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EXHIBIT 10.1
AMENDMENT NUMBER SIX TO FACTORING, CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SIX TO FACTORING, CREDIT AND SECURITY AGREEMENT (this
"Amendment") is entered into as of June 23, 1997, between THE SIRENA APPAREL
GROUP, INC., a Delaware corporation ("Sirena"), and XXXXXX FINANCIAL, INC., a
Delaware corporation ("Xxxxxx") and amends that certain Factoring, Credit and
Security Agreement, dated as of August 19, 1994, between Sirena and Xxxxxx, as
amended from time to time (the "Agreement") and is based upon the following
facts:
RECITALS
A. Sirena has requested that Xxxxxx amend certain terms of Agreement.
X. Xxxxxx has agreed to amend certain terms of the Agreement in
accordance with Sirena's request.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sirena and Xxxxxx, intending to
be legally bound, hereby amend the Agreement as follows:
1. Unless specifically defined herein, all capitalized terms contained in
this Amendment shall have the definition ascribed to such terms in the
Agreement.
2. The Agreement is amended by deleting the definitions of "Maximum
Revolving Loan Amounts" and "Maximum Special Advances Amount" and substituting
the following definitions of "Maximum Revolving Loan Amount" and "Maximum
Special Advances Amount":
"Maximum Revolving Loan Amount" means, as of any date of determination,
an amount equal to the lesser of: (a) an amount equal to (i) fifty
percent (50%) of Eligible Inventory consisting of raw materials plus
(ii) fifty percent (50%) of Eligible Inventory either which is Current
Season Inventory or which consists of finished goods for which Sirena
has confirmed purchase orders in house for future shipments plus (iii)
forty percent (40%) of eligible Inventory consisting of Previous Season
Inventory which is on hand at any time on or prior to October 31st of
the then current Shipping Season plus (iv) twenty-five percent (25%) of
Eligible Inventory consisting of Previous Season Inventory which is on
hand at any time during the period from November 1 through June 30th of
the then current Shipping Season less (v) such reserves as Xxxxxx, in
its sole reasonable discretion, elects to establish; and (b) an amount
equal to the lesser of (i) the maximum aggregate outstanding amounts of
Revolving Loans as set forth in the following table for the applicable
periods set forth in the following table and (ii) $1,000,000 in excess
of each of the maximum aggregate outstanding
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amounts of Revolving Loans projected to be needed by Sirena for the periods set
forth in the following table in accordance with Projections delivered by Sirena
to Xxxxxx in accordance with the terms of this Agreement and acceptable to
Xxxxxx, in its sole discretion:
MAXIMUM AGGREGATE OUTSTANDING
PERIOD AMOUNT OF REVOLVING LOANS
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January and February, 1997 and
each January and February $5,000,000
thereafter
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March, 1997 and each March
thereafter $4,000,000
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April and May, 1997 and each
April and May thereafter $2,000,000
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June and July, 1997 and each
June and July thereafter $1,000,000
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August, 1997 and each August
thereafter $2,000,000
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September, 1997 and each
September thereafter $3,500,000
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October, 1997 and each October
thereafter $4,000,000
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November, 1997 and each November
thereafter $4,500,000
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December, 1997 and each December
thereafter $5,000,000
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"Maximum Special Advances Amount" means, as of any date of determination, an
amount equal to the lesser of: (a) the maximum aggregate outstanding amounts of
Special Advances as set forth in the following table for the applicable periods
set forth in the following table; and (b) $1,000,000 in excess of each of the
maximum aggregate outstanding amounts of Special Advances projected to be
needed by Sirena for the periods set forth in the following table in accordance
with Projections delivered by Sirena to Xxxxxx in accordance with the terms of
this Agreement and acceptable to Xxxxxx, in its sole discretion:
MAXIMUM AGGREGATE OUTSTANDING
PERIOD AMOUNT OF SPECIAL ADVANCES
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January, 1997 and each January
thereafter $2,000,000
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February and March, 1997 and each
February and March thereafter $1,000,000
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April, May, June, July and
August, 1997 and each April, May,
June, July and August thereafter $-0-
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September, 1997 and each
September thereafter $ 500,000
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October, 1997 and each October
thereafter $1,000,000
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November, 1997 and each
November thereafter $1,500,000
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October, 1997 and each December
thereafter $2,000,000
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3. The Agreement is amended by deleting subpart (B)(2) of subsection 2.1
and substituting the following new subpart:
(2) Xxxxxx shall have no obligation to make Factoring Advances,
Special Advances, Revolving Loans or issue Supplier/Factor Guaranties to the
extent the amount of any requested Factoring Advance, Special Advance,
Revolving Loan or Supplier/Factor Guaranty, when added to then outstanding
aggregate Obligations, would cause the then outstanding aggregate Obligations
to exceed $20,000,000.
