Exhibit 10.13
FOURTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Amended and Restated Loan and Security Agreement is
made as of the 13 day of March, 2000 by and between
Fleet Retail Finance Inc. f/k/a 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 00 X Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
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 (as amended and in
effect, the "Agreement"); and
WHEREAS, the Agent, the Lenders and the Borrower desire 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. Amendment to Article 1. The provisions of Article 1 of the Agreement
are hereby amended
(a) by adding the following at the end of clause (a) of
the definition of "Fixed Charge Coverage Ratio":
, plus for all calculation periods commencing with
the Borrower"s fiscal year ending January 29, 2000 through the
fiscal year ending January, 2001, the sum of $10,358,855.00
(b) by adding the following provision at the end of the definition
of "Inventory Advance Rate":
Notwithstanding the foregoing provisions of the above
table, for the period commencing as of March 1, 2000 through and
including July 14, 2000 only, the Inventory Advance Rate shall be
sixty-five percent (65%). After July 14, 2000, the provisions of the
above table shall apply.
3. Amendment to Article 2. The provisions of Article 2 of the Agreement
are hereby amended as follows:
(a) Section 2-12 of the Agreement is hereby amended by
deleting "June 4, 2000" from subclause (b) in the fifth (5th)
line thereof, and substituting "May 4, 2001" in its stead.
(b) Section 2-15(b)(i) of the Agreement is hereby
amended by deleting the words "Five Million Dollars
($5,000,000.00)" and substituting the words "Ten Million
Dollars ($10,000,000.00)" in its stead.
4. Amendment to Exhibits. The provisions of Exhibit 5-13 to the Loan
Agreement are hereby amended to provide that the Minimum Tangible
Net Worth required for the Fiscal Quarter ending January 29, 2000
and each fiscal quarter ending thereafter shall be in an amount of
$52,000,000.00 less the impact, if any, of any reduction to the
Borrower's "deferred income tax asset" reflected on the Borrower's
balance sheet.
5. Amendment Fee. In consideration of the Agent's and the Lenders'
entering into this Fourth
Amendment, the Borrower shall pay the Agent an Amendment Fee (so
referred to herein) in the sum of $15,000.00. The Amendment Fee
shall be payable in three installments of $5,000.00 each, the first
being payable on the date hereof and the other installments due on
the first day of May, 2000 and June, 2000. Notwithstanding the
foregoing, in the event that the Amendment Fee has not been paid in
full as of the Termination Date, any remaining unpaid balance
thereof shall be payable in full on the Termination Date. The
Amendment Fee shall be fully earned upon the execution of this
Fourth Amendment and shall not be subject to refund or rebate under
any circumstances.
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. Without limiting the generality of the
foregoing, the parties hereto ratify and confirm that the LOS
Acquisition shall not be included in the calculation of the
Borrower"s compliance with any of the following sections of the
Agreement: 4-18(b), 4- 19(b), 4-19(c).
7. Miscellaneous.
(a) This Fourth 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 Fourth 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 Fourth
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 Fourth Amendment
to Amended and Restated Loan and Security Agreement.
(d) 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 Fourth Amendment to Amended and
Restated Loan and Security Agreement.
(e) The Borrower warrants and represents that the Borrower has
consulted with independent legal counsel of the Borrower's selection
in connection with this Fourth Amendment and is not relying on any
representations or warranties of the Agent or any Lender or their
respective counsel in entering into this Fourth Amendment.
IN WITNESS WHEREOF, the parties have hereunto caused this Fourth Amendment
to be executed and their seals to be hereto affixed as of the date first above
written.
AGENT
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
LENDERS
FLEET RETAIL FINANCE INC.
By /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BUSINESS CREDIT,
INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: AVP
BORROWER
DESIGNS, INC.
By: /s/Xxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Sr.VP,CFO & Treasurer
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President & CEO
