THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Third Amendment to Amended and Restated Loan and Security
Agreement is made as of the 28th day of October, 1999 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 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 has notified the Borrower of the
occurrence of certain Events of Default under the Agreement; and
WHEREAS, the Agent, the Lenders and the Borrower desire to waive such
Events of Default 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 by deleting subparagraph (b) of
the definition of "Change in Control" in its entirety and
substituting the following in its stead:
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(b) More than one-third of the persons who were
directors of the Borrower on the first day of any
period consisting of Twelve (12) consecutive
calendar months (the first of which Twelve (12)
month periods commences on the first day of
November, 1999), cease, for any reason other than
death or disability, to be directors of the Borrower.
(c) The persons who are directors of the Borrower as
of October 28, 1999 cease, for any reason, to
constitute a majority of the board of directors of
the Borrower.
3. Amendments to Article 10. The provisions of Article 10 of the
Loan Agreement are hereby amended by adding the following new
Events of Default at the end thereof:
10-19 Material Adverse Change. An event
shall have occurred or failed to occur,
which occurrence or failure is or could have
a materially adverse effect upon the
Borrower's financial condition when compared
with such financial condition as of October
8, 1999.
00-00 Xxxx Xxxxxxx Changes. There shall have
occurred any material adverse change in or
to the Borrower's business relationship with
Levi Xxxxxxx & Co. when compared to such
relationship as of October 8, 1999.
4. Waiver of Event of Default. The Agent and the Lenders waive
any Event of Default which arose as a result of the Change
in Control which occurred on or about October 8, 1999. This
waiver is a one time waiver and relates only to the events
described in this paragraph. This waiver shall not modify
any rights of the Agent and the Lenders under the Agreement
in the event of any future Change in Control or on account of
any other Event of Default.
5. 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.
6. Miscellaneous.
(a) This Third 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 Third Amendment to Amended and Restated
Loan and Security Agreement expresses the entire
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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
Third 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 Third 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 Third
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 Third Amendment
and is not relying on any representations or warranties of the
Agent or any Lender or their respective counsel in entering
into this Third Amendment.
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IN WITNESS WHEREOF, the parties have hereunto caused this Third
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/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
LENDERS
BANKBOSTON RETAIL FINANCE INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
NORWEST BUSINESS CREDIT, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Vice President
BORROWER
DESIGNS, INC.
By: /s/ Xxxxx X. Xxxxx, as EVP
Name: Xxxxx X. Xxxxx, as
Title: Executive Vice President
526088.2
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