the last Fiscal
Quarter end set forth above (December 31, 2000).
(iii) Net Loss. Incur an Adjusted Consolidated Net Loss (A) for the
Fiscal Quarter ending March 31, 2000 of more than ($6,400,000), (B) for the
Fiscal Quarter ending June 30, 2000 of more than ($4,800,000), and (C) for
any Fiscal Quarter commencing on or after the Fiscal Quarter ending
September 30, 2000;
provided that, upon receipt of the financial projections required to be
delivered to the Lenders pursuant to Section 7.01(a)(vi) hereof for each
Fiscal Year, the Company and the Agent shall negotiate in good faith to
determine the Adjusted Consolidated Net Loss as of the end of each Fiscal
Quarter covered by such financial projections and, in the event that the
Company and the Required Lenders are unable to agree upon the amounts of
such Adjusted Consolidated Net Loss on or before the date that is 30 days
after the date that the Lenders have received such financial projections,
there shall be no Adjusted Consolidated Net Loss at the end of any Fiscal
Quarter of the Fiscal Year covered by such financial projections.
(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 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 0.20:1.0
September 30, 2000 0.40:1.0
December 31, 2000 0.80:1.0
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provided that, upon receipt of the financial projections required to be
delivered to the Lenders pursuant to Section 7.01(a)(vi) hereof for each
Fiscal Year, the Company and the Agent shall negotiate in good faith to
determine the ratio of Consolidated EBITDA of the Company and its
Consolidated Subsidiaries to Consolidated Fixed Charges of the Company and
its Consolidated Subsidiaries as of the end of each Fiscal Quarter covered
by such financial projections and, in the event that the Company and the
Required Lenders are unable to agree upon such ratio on or before the date
that is 30 days after the date that the Lenders have received such
projections, such ratio for each Fiscal Quarter of the Fiscal Year covered
by such financial projections shall not be less than the ratio set forth
for the last Fiscal Quarter end set forth above (December 31, 2000)."
15. Reimbursement Payments. The following Section 7.02(r) is hereby added
to Section 7.02 of the Financing Agreement to read as follows:
"(r) Reimbursement Payments. After any payment is made by or on behalf
of Xxxxxx Xxxxx under the Simon Limited Guaranty (a "Guaranty Payment"),
directly or indirectly, make or permit any of their Subsidiaries to make,
any payment in the nature of a subrogation, reimbursement, exoneration,
contribution or indemnity payment or any other similar payment, whether
arising by operation of law or by contract, to or for the benefit of Xxxxxx
Xxxxx in connection with such Guaranty Payment, provided that, at any time
on or after December 10, 2000, the Company or any Borrower may make a
Reimbursement Payment in an amount not exceeding the amount of the
corresponding Guaranty Payment if (i) no Event of Default exists
immediately after giving effect to such Reimbursement Payment and no Event
of Default has existed at any time during the period of thirty (30)
consecutive days prior to such Reimbursement Payment and (ii) Availability
is not less than $1,000,000 immediately after giving effect to such
Reimbursement Payment."
16. Availability. Section 7.02(s) of the Financing Agreement is hereby
amended in its entirety to read as follows:
"(s) Availability. Permit Availability, after giving effect to all
Revolving Credit Loans and Letter of Credit Obligations outstanding, to be
less than $3,000,000 on the last day of October and November of each year."
17. Waivers and Consents. (a) Pursuant to the request of the Company and
the Borrowers and in accordance with Section 12.03 of the Financing Agreement,
the Lenders hereby consent to, and waive any Event of Default that would
otherwise arise under Sections 10.01(a) and (c) of the Financing Agreement from
any non-compliance by the Company and the Borrowers with the provisions of (i)
Section 7.01(k) of the Financing Agreement by
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reason of the failure of the Company and the Borrowers to furnish to the Agent
for the benefit of the Lenders a collateral assignment of the key man life
insurance policy described in such Section, provided that such collateral
assignment is delivered to the Agent on or before May 31, 2000, (ii) Section
7.01(o) of the Financing Agreement by reason of the failure of the Company and
the Borrowers to furnish to the Lenders (A) appraisals of all trademarks of the
Borrowers on or before October 15, 1999, and (B) appraisals of all Inventory of
the Borrowers, (iii) Section 7.01(p) of the Financing Agreement by reason of the
failure of the Borrowers to furnish the waivers and access agreements described
in such Section prior to October 15, 1999, provided that the Borrowers use best
efforts to furnish such waivers and access agreements to the Agent prior to June
30, 2000; (iv) Section 7.02(p)(iii) of the Financing Agreement by reason of the
Adjusted Consolidated Net Loss being greater than ($1,500,000) for the Fiscal
Quarter ending December 31, 1999, provided that the Adjusted Consolidated Net
Loss for such Fiscal Quarter was not greater than ($2,900,000), and (v) Sections
2.07(b) and 7.02(s) of the Financing Agreement by reason of Availability being
less than $7,500,000 on December 31, 1999, provided that Availability was not
less than $5,000,000 on such date.
(b) The waivers and consents contained in this Section 17 (i) shall become
effective as of the Fourth Amendment Effective Date (as hereinafter defined),
(ii) shall be effective only in this specific instance and for the specific
purposes set forth herein, and (iii) do not allow for any other or further
departure from the terms and conditions of the Financing Agreement or any other
Loan Document, which terms and conditions shall continue in full force and
effect.
18. 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
"Fourth Amendment Effective Date"):
(a) The representations and warranties contained herein, in Article VI
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 Fourth Amendment Effective Date shall be correct on and as
of the Fourth 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 Fourth Amendment Effective Date or would result from this
Amendment becoming effective in accordance with its terms.
(b) The Agent shall have received on or before the Fourth Amendment
Effective Date counterparts of this Amendment which bear the signatures of
the Company, the Borrowers and each of the Lenders.
(c) The Agent shall have received on or before the Fourth Amendment
Effective Date a Limited Guaranty made by Xxxxxx Xxxxx in favor of the
Lenders and the Agent in the form of Annex I hereto.
(d) All legal matters incident to this Amendment shall be satisfactory
to the Agent and its special counsel.
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19. 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 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 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.
(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, 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 Fourth Amendment Effective
Date as though made on and as of the Fourth 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 Fourth Amendment Effective Date.
20. 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 Fourth
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
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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.
21. 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.
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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:__________________________________
B P CLOTHING COMPANY, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
XOXO CLOTHING COMPANY, INCORPORATED
By:_____________________________________
Name:___________________________________
Title:__________________________________
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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:__________________________________
ISRAEL DISCOUNT BANK OF NEW YORK
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
PNC BANK, NATIONAL ASSOCIATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
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