CHAUS BERNARD INC
JOINDER AND AMENDMENT NO. 1 TO FINANCING AGREEMENT
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<TYPE>EX-10.102
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<FILENAME>file002.txt
<DESCRIPTION>JOINDER AND AMENDMENT NO. 1 TO FINANCING AGREEMENT
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                                     JOINDER

                               AND AMENDMENT NO. 1

                                       TO

                               FINANCING AGREEMENT

     JOINDER AND AMENDMENT NO. 1 TO FINANCING AGREEMENT (this "Joinder
Agreement") is entered into as of November 27, 2002, by and among S.L. DANIELLE
ACQUISITION, LLC, a New York limited liability company ("Danielle Acquisition"),
BERNARD CHAUS, INC. a New York corporation ("Chaus") and THE CIT
GROUP/COMMERCIAL SERVICES, INC. ("CIT") as agent (in such capacity, "Agent") for
itself and the various other financial institutions (together with CIT,
collectively, the "Lenders") named in or which hereafter become a party to the
Financing Agreement (as hereafter defined).

                                   BACKGROUND

     Chaus, Agent and Lenders are parties to a Financing Agreement dated as of
September 27, 2002 (as amended, modified, restated or supplemented from time to
time, the "Financing Agreement") pursuant to which Agent and Lenders provide
financial accommodations to Chaus.

     Pursuant to the terms of an Asset Purchase Agreement, dated as of November
27, 2002 between Danielle Acquisition and S.L. Danielle, Inc. ("Seller"), a New
York corporation, Danielle Acquisition, a wholly-owned subsidiary of Chaus, is
purchasing substantially all of the assets and assuming none of the liabilities
(other than as set forth therein) of Seller.

     Chaus has requested that Agent and Lenders consent to the addition of
Danielle Acquisition as a party to all Obligations under the Financing Agreement
and provide financial accommodations to Danielle Acquisition thereunder, and
Agent and Lenders have agreed to do so on the terms and conditions set forth
herein.

     NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Chaus 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.  Joinder Agreement.

         (a) As of the date hereof, Danielle Acquisition is hereby added as a
party to all Obligations under the Financing Agreement, and all references to
"Company" hereunder and thereunder shall (except as otherwise provided herein)
hereafter be deemed to

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include, severally and collectively, as the context may require, Chaus and
Danielle Acquisition. For the avoidance of doubt, Danielle Acquisition shall not
have any several obligations under Sections 7.8 or 7.10 of the Financing
Agreement. As of the date hereof, and only in those cases in which the phrase
the "Company and its Subsidiaries" is used in the Financing Agreement, the term
"Company" shall be deemed to mean "Chaus" and the term "Subsidiaries" shall be
deemed to include "Danielle Acquisition."

         (b) Danielle Acquisition hereby adopts the Financing Agreement, assumes
in full, and acknowledges that it is jointly and severally liable for, the
payment, discharge, satisfaction and performance of all Obligations under the
Financing Agreement and the Loan Documents as if it were an original signatory
thereunder. Without limiting the generality of the foregoing, in order to secure
the prompt payment and performance of the Obligations, Danielle Acquisition
hereby assigns, pledges and grants to Agent for its benefit and for the ratable
benefit of Lenders a continuing security interest in and to all Collateral (as
such term is defined in the Financing Agreement) owned by Danielle Acquisition
(the "Danielle Acquisition Collateral"), whether now owned or existing or
hereafter acquired or arising and wherever located. For avoidance of doubt, in
no event shall Collateral include the accounts receivable of Seller (which Chaus
is assisting Seller with collecting) arising from all goods shipped prior to
September 1, 2002, as well as those certain goods shipped between September 1,
2002 and September 10, 2002, which such accounts receivable are in amount of
less than $5,000, including reversals of any chargebacks, allowances or
deductions previously taken by any customers with respect to the receivables
referred to in this clause.

         (c) As of the date hereof, Exhibit A and Exhibit B to this Joinder
Agreement shall replace Exhibits A and B to the Financing Agreement in their
entirety.

     3.  Amendments to Financing Agreement.

         (a) The following defined term is added in its appropriate alphabetical
order:

              "BORROWING AGENT" shall mean Bernard Chaus, Inc.

         (b) The following defined terms are amended in their entirety to
provide as follows:

              "FACTORING AGREEMENT" shall mean, severally and collectively (i)
              that certain Factoring Agreement dated as of September 27, 2002 by
              and between the Company and CIT, as amended by Amendment No. 1 to
              such Factoring Agreement dated the date hereof and (ii) that
              certain Factoring Agreement dated as of November 27, 2002 by and
              between S.L. Danielle Acquisition, LLC and CIT, as such agreements
              may be amended, modified and supplemented from time to time.

