Second Restated and Amended Financing Agreement between GMAC Commercial Credit LLC and Bernard Chaus, Inc.

Summary

This agreement amends the existing financing arrangement between GMAC Commercial Credit LLC and Bernard Chaus, Inc., with Chaus Retail, Inc. as guarantor. It updates the repayment schedule for a $15 million term loan, extends the maturity date to March 31, 2003, and revises financial covenants regarding net worth, working capital, and profit/loss limits. The agreement also requires Bernard Chaus, Inc. to pay a $15,000 amendment fee. All other terms of the original financing agreement remain in effect.

EX-10.95 3 file002.txt SECOND RESTATED AND AMENDED FINANCING AGREEMENT [GMAC COMMERCIAL CREDIT LLC LETTERHEAD] December 31, 2001 Bernard Chaus, Inc. 530 Seventh Avenue New York, New York 10018 Attention: Josephine Chaus, Chairwoman of the Board Bernard Chaus, Inc. 800 Secaucus Road Secaucus, New Jersey 07094 Attention: Bart Heminover, Vice President of Finance Ladies/Gentlemen: Reference is made to the Second Restated and Amended Financing Agreement between you and us as successor-in-interest to BNY Financial Corporation, dated as of October 10, 1997, as supplemented and amended (the "Financing Agreement"). Capitalized terms used and not otherwise defined herein have the respective meanings given to them in the Financing Agreement. It is hereby agreed that, effective as of December 31, 2001, the Financing Agreement shall be amended as follows: 1. The second and third sentences of Section 2.2 are restated to read as follows: "The Term Loan shall, with respect to principal, amortize annually as follows, in twenty (20) quarterly installments, commencing as of March 31, 1998 and on the last day of each fiscal quarter thereafter and one final installment on March 31, 2003 in the amount of the then outstanding principal balance, subject to acceleration upon the occurrence and continuance of an Event of Default under this Agreement or termination of this Agreement pursuant to Section 7 hereof: Annual Quarterly Period Amortization Installment ------ ------------ ----------- Fiscal year ending June 30, 1998 $500,000 $250,000 Fiscal year ending June 30, 1999 $1,000,000 $250,000 Fiscal year ending June 30, 2000 $1,000,000 $250,000 Fiscal year ending June 30, 2001 $1,000,000 $250,000 Fiscal year ending June 30, 2002 $1,000,000 $250,000 September 30, 2002 $250,000 $250,000 December 31, 2002 $250,000 $250,000 March 31, 2003 The outstanding balance The Term Loan shall be evidenced by and subject to the terms and conditions set forth in the secured promissory note and the allonge to promissory note attached hereto as Exhibit 2.2." 2. Section 7.1(a) is amended by deleting the date "December 31, 2002" and replacing it with "March 31, 2003". 3. The first sentence of Section 7.3(b) is restated to read as follows: "(b) If termination occurs at any time from October 9, 2000 through and including March 31, 2003, Borrower shall pay Lender $2,200,000." 4. Section 9.1(d) is amended to provide that the Borrower will not permit its Tangible Net Worth to be less than the following amounts as of the following respective dates: "As of December 31, 2001 $3,000,000 As of March 31, 2002 $4,000,000 As of June 30, 2002 $4,000,000" 5. Section 9.1(e) is amended to provide that the Borrower will not permit its Working Capital to be less than the following amounts on the following respective dates: "As of December 31, 2001 $6,000,000 As of March 31, 2002 $7,500,000 As of June 30, 2002 $7,000,000" 6. Section 9.1(g) is amended to provide that the Borrower's (i) Loss (after taxes) will not exceed, and (ii) Profit (after taxes) will not be less than, the respective amounts specified below, as applicable to the indicated Periods under the applicable column below: Maximum Minimum "Period Permitted Loss Permitted Profit ------ -------------- ---------------- Fiscal quarter ended December 31, 2001 $6,900,000 Fiscal quarter ended March 31, 2002 $200,000 Fiscal quarter ended June 30, 2002 $200,000 Fiscal year ended June 30, 2002 $6,000,000" 7. Exhibit 2.2 is amended by adding an Allonge to Promissory Note thereto, a copy of which is attached hereto. Except as specifically amended hereby, the Financing Agreement shall remain unmodified and in full force and effect in accordance with its terms. In consideration of the foregoing, you agree to pay us an amendment fee of $15,000, which fee shall be in addition to any other fees, charges or interest payable by you to us under the 2 Financing Agreement, and payment of which may be effectuated by our charging your account with us. If you are in agreement with the foregoing, please so indicate by signing and returning to us the enclosed copy of this letter. Very truly yours, GMAC COMMERCIAL CREDIT LLC By: /s/ John H. McGowan ----------------------- Name: John H. McGowan Title: Vice President AGREED AND ACCEPTED: - -------------------- BERNARD CHAUS, INC. By: /s/ Barton Heminover -------------------------------- Name: Barton Heminover Title: Vice President of Finance CHAUS RETAIL, INC. (Guarantor) By: /s/ Barton Heminover -------------------------------- Name: Barton Heminover Title: Vice President of Finance Exhibit 2.2 ALLONGE TO PROMISSORY NOTE THIS ALLONGE, effective this 31st day of December, 2001, is to be part of and attached to the Promissory Note of BERNARD CHAUS, INC., a New York corporation (the "Maker") to GMAC COMMERCIAL CREDIT LLC (the "Payee"), dated October 10, 1997 in the original principal amount of $15,000,000 (the "Note"). Effective as of the date of this Allonge, the first sentence of the Note is revised as follows: "FOR VALUE RECEIVED, the undersigned BERNARD CHAUS, INC. (the "Maker") hereby promises to pay to the order of GMAC COMMERCIAL CREDIT LLC (the "Payee"), at 1290 Avenue of the Americas, New York, New York 10104 or at such other place as may be designated in writing by the holder hereof, the principal sum of Fifteen Million Dollars ($15,000,000), in lawful money of the United States of America, in twenty (20) consecutive, equal quarterly installments, each in the amount of $250,000.00, commencing on March 31, 1998 and on the last day of each fiscal quarter thereafter and one final installment on March 31, 2003 in the amount of the then outstanding principal balance." This Allonge shall be deemed to amend and modify the Note, to the extent inconsistent with the Note. Subject to the foregoing, the Note and all of its terms and conditions are ratified and reaffirmed and remain in full force and effect. BERNARD CHAUS, INC. By: /s/ Nicholas DiPaolo -------------------------------------- Title: Vice Chairman of the Board, and Chief Operating Officer ATTEST: /s/ Barton Heminover - ------------------------------- Secretary [CORPORATE SEAL] Accepted and Agreed: GMAC COMMERCIAL CREDIT LLC By: /s/ John H. McGowan ---------------------------- Title: Vice President