4. Subsection 2.2 of the Agreement is amended by deleting subpart (A) and
substituting the following new subpart (A), and also by adding the following
new subpart (E):
(A) So long as no Event of Default has occurred and is continuing,
Factoring Advances shall bear interest from the date such Factoring Advances
are made to the date paid at a rate per annum (meaning 360 days) equal to three
eighths of one percent (0.375%) plus the Prime Rate (the "Factoring Advances
Inerest Rate"). So long as no Event of Default has occurred and is continuing,
Special Advances, Revolving Loans and all other Obligations of Sirena
(including, without limitation, reimbursement obligations in connection with
the Supplier/Factor Guaranties) shall bear interest from the date such Special
Advances and/or Revolving Loans are made or such other obligations (including
Obligations arising in connection with the Supplier/Factor Guaranties) of
Sirena become due to the date paid at a rate per annum (meaning 360 days) equal
to two percent (2.0%) plus the Prime Rate (the "Revolving Loan Interest Rate").
After the occurrence of an Event of Default and for so long as such Event of
Default continues, the Factoring Advances, Special Advances, Revolving Loans
and all other Obligations (including Obligations arising in connection with the
Supplier/Factor Guaranties) of Sirena shall, at Xxxxxx'x option, bear interest
at a rate per annum (meaning 360 days) equal to three percent (3.0%) plus the
Revolving Loan Interest Rate. Interest on Factoring Advances, Special Advances,
Revolving Loans and all other Obligations shall be computed on the daily
principal balance net of all payments received from Sirena or on behalf of
Sirena and net of the Purchase Price of Accounts. Interest will be calculated
daily on the basis of a 360-day year for the actual number of days elapsed in
the period during which it accrues and shall be charged to the account of
Sirena at the end of each month. Any publicly announced change in the Prime
Rate shall result in an adjustment to the Factoring Advances Interest Rate and
the Revolving Loan Interest Rate on the next Business Day.
(E) Excess Inventory Interest. As of the last day of each month set
forth below, Siren's aggregate Inventory, at the lower of cost or market on a
FIFO basis in accordance with GAAP, shall be an amount less than or equal to
the amounts set forth below.
Month Target Inventory
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July, 1997 $6,000,000
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August, 1997 $7,000,000
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September, 1997 $8,000,000
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October, 1997 $11,000,000
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November, 1997 $11,500,000
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December, 1997 $13,000,000
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January, 1998 $15,500,000
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February, 1998 $16,000,000
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March, 1998 $14,000,000
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April, 1998 $9,500,000
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May, 1998 $6,500,000
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June, 1998 $5,000,000
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If on the last day of any month set forth above, Sirena's actual
Inventory exceeds the corresponding Target Inventory, then for such
month Sirena will pay to Xxxxxx additional interest of one percent
(1.0%) per annum on that portion of the Revolving Loans equal to the
difference between the actual Inventory minus the Target Inventory on
the last day of such month. For example, if on July 31, 1997 Sirena's
actual Inventory is $8,000,000, then for July, 1997 Sirena would pay the
one percent (1.0%) additional interest on the first $2,000,000 of
Revolving Loans.
5. The Agreement is amended by deleting subsection 2.5 in its entirety and
substituting the following new subsection:
2.5 Term of this Agreement. This Agreement will continue until August
18, 2000 (the "Original Term") and shall remain in force and effect
thereafter but it may be terminated by either party giving the other
written notice at least sixty (60) days prior to the end of the Original
Term or at any time after the end of the Original Term, which written
notice shall clearly state such party's intention to terminate at the
end of the Original Term or at the end of such sixty (60) day period if
after the Original Term; provided, however, that Sirena may prepay and
terminate the Revolving Loan Facility at any time by paying in full all
of the outstanding Revolving Loans, including all accrued and unpaid
interest thereon. The Commitments shall (unless earlier terminated)
terminate on the Termination Date. In addition, this Agreement may be
terminated as set forth in Section 8.3 hereof. Upon termination in
accordance with Section 8.3 or on the Termination Date, all Obligations
shall become immediately due and payable without notice or demand.