              "GUARANTORS" shall mean (i) Bernard Chaus International (Hong
              Kong), Inc., a Delaware corporation, (ii) Bernard Chaus
              International (Korea),



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              Inc., a Delaware corporation, (iii) Bernard Chaus International
              (Taiwan), Inc., a Delaware corporation and (iv) Chaus Retail,
              Inc., a New Jersey corporation.

              "PERMITTED INDEBTEDNESS" (a) current Indebtedness maturing in less
              than one year and incurred in the ordinary course of business for
              raw materials, supplies, equipment, services, Taxes or labor; (b)
              the Indebtedness secured by Purchase Money Liens; (c) Indebtedness
              arising under the Letters of Credit and this Financing Agreement;
              (d) deferred Taxes and other expenses incurred in the ordinary
              course of business; (e) the Indebtedness arising by and between
              the Company and the Guarantors so long as the aggregate amount of
              such Indebtedness does not exceed $5,000,000 per annum and such
              Indebtedness is used solely to cover operating expenses and /or
              expenses incurred in the ordinary course of business, (f) the
              Indebtedness arising by and between the Company and Danielle
              Acquisition, and (g) other Indebtedness existing on the date of
              execution of this Financing Agreement and listed in the most
              recent financial statement delivered to the Agent and the Lenders
              or otherwise disclosed to the Agent and the Lenders in writing
              prior to the Closing Date.

         (c) Section 7.9(e) is amended in its entirety to provide as follows:

              "(e) Assume, guarantee, endorse, or otherwise become liable upon
              the obligations of any person, firm, entity or corporation, except
              (i) by the endorsement of negotiable instruments for deposit or
              collection or similar transactions in the ordinary course of
              business or (ii) with respect to the guaranty of the Company of
              the Obligations of Danielle Acquisition to S.L. Danielle, Inc."

         (d) Section 7.14 is amended in its entirety to provide as follows:

              "7.14. The Company hereby (a) represents that each of Bernard
              Chaus International (Philippines), Inc. and Chaus Specialists,
              Inc. are inactive corporations and have no material assets (the
              "Inactive Subsidiaries"), and (b) agrees to dissolve the corporate
              existence of each of the Inactive Subsidiaries by not later than
              December 24, 2002."

         (e) Section 7.15 is amended in its entirety to provide as follows:

              "7.15. The Company shall maintain life insurance on Josephine
              Chaus (the "JC Life Insurance Policy") in the amount of not less
              than $18,000,000 and shall assign the JC Life Insurance Policy to
              the Agent (in form and substance satisfactory to the Agent) all
              rights under the Life Insurance Policy as additional collateral
              for the Obligations (the "JC Life Insurance Assignments"),
              provided that the JC Life Insurance Assignment


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              shall be delivered to Agent not later than December 10, 2002. In
              the event of a collection upon the life insurance policy, the
              proceeds thereof up to $18,000,000 shall be applied to the
              Obligations in such order as Agent shall determine in its
              reasonable discretion. Should the Agent collect more than
              $18,000,000 with respect to the JC Insurance Policy, the Agent and
              Lenders shall return to the Company that portion of the proceeds
              which exceeds $18,000,000."

         (f) A new Section is hereby added to the Financing Agreement as Section
15 in the appropriate sequential order to provide as follows:

              "SECTION 15. BORROWING AGENT

                   15.1. (a) The Company hereby irrevocably designates Borrowing
              Agent to be its attorney and agent and in such capacity to borrow,
              sign and endorse notes, and execute and deliver all instruments,
              documents, writings and further assurances now or hereafter
              required hereunder, on behalf of the Company, and hereby
              authorizes Agent to pay over or credit all loan proceeds hereunder
              in accordance with the request of Borrowing Agent.

                   (b) The handling of this credit facility as a co-borrowing
              facility with a borrowing agent in the manner set forth in this
              Agreement is solely as an accommodation to the Company and at its
              request. Neither Agent nor any Lender shall incur liability to the
              Company as a result thereof except due to willful misconduct or
              gross (not mere) negligence by the Agent or Lender. To induce
              Agent and Lenders to do so and in consideration thereof, the
              Company hereby indemnifies Agent and each Lender and holds Agent
              and each Lender harmless from and against any and all liabilities,
              expenses, losses, damages and claims of damage or injury asserted
              against Agent or any Lender by any Person arising from or incurred
              by reason of the handling of the financing arrangements of the
              Company as provided in this Section 15.1, reliance by Agent or any
              Lender on any request or instruction from Borrowing Agent or any
              other action taken by Agent or any Lender with respect to this
              Section 15 except due to willful misconduct or gross (not mere)
              negligence by the indemnified party.

