AMENDED & RESTATED FINANCING
AGREEMENT
This Amendment No. 3 to Amended &
Restated Financing Agreement (this “ Amendment No. 3
”) is entered into as of August 31, 2009, by and among
G-III Leather Fashions, Inc., a New York corporation (“
G-III Inc. ”), J. Percy for Marvin Richards, Ltd., a
New York corporation (“ JPMR ”), CK Outerwear,
LLC, a New York limited liability company (“ CKO
”), A. Marc & Co., Inc., a New York corporation (“
AMC ”), Andrew & Suzanne Company Inc., a New York
corporation (“ A&S ”), AM Retail Group,
Inc., a Delaware corporation (“ AMRGI ”, and
together with G-III Inc., JPMR, CKO, AMC and A&S, individually
a “ Company ” and collectively, the “
Companies ”), JPMorgan Chase Bank N.A. (“
JPMC ”), The CIT Group/Commercial Services, Inc., a
New York corporation (“ CIT ”) (JPMC, CIT and
the other financial institutions which are now or hereafter become
a party to the Financing Agreement (as hereafter defined) each a
“ Lender ” and collectively, “
Lenders ”), and JPMC, as successor agent to CIT, as
agent for Lenders (JPMC, in such capacity, “ Agent
”).
The Companies, Agent and Lenders are parties to
an Amended and Restated Financing Agreement, dated as of
April 3, 2008 (as amended by Joinder and Amendment No. 1
to Amended and Restated Financing Agreement dated as of
July 21, 2008, Amendment No. 2 to Amended and Restated
Financing Agreement dated as of April 20, 2009 and as further
amended, restated, modified and/or supplemented from time to time,
the “ Financing Agreement ”) pursuant to which
Agent and Lenders provide the Companies with certain financial
accommodations.
The Companies require the issuance of certain
Letters of Credit. One of the Lenders, JPMC, is willing to issue
such Letters of Credit, on the condition that it be the primary
Issuing Bank for the Companies under the terms of the Financing
Agreement. Agent and Lenders are willing to amend certain of the
terms of the Financing Agreement as hereinafter 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 the Companies by Agent and Lenders, 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. Amendments to Financing
Agreement . Subject to satisfaction of the conditions precedent
set forth in Section 3 below, the Financing Agreement is
hereby amended as follows:
(a) Section 1.1 of the Financing
Agreement is hereby amended by adding the following definitions in
their appropriate alphabetical order:
Letter of
Credit Disbursement shall mean a payment made by the Primary Issuing
Bank pursuant to a Letter of Credit issued by the Primary Issuing
Bank.
Primary
Issuing Bank shall
mean JPMorgan Chase Bank, N.A. as the primary Issuing Bank issuing
Letters of Credit for the Companies.
Primary
Issuing Bank Letters of Credit shall mean all Letters of Credit issued by
Primary Issuing Bank pursuant to Section 5A of this Financing
Agreement.
(b) Section 1.1 of the Financing
Agreement is hereby further amended by restating the definitions of
the terms “Applicable Margin,” “Issuing
Bank” and “Letters of Credit” to provide as
follows:
Applicable Margin shall mean, with respect to (a) the
Revolving Loans, plus 0.75% for Chase Bank Rate Loans and 3.00% for
LIBOR Loans, (b) standby Letters of Credit, 1.50%,
(c) documentary Letters of Credit, 0.125%, or (d) Bankers
Acceptances, the discount rate of JPMorgan Chase Bank, N.A. plus
2.50%.
Issuing
Bank shall mean, as
applicable, Primary Issuing Bank or any other Lender issuing a
Letter of Credit for a Company, a Bankers Acceptance, a Steamship
Guaranty or an Airway Release with respect to such Letter of
Credit.
Letters
of Credit shall mean
all Primary Issuing Bank Letters of Credit and any and all other
standby or documentary letters of credit issued for or on behalf of
a Company with the assistance of the Lenders (acting through the
Agent) by an Issuing Bank in accordance with Section 5
hereof. Without limiting the foregoing, as used herein the term
Letters of Credit shall include the Existing Letters of
Credit.
