EXHIBIT 10.27
AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (the
"Amendment") is made and entered into effective as of the first day of August,
1998, by and among NATIONSBANK, N.A., as agent for the financial institutions
party to the Loan Agreement (as hereafter defined) from time to time (the
"Agent"), the financial institutions party to the Loan Agreement from time to
time (the "Lenders"), and SUPREME INTERNATIONAL CORPORATION, a Florida
corporation (the "Borrower").
W I T N E S S E T H :
WHEREAS, Agent, Borrower and Lenders entered into that certain Amended and
Restated Loan and Security Agreement, dated March 31, 1998 (the "Loan
Agreement"), pursuant to which the Agent and the Lenders agreed to extend
Revolving Credit Loans to the Borrower, and
WHEREAS, the Borrower has requested that the Lenders increase the maximum
amount of the Revolving Credit Facility and otherwise amend the Loan Agreement,
and the Agent and the Lenders have agreed to do so, subject to the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly defined
herein shall have the respective meanings given to such terms in the Loan
Agreement.
2. The Loan Agreement is amended by deleting the existing definitions of
"Borrowing Base" and "Revolving Credit Facility" from Section 1.1 and
substituting the following in lieu thereof:
"BORROWING BASE" means at any time the lesser of (a) the Revolving
Credit Facility minus the Standby Letter of Credit Reserve and (b) an
amount equal to the sum of:
(i) 85% (or such lesser percentage as the Agent may in its sole and
absolute discretion determine from time to time) of the face value of Eligible
Receivables due and owing at such time, PLUS
(ii) THE LESSER OF
(A) 90% (or such lesser percentage as the Agent may in its sole and
absolute discretion determine from time to time) of the Factoring Credit
Balances due and owing at such time, AND
(B) $15,000,000.00, PLUS
(iii) THE LESSER OF
(A) from August 1, 1998 through November 30, 1998, 60% (or such lesser
percentage as the Agent may in its sole and absolute discretion determine
from time to time) of the lesser of cost (computed on a first-in-first-out
basis) and fair market value of Eligible Inventory at such time, and from
December 1, 1998 and thereafter, 50% (or such lesser percentage as the
Agent may in its sole and absolute discretion determine from time to time)
of the lesser of cost (computed on a first-in-first-out basis) and fair
market value of Eligible inventory at such time, AND
(B) $25,000,000.00, PLUS
(iv) THE LESSER OF
(A) the fair market value as determined by the Agent of the Borrower's
Intellectual Property on which the Agent has a first priority, perfected
Security Interest pursuant to the Trademark Assignment, AND
(B) $5,000,000.00, MINUS
(v) the Standby Letter of Credit Reserve and such other reserves as the
Agent may determine from time to time in the exercise of its reasonable credit
judgment.
"REVOLVING CREDIT FACILITY" means the facility for the Revolving Credit
Loans in the principal sum of up to $60,000,000 or such lesser or greater amount
as shall be agreed upon from time to time in writing by the Agent, the Lenders
and the Borrower.
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3. The Loan Agreement is amended to add the following new Section 6.1(aa):
Section 6.1 (aa) YEAR 2000 COMPLIANCE. The Borrower has (a) initiated a
review and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by the Borrower or any of its
Subsidiaries (or suppliers, vendors and customers) may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (b) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (c) to date, implemented
that plan in accordance with that timetable. Based on the foregoing, the
Borrower believes that all computer applications (including those of its
suppliers, vendors and customers) that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely basis
to be able to perform properly date-sensitive functions for all dates before and
after January 1, 2000 (that is, be "Year 2000 compliant").
4. The Loan Agreement is amended to add the following new Section 9.10:
Section 9.10 YEAR 2000 COMPLIANCE. The Borrower will promptly notify the
Agent in the event the Borrower discovers or determines that any computer
application (including those of its suppliers, vendors and customers) that is
material to its or any of its Subsidiaries' business and operations will not be
Year 2000 compliant (as defined in SECTION 6.1 (AA)).
5. The Loan Agreement is amended by deleting the existing Section 11.5 and
substituting the following in lieu thereof:
Section 11.5 CAPITAL EXPENDITURES. Make or incur any Capital
Expenditures, except that the Borrower may make or incur Capital
Expenditures in an amount not to exceed, in the aggregate, $4,000,000.00
for the 1999 fiscal year, and $2,000,000.00 during any fiscal year
thereafter.
6. Borrower agrees to pay a fee of $12,500.00 to the Agent for the pro rata
benefit of the Lenders for establishing and making available the increased
Revolving Credit Facility.
7. The Borrower hereby restates, ratifies, and reaffirms each and every
term, condition, representation and warranty heretofore made by it under or in
connection with the execution and delivery of the Loan Agreement as amended
hereby and the other loan documents executed and/or delivered in connection
herewith (the "Loan Documents") as fully as though
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such representations and warranties had been made on the date hereof and with
specific reference to this Amendment and the Loan Documents.
8. As amended hereby, the Loan Agreement shall be and remain in full force
and effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrower to the Agent and the Lenders.
9. The Borrower agrees to pay on demand all costs and expenses of the Agent
in connection with the preparation, execution, delivery and enforcement of this
Amendment and all other Loan Documents and any other transactions contemplated
hereby, including, without limitation, the fees and out-of-pocket expenses of
legal counsel to the Agent.
10. To induce the Agent and each Lender to enter into this Amendment, the
Borrower hereby (i) represents and warrants that, as of the date hereof, and
after giving effect to the terms hereof, there exists no Event of Default (or
any event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default) under the Loan Agreement or any of the
Loan Documents; and (ii) acknowledges and agrees that no right of offset,
defense, counterclaim, claim, causes of action or objection in favor of the
Borrower against the Agent or any Lender exists arising out of or with respect
to any of the indebtedness, the Loan Agreement, or any of the other Loan
Documents, or with respect to the administration or funding of the indebtedness.
11. The Borrower agrees to take such further action as the Agent or any
Lender shall reasonably request in connection herewith to evidence the
amendments herein contained to the Loan Agreement.
12. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
13. This Amendment shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto.
14. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Georgia, other than its laws respecting choice of law.
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IN WITNESS WHEREOF, the Borrower, the Agent and each Lender have caused
this Amendment to be duly executed under seal by their authorized officers in
several counterparts, all as of the date first above written.
BORROWER:
SUPREME INTERNATIONAL CORPORATION
[CORPORATE SEAL]
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title: Chairman
LENDERS:
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: VICE PRESIDENT
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
00 Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Business Credit
Facsimile No.: 000-000-0000
SUNTRUST BANK, MIAMI, N.A.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: SVP
Address: MC1042
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn.: Xxxxxx Xxxxxxx
Facsimile No.: 000-000-0000
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: VP
Address: 000 X. 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: SR. VICE PRESIDENT
Address: FL6011
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx Xxxxx
Facsimile No.: 000-000-0000
XXXXXXXX BANK, N.A.
By: Vanessa Bryscis
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Name: Vanessa Bryscis
Title: VICE PRESIDENT
Address: 0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Attn.: Vanessa Bryscis
Facsimile No.: 000 000 0000
Phone: 000 000 0000
AGENT:
NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: VICE PRESIDENT
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
00 Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn.: Business Credit
Facsimile No.: 000-000-0000