exv10w1






Exhibit 10.1




AMENDMENT NO. 1

TO

AMENDED AND RESTATED FACTORING AND FINANCING AGREEMENT




     AMENDMENT NO. 1 TO AMENDED AND RESTATED FACTORING AND FINANCING AGREEMENT (this
“Amendment”) is entered into as of November 5, 2009 by and among CYNTHIA STEFFE
ACQUISITION, LLC, a New York limited liability company (“CS Acquisition”), S.L. DANIELLE
ACQUISITION, LLC, a New York limited liability company (“Danielle Acquisition”), BERNARD
CHAUS, INC., a New York corporation (“Chaus” and together with CS Acquisition and Danielle
Acquisition, individually, a “Company” and collectively, the “Companies”) and THE CIT
GROUP/COMMERCIAL SERVICES, INC. (“Lender”).



BACKGROUND




     The Companies and Lender are parties to an Amended and Restated Factoring and Financing
Agreement dated as of September 10, 2009 (as amended, modified, restated or supplemented from time
to time, the “Financing Agreement”) pursuant to which Lender provides financial
accommodations to the Companies.



     The Companies have requested that Lender amend the Financing Agreement as hereinafter provided
and Lender is willing to do so on the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of any Revolving Loans or other grants of credit heretofore
or hereafter made to or for the account of the Companies by Lender, 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) The definition of the term “Total Liabilities” set forth in Section 1 of the Financing
Agreement is hereby amended and restated in its entirety to read as follows:





Total Liabilities shall mean total liabilities determined in accordance with GAAP, on a
basis consistent with the latest audited consolidated financial statements of any Company and
its Subsidiaries, minus (i) the unamortized portion of the $4,000,000 supply premium
paid to the Borrowing Agent by China Ting Group Holdings Limited pursuant to that Exclusive
Supply Agreement dated July 24, 2009, as set forth on the balance sheet as current or long term
deferred income and (ii) the unrestricted cash on deposit in banks, as set forth on the balance
sheet as cash.



     3. Condition of Effectiveness. This Amendment shall become effective upon
satisfaction of each of the following conditions precedent (the date upon which all such conditions
precedent shall be satisfied, the “Effective Date”):



 









 





          (a) Lender shall have received four (4) copies of this Amendment, executed by the Companies
and acknowledged by the Guarantors.




     4. Representations and Warranties. The Companies hereby represent and warrant as
follows:



          (a) This Amendment and the Financing Agreement, as amended hereby, constitute legal, valid and
binding obligations of the Companies and are enforceable against each Company in accordance with
their respective terms.




          (b) Upon the Effective Date, the Companies hereby reaffirm all covenants, representations and
warranties made in the Financing Agreement to the extent the same are not amended hereby and agree
that all such covenants, representations and warranties shall be deemed to have been remade as of
the Effective Date.




          (c) No Event of Default or Default has occurred and is continuing or would exist after giving
effect to this Amendment.




          (d) The Companies have no defense, counterclaim or offset with respect to the Financing
Agreement.




     5. Effect on the Financing Agreement.



          (a) Upon the effectiveness of Section 2 hereof, each reference in the Financing
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean
and be a reference to the Financing Agreement as amended hereby.




          (b) Except as specifically amended herein, the Financing Agreement, and all other documents,
instruments and agreements executed and/or delivered in connection therewith, shall remain in full
force and effect, and are hereby ratified and confirmed.




          (c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of Lender, nor constitute a waiver of any provision of the Financing
Agreement, or any other documents, instruments or agreements executed and/or delivered under or in
connection therewith.




     6. Effect and Construction of Agreement. Except as expressly provided herein, the
Loan Documents shall remain in full force and effect in accordance with their respective terms, and
this Amendment shall not be construed to:



          (a) impair the validity, perfection or priority of any Lien securing the Obligations; or




          (b) waive or impair any rights, powers or remedies of Lender under, or constitute a waiver of,
any provision of the Loan Documents.




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     7. Presumptions. The Companies acknowledge that they have consulted with and have
been advised by counsel and such other experts and advisors as they have deemed necessary in
connection with the negotiation, execution and delivery of this Amendment and has participated in
the drafting hereof. Therefore, this Amendment shall be construed without regard to any
presumption or rule requiring that it be construed against any one party causing this Agreement or
any part hereof to be drafted.



     8. Entire Agreement. This Amendment sets forth the entire agreement among the parties
hereto with respect to the subject matter hereof. The Companies have not relied on any agreements,
representations, or warranties of Lender, except as specifically set forth herein. Any promises,
representations, warranties or guarantees not herein contained and hereinafter made shall have no
force and effect unless in writing, signed by each party hereto. The Companies acknowledge that
they are not relying upon oral representations or statements inconsistent with the terms and
provisions of this Amendment.



     9. Further Assurances. The Companies shall execute such other and further documents
and instruments as Lender may reasonably request to implement the provisions of this Amendment and
to perfect and protect the liens and security interests created by or agreed upon in the Loan
Documents.



     10. Benefit of Agreement. This Amendment shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective permitted successors and assigns.
No other person or entity shall be entitled to claim any right or benefit hereunder, including,
without limitation, any third-party beneficiary of this Amendment.



     11. Severability. The provisions of this Amendment are intended to be severable. If
any provisions of this Amendment shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or enforceability without in any manner affecting the validity or enforceability of such
provision in any other jurisdiction or the remaining provisions of this Amendment in any
jurisdiction.



     12. Governing Law, Jurisdiction, Venue. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applied to contracts to be performed
wholly within the State of New York. Any judicial proceeding brought by or against any Company
with respect to this Amendment or any related agreement may be brought in any court of competent
jurisdiction in the State of New York, County of New York, United States of America, and, by
execution and delivery of this Amendment, each Company accepts for itself and in connection with
its properties, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this
Amendment. Nothing herein shall affect the right to serve process in any manner permitted by law
or shall limit the right of Lender to bring proceedings against any Company in the courts of any
other jurisdiction. Each Company waives any objection to jurisdiction and venue of any action
instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or
based upon forum non conveniens. Any judicial proceeding by any Company against Lender involving,
directly or indirectly, any matter or claim in any way arising out of, related to or connected with
this Amendment or any related



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agreement, shall be brought only in a federal or state court located in the State of New York,
County of New York.




     13. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS
AMENDMENT, THE LOAN DOCUMENTS OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, THE LOAN DOCUMENTS OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY. IN ADDITION, EACH COMPANY WAIVES THE RIGHT TO CLAIM OR RECOVER IN ANY SUCH SUIT,
ACTION OR PROCEEDING ANY DAMAGES OTHER THAN OR IN ADDITION TO ACTUAL DAMAGES.



     14. Counterparts; Facsimile. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of which when taken
together shall constitute one and the same agreement. Any signature delivered by a party by
facsimile or “pdf” transmission shall be deemed to be an original signature hereto.



     15. Survival. All representations, warranties, covenants, agreements, undertakings,
waivers and releases of the Companies contained herein shall survive the termination of the
Financing Agreement and payment in full of the Obligations under the Loan Documents.



     16. Amendment. No amendment, modification, rescission, waiver or release of any
provision of this Amendment shall be effective unless the same shall be in writing and signed by
the Companies and Lender. This Amendment shall constitute a Loan Document.



     17. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.



[Signature page follows this page]



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     IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first written
above.



	 	 	 	 	 
	 	THE CIT GROUP/COMMERCIAL SERVICES 

INC., as Lender


 	 
	 	By:  	/s/ Geoffrey Goldstein
 	 
	 	 	Name:  	Geoffrey Goldstein 	 
	 	 	Title:  	Vice President 	 
	 
	 	BERNARD CHAUS, INC.


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	CYNTHIA STEFFE ACQUISITION, LLC


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	S.L. DANIELLE ACQUISITION, LLC


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 


Signature Page to Amendment No. 1 to the A&R Factoring and Financing Agreement




 









 








GUARANTOR ACKNOWLEDGEMENT



Each of the undersigned hereby acknowledges and agrees that, notwithstanding the execution of the
foregoing Amendment No. 1 to Amended and Restated Factoring and Financing Agreement, the
consummation of the amendments and transactions contemplated thereby, (i) all of the terms and
conditions, representations and covenants contained in the undersigned’s respective Guaranties and
Security Agreements are and shall remain in full force and effect in accordance with their
respective terms and (ii) the security interests and liens theretofore granted, pledged and/or
assigned under the Security Agreement as security for the Obligations shall not be impaired,
limited or affected in any manner whatsoever by reason of Amendment No. 1 to Amended and Restated
Factoring and Financing Agreement.




	 	 	 	 	 
	 	BERNARD CHAUS INTERNATIONAL (HONG

KONG), INC.


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	BERNARD CHAUS INTERNATIONAL 

(KOREA), INC


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	BERNARD CHAUS INTERNATIONAL 

(TAIWAN), INC


 	 
	 	By:  	/s/ Barton Heminover
 	 
	 	 	Name:  	Barton Heminover 	 
	 	 	Title:  	Chief Financial Officer 	 
	 


Signature Page to the Acknowledgement to Amendment No. 1 to the A&R Factoring and Financing Agreement