Notwithstanding any termination, until all Obligations have been fully
paid and satisfied, Xxxxxx, shall be entitled to retain security
interests in and liens upon all Collateral, and even after payment of
all Obligations hereunder, the obligation of Sirena to indemnify Xxxxxx
in accordance with the terms hereof shall continue.
6. The Agreement is amended by deleting subsection 5.3 in its entirety and
substituting the following new subsection.
5.3 Inspection. Sirena shall permit Xxxxxx and any authorized
representatives designated by Xxxxxx to visit and inspect any of the
properties of Sirena or any of its Subsidiaries, including
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its and their financial and accounting records, and to make copies and
take extracts therefrom, and to discuss its and their affairs, finances
and business with its and their officers and independent public
accountants, at such reasonable times during normal business hours and
as often as may be reasonably requested. Sirena acknowledges that Xxxxxx
intends to make such inspections on at least a quarterly basis.
7. The Agreement is amended by deleting Section 6 in its entirety and
substituting the following new section:
SECTION 6 FINANCIAL COVENANTS
Sirena covenants and agrees that so long as any of the Commitments
remain in effect and until payment in full of all Obligations, Sirena
shall comply with and shall cause each of its Subsidiaries to comply
with all covenants in this Section 6 applicable to such Person.
6.1 Tangible Net Worth. As of each date set forth below, Sirena shall
maintain Tangible Net Worth of at least the amounts set forth below.
DATE TANGIBLE NET WORTH
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06/30/97 $8,000,000
09/30/97 6,000,000
12/31/97 6,500,000
03/31/98 10,000,000
06/30/98 10,000,000
The last day of each
quarter of a Fiscal Year
thereafter 6,000,000
6.2 Working Capital. As of each date set forth below, Sirena shall
maintain Working Capital of at least the amounts set forth below.
"Working Capital" means the current assets of Sirena on a consolidated
basis decreased by (a) the current liabilities of Sirena on a
consolidated basis and (b) the amount of any obligations owing to Sirena
or any of its Subsidiaries by any Affiliate of Sirena or any of its
Subsidiaries.
DATE TANGIBLE NET WORTH
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06/30/97 $7,000,000
09/30/97 5,000,000
12/31/97 5,000,000
03/31/98 8,000,000
06/30/98 8,000,000
The last day of each
quarter of a Fiscal Year
thereafter 6,000,000
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6.3 Ratio of Indebtedness to Tangible Net Worth. As of each date
set forth below, the ratio of (a) Sirena's Indebtedness, on a consolidated
basis, to (b) Sirena's Tangible New Worth shall not be greater than the ratios
set forth below.
DATE RATIO
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06/30/97 0.8:1
09/30/97 1.1:1
12/31/97 1.4:1
03/31/98 0.8:1
06/30/98 0.8:1
The last day of each
quarter of a Fiscal Year 1.9:1
thereafter
8. The Agreement is amended by adding the Second Allonge to Revolving Note
attached hereto as Attachment "A" to the form of Revolving Note attached to the
Agreement as Exhibit 1.1(D).
9. The Agreement is amended by adding the Second Allonge to Special
Advances Note attached hereto as Attachment "B" to the form of Special Advances
Note attached to the Agreement as Exhibit 1.1(E).
10. This Amendment shall be deemed effective as of the date of this
Amendment. Except as specifically amended herein, the Agreement shall remain
in full force and effect without any other changes, amendments or modifications.
THE SIRENA APPAREL GROUP, INC.,
a Delaware corporation
By: /s/ [SIG]
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Title: Exec. V.P., Chief Financial Officer
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XXXXXX FINANCIAL, INC.,
a Delaware corporation
By: /s/ [SIG]
----------------------------------------
Title: Sr. V.P. 7/1/97
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ATTACHMENT "A"
SECOND ALLONGE
TO
REVOLVING NOTE
The Revolving Note dated August 19, 1994 (the "Note") and issued by THE
SIRENA APPAREL GROUP, INC. ("Sirena") to XXXXXX FINANCIAL, INC. ("Xxxxxx") in
the principal amount of the lesser of (i) Six Million Dollars ($6,000,000.00)
or (ii) the unpaid principal amount of all Revolving Loans made by Xxxxxx to
Xxxxxx under that certain Factoring, Credit and Security Agreement dated as of
August 19, 1994, to which this Second Allonge is attached, and which evidences
said Revolving Loans, is hereby amended by deleting the title and first
paragraph thereof and by substituting the following new title and first
paragraph.
REVOLVING NOTE
$5,000,000 As of August 19, 1994
FOR VALUE RECEIVED, the undersigned, THE SIRENA