                   (c) All Obligations shall be joint and several, and the
              Company shall make payment upon the maturity of the Obligations by
              acceleration or otherwise, and such obligation and liability on
              the part of the Company shall in no way be affected by any
              extensions, renewals and forbearance granted to Agent or any
              Lender to the Company, failure of Agent or any Lender to give the
              Company notice of borrowing or any other notice, any failure of
              Agent or any Lender to pursue or preserve its rights against the


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              Company, the release by Agent or any Lender of any Collateral now
              or thereafter acquired from the Company, and such agreement by the
              Company to pay upon any notice issued pursuant thereto is
              unconditional and unaffected by prior recourse by Agent or any
              Lender to the Company or any Collateral for the Company's
              Obligations or the lack thereof. The Company waives all suretyship
              defenses with respect to its relationship to Danielle Acquisition.

                   15.2. Bernard Chaus, Inc. ("Chaus") and S.L. Danielle
              Acquisition, LLC ("Danielle Acquisition") expressly waive any and
              all rights of subrogation, reimbursement, indemnity, exoneration,
              contribution of any other claim which either Chaus or Danielle
              Acquisition, as the case may be, may now or hereafter have against
              either Danielle Acquisition or Chaus, as the case may be, directly
              or contingently liable for the Obligations hereunder, or against
              or with respect to either Danielle Acquisition or Chaus' property
              (including, without limitation, any property which is Collateral
              for the Obligations), as the case may be, arising from the
              existence or performance of this Agreement, until termination of
              this Agreement and repayment in full of the Obligations."

     4.  Conditions of Effectiveness.  This Joinder Agreement shall become
effective as of the date hereof upon satisfaction of the following conditions:

         (a) Agent's receipt of five (5) copies of this Joinder Agreement duly
     executed by the Company and Agent;

         (b) Agent's receipt of the Amended and Restated Term Loan Promissory
     Note and Amended and Restated Revolving Credit Note, which have been
     executed by the Company in the form of Exhibit A and Exhibit B attached
     hereto;

         (c) Agent shall have received a copy of the resolutions in form and
     substance reasonably satisfactory to Agent, of the Sole Member of Danielle
     Acquisition authorizing (1) the execution, delivery and performance of this
     Joinder Agreement, (2) the execution, delivery and performance of the
     Factoring Agreement dated the date hereof between Danielle Acquisition and
     CIT and (3) the granting by Danielle Acquisition of the Liens upon the
     Danielle Acquisition Collateral, certified by the Secretary or an Assistant
     Secretary of Danielle Acquisition, as of the date of this Joinder
     Agreement; and, such certificate shall state that the resolutions thereby
     certified have not been amended, modified, revoked or rescinded as of the
     date of such certificate;

         (d) Agent shall have received a copy of the Articles of Organization
     and Operating Agreement of Danielle Acquisition, and all amendments
     thereto, such Articles of Organization shall have been certified by the
     Secretary of State or other appropriate official of its jurisdiction of
     formation;

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         (e) Agent shall have received good standing certificates for Danielle
     Acquisition dated not more than thirty (30) days prior to the date of this
     Joinder Agreement, issued by the Secretary of State or other appropriate
     official of Danielle Acquisition's jurisdiction of formation;

         (f) Agent shall have received a Factoring Agreement executed by
     Danielle Acquisition, and all agreements, instruments and documents
     executed in connection with such Factoring Agreement;

         (g) Agent shall have received (i) a Stock Pledge Agreement executed by
     Chaus in regards to Bernard Chaus International (Taiwan), Inc., together
     with stock certificates and stock powers duly executed in blank and (ii) a
     Membership Interest Pledge Agreement executed by Chaus in regards to
     Danielle Acquisition;

         (h) Agent shall have received (i) a Security Agreement - Accounts,
     Inventory, General Intangibles, Equipment and Other Collateral and (ii) a
     Guaranty, both executed by Bernard Chaus International (Taiwan), Inc.;

         (i) Agent shall have received in form and substance satisfactory to
     Agent, updated Certificates of Insurance which add Danielle Acquisition as
     an insured party and cover the Danielle Acquisition Collateral, wheresoever
     located and in amounts and on terms acceptable to Agent and updated Loss
     Payee Policy Endorsements naming Agent as an additional insured;