(c) Section 1.1 of the Financing
Agreement is hereby further amended by restating clause (a) of the
definition of the term Obligations to provide as
follows:
(a) all
loans, advances and other extensions of credit made by the Lenders,
or the Agent for the account of the Lenders, to the Companies (or
any of them), or to others for the Companies’ account
(including, without limitation, all Revolving Loans, all Letters of
Credit (including, without limitation, all Indebtedness due and
owing Primary Issuing Bank by the Companies in connection with
Letters of Credit, including all reimbursement obligations and fees
and expenses (including legal expenses) incurred in connection
therewith), Bankers Acceptances, Steamship Guarantees and Airway
Releases and all obligations of the Agent under Letter of Credit
Guaranties);
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(d) Section 5 of the Financing
Agreement is hereby amended by inserting a new Section 5A,
entitled “ Primary Issuing Bank Letters of Credit
”, immediately after paragraph 5.8, to provide as
follows:
5A.1. Subject
to the terms and conditions set forth herein, including without
limitation the forgoing provisions of Section 5, as
applicable, any of the Companies may request the issuance of
Letters of Credit for its own account from the Primary Issuing
Bank, or, in the event that the Primary Issuing Bank declines such
request and/or the Companies at any time elect to utilize another
Lender for the purpose of issuing any Letter of Credit, such other
Lender, in each case in a form reasonably acceptable to the Agent
and the applicable Issuing Bank. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other
agreement submitted by the Companies to, or entered into by the
Companies with, the Issuing Bank relating to Letters of Credit, the
terms and conditions of this Agreement shall control.
5A.2. If
requested by the Issuing Bank, the Company requesting the Letter of
Credit also shall submit a letter of credit application on the
Issuing Bank’s standard form in connection with the request
for the issuance of the Letter of Credit.
5A.3. By the
issuance of a Letter of Credit (or any amendment to a Letter of
Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in the applicable Letter of
Credit equal to such Lender’s applicable Pro Rata Share of
the aggregate amount available to be drawn under such Letter of
Credit (the “Letter of Credit Exposure”). In
consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Issuing
Bank, such Lender’s applicable Pro Rata Share of each Letter
of Credit Disbursement made by the Issuing Bank and not reimbursed
by the Companies on the date due as provided in paragraph 5A.4 of
this Section, or of any reimbursement payment required to be
refunded to the Companies for any reason. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit issued by the
Issuing Bank is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment,
renewal or extension of the applicable Letter of Credit or the
occurrence and continuance of a Default or Event of Default or
reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
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5A.4. If the
Issuing Bank shall make any Letter of Credit Disbursement in
respect of a Letter of Credit, the Companies shall reimburse such
Letter of Credit Disbursement by paying to the Issuing Bank an
amount equal to such Letter of Credit Disbursement not later than
11:00 a.m., New York time, on the first Business Day following
the date that the Companies receive notice of such Letter of Credit
Disbursement. If the Companies fail to make such payment when due,
the Issuing Bank shall promptly notify Agent, which shall promptly
notify each Lender of the applicable Letter of Credit Disbursement,
the payment then due from the Companies in respect thereof and such
Lender’s applicable Pro Rata Share thereof. Promptly
following receipt of such notice, each Lender shall pay to the
Agent, for the benefit of the Issuing Bank, its applicable Pro Rata
Share of the payment then due from the Companies, in the same
manner as provided in Section 3.1(d) with respect to Revolving
Loans made by such Lender (and Section 3.1(d) shall apply,
mutatis mutandis , to the payment obligations of the
Lenders), and the Agent shall promptly pay to the Issuing Bank the
amounts so received by it from the Lenders. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Bank for
any Letter of Credit Disbursement (other than the funding of
Revolving Loans as contemplated above) shall not constitute a Loan
and shall not relieve the Companies of their obligation to
reimburse such Letter of Credit Disbursement.
5A.5. The
Companies’ obligation to reimburse the Letter of Credit
Disbursements as provided in paragraph 5A.4 shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or
other document presented under any Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect,
(iii) payment by the Issuing Bank under a Letter of
Cred
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