FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This First Amendment to Amended and Restated Loan and Security
Agreement is made as of this 29th day of September, 1998 by and between
BankBoston Retail Finance Inc. (in such capacity, the "Agent"), as
Agent for the Lenders party to a certain Amended and Restated Loan and
Security Agreement dated as of June 4, 1998,
the Lenders party thereto, and
Designs, Inc. (the "Borrower"), a Delaware corporation with its
principal executive offices at 66 B Street, Needham, Massachusetts
02194
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
WHEREAS, on June 4, 1998, the Agent, the Lenders and the Borrower
entered in a certain Amended and Restated Loan and Security Agreement (the
"Agreement"); and
WHEREAS, the Borrower desires to acquire twenty-five retail store
leases and certain personal property associated therewith from Levi's Only
Stores, Inc., which acquisition requires the consent of the Agent and the
Lenders pursuant to Section 4-19 of the Agreement; and
WHEREAS, the Agent, the Lenders and the Borrower desire to consent to
the aforesaid acquisition and to modify certain of the provisions of the
Agreement as set forth herein.
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders and
the Borrowers as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the
Agreement.
2. Amendments to Article 1. The provisions of Article 1 of the
Agreement are hereby amended
(a) by adding the following new definitions:
"Acceptable LOS Inventory": Inventory acquired by the
Borrower upon consummation of the LOS Acquisition which
otherwise constitutes Acceptable Inventory.
"LOS Acquisition": The acquisition by the Borrower of
twenty-five retail store leases and certain personal
property associated therewith from Levi's Only
Stores, Inc., for an aggregate price not to exceed
$12,000,000.00 and otherwise on terms and conditions
acceptable to the Agent.
"LOS Inventory Advance Rate": Forty-five percent (45%) or
such other percentage as the Agent may hereafter establish.
"LOS Inventory": Inventory acquired by the Borrower upon
the consummation of the LOS Acquisition.
(b) by deleting the definition of "Commitment" in its entirety
and substituting the following in its stead:
"Commitment": Subject to Section 2-20, as follows:
---------------- ------------------ ---------------------
Lender Dollar Commitment Commitment Percentage
---------------- ------------------ ---------------------
BankBoston Retail $35,000,000.00 70%
Finance Inc.
----------------- ------------------ ---------------------
Norwest Business $15,000,000.00 30%
Credit, Inc.
----------------- ------------------ ---------------------
3. Amendments to Article 2 The provisions of Section 2-1 of the
Agreement are hereby amended by adding the following at the
end of Section 2-1(b)(ii)(A) thereof:
,plus unless and until the Agent notifies the
Borrower that LOS Inventory is deemed Acceptable
Inventory, the LOS Inventory Advance Rate of the Cost
of Acceptable LOS Inventory.
4. Amendments to Article 4. The provisions of Article 4 of the Loan
Agreement are hereby amended by
(a) effective upon consummation of the LOS Acquisition, deleting
the number "$10,000,000.00" appearing in the third line of
Section 4-18(b)and substituting the number "$5,000,000.00"
in its stead.
(b) effective upon consummation of the LOS Acquisition, deleting
the number "$5,000,000.00" appearing in the second proviso
to Section 4-18(b)and substituting the number
"$2,500,000.00" in its stead.
(c) effective upon consummation of the LOS Acquisition, deleting
the number "Fifteen Million Dollars ($15,000,000.00)"
appearing in Section 4-19(b) and substituting the number
"Nine Million Dollars ($9,000,000.00)" in its stead.
(d) effective upon consummation of the LOS Acquisition, deleting
the number "Ten Million Dollars ($10,000,000.00)" appearing
in Section 4-19(c) and substituting the number "Five
Million Dollars ($5,000,000.00)" in its stead.
(e) effective upon consummation of the LOS Acquisition,
deleting the number "$5,000,000.00" appearing in the
proviso to Section 4-19(c) and substituting the
number "$2,500,000.00" in its stead.
The LOS Acquisition shall not be included in the calculation of the
Borrower's compliance with any of the sections described in this Paragraph 4.
5. Consent to LOS Acquisition. Notwithstanding the provisions of
Section 4-19(c) which limit the amount of cash consideration
payable in connection with any Permitted Acquisition, the
Agent and the Lenders hereby consent to the consummation of
the LOS Acquisition and waive any Events of Default which
otherwise would have been occasioned thereby under Section
4-19(c).
6. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Agreement on the other Loan
Documents remain in full force and effect.
7. Miscellaneous.
(a) This First Amendment to Amended and Restated Loan and
Security Agreement may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all
of which together shall constitute one instrument.
(b) This First Amendment to Amended and Restated Loan
and Security Agreement expresses the entire understanding of
the parties with respect to the transactions contemplated
hereby. No prior negotiations or discussions shall limit,
modify, or otherwise affect the provisions hereof.
(c) Any determination that any provision of this
First Amendment or any application hereof is invalid, illegal
or unenforceable in any respect and in any instance shall not
affect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this First Amendment
to Amended and Restated Loan and Security Agreement.
(e) The Borrower shall pay on demand all costs and
expenses of the Agent and each Lender, including, without
limitation, reasonable attorneys' fees in connection with the
preparation, negotiation, execution and delivery of this First
Amendment to Amended and Restated Loan and Security Agreement.
(f) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this First Amendment
and is not relying on any representations or warranties of the
Agent or any Lender or their respective counsel in entering
into this First Amendment.
IN WITNESS WHEREOF, the parties have hereunto caused this First
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
AGENT
BANKBOSTON RETAIL FINANCE INC.
By: /s/ Michael L. Pizette
Name: Michael L. Pizette
Title: Managing Director
LENDERS
BANKBOSTON RETAIL FINANCE INC.
By: /s/ Michael L. Pizette
Name: Michael L. Pizette
Title: Managing Director
NORWEST BUSINESS CREDIT, INC.
By: /s/ Scott Fiore
Name: Scott Fiore
Title: Assistant Vice President
BORROWER
DESIGNS, INC.
By: /s/ Joel H. Reichman
Name: Joel H. Reichman
Title: President & CEO