         (j) Agent shall have received the executed opinion of counsel from
     Swidler Berlin Shereff Friedman LLP in form and substance satisfactory to
     Agent, which shall cover such matters incident to the transactions
     contemplated by this Joinder Agreement and the Financing Agreement, as
     amended;

         (k) Agent shall have received, in form and substance satisfactory to
     Agent, executed copies of the Asset Purchase Agreement, the Consulting
     Agreement, the documentation with respect to the asset purchase of Seller,
     and all agreements, instruments and documents executed in connection with
     each of the foregoing;

         (l) Each document (including, without limitation, any Uniform
     Commercial Code financing statement) required by this Joinder Agreement or
     under law or reasonably requested by Agent to be filed, registered or
     recorded in order to create, in favor of Agent, a perfected security
     interest in or lien upon the Danielle Acquisition Collateral shall have
     been properly filed, registered or recorded in each jurisdiction in which
     the filing, registration or recordation thereof is so required or
     requested, and Agent shall have received an acknowledgment copy, or other
     evidence satisfactory to it, of each such filing, registration or
     recordation and satisfactory evidence of the payment of any necessary fee,
     tax or expense relating thereto;

         (m) Agent shall have received an executed copy of the Payoff Letter
     between the Company and The Merchants Bank of New York; and


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         (n) Agent shall have received such other certificates, instruments,
     documents and agreements as may reasonably be required by Agent or its
     counsel, each of which shall be in form and substance satisfactory to Agent
     and its counsel.

     5.  Representations and Warranties.  The Company hereby represents and
warrant as follows:

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

         (b) The Company hereby reaffirms all covenants, representations and
     warranties made in the Financing Agreement as amended herein are true and
     correct in all material respects and agrees that all such covenants,
     representations and warranties, as applicable, shall be deemed to have been
     remade as of the effective date of this Joinder Agreement (except to the
     extent of changes resulting from transactions contemplated or permitted by
     the Financing Agreement and the other Loan Documents and except to the
     extent that such representations and warranties relate expressly to an
     earlier date).

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

         (d) As of the date hereof, the Company has no defense, counterclaim or
     offset with respect to the Financing Agreement.

     6.  Additional Representations and Warranties of Danielle Acquisition.
Danielle Acquisition hereby further represents and warrants as follows:

         (a) Upon the effectiveness of this Joinder Agreement, all covenants,
     representations and warranties made in the Financing Agreement shall be
     deemed to have been made by Danielle Acquisition as of the effective date
     of this Joinder Agreement.

         (b) Except as set forth on Schedule 6(b) hereto, each of the
     representations and warranties set forth in Section 7 of the Financing
     Agreement is true and correct in all material respects with respect to
     Danielle Acquisition as of the date hereof (except to the extent of changes
     resulting from transactions contemplated or permitted by the Financing
     Agreement and the other Loan Documents and except to the extent that such
     representations and warranties relate expressly to an earlier date);

         (c) Danielle Acquisition is duly organized and in good standing under
     the laws of the State of New York and is qualified to do business and is in
     good standing in such states which constitute all states in which
     qualification and good standing are necessary for Danielle Acquisition to
     conduct its business and own its property and where the failure to so
     qualify would have a material adverse effect on Danielle Acquisition or its
     business. Danielle Acquisition has delivered to Agent true and


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     complete copies of its organizational documents and will promptly notify
     Agent of any amendments or changes thereto.

     7.  Governing Law.  This Joinder Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York without regard to any conflicts of laws principles thereto that
would call for the application of the laws of any other jurisdiction.

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

     9.  Counterparts, Facsimile Signatures.  This Joinder Agreement may be
executed by the parties hereto in one or more counterparts, each of which shall
be deemed an original and all of which taken together shall be deemed to
constitute one and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature hereto.

     10.  Effect on the Financing Agreement.

         (a) Upon the effectiveness of this Agreement, 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
modified hereby.

         (b) Except as specifically modified hereby, 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 Joinder Agreement
shall not operate as a waiver of any right, power or remedy of Agent or any
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.

         (d) The security interests and liens and rights securing payment of the
Obligations are hereby ratified and confirmed by the Company in all respects.



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


                                       S.L. DANIELLE ACQUISITION, LLC


                                       By:  /s/ Nicholas P. DiPaolo
                                           ------------------------------------


                                       BERNARD CHAUS, INC.


                                       By:  /s/ Nicholas P. DiPaolo
                                           -------------------------------------


                                       THE CIT GROUP/COMMERCIAL SERVICES, INC.,
                                       as Agent and a Lender


                                       By: /s/ John Szwalek
                                          --------------------------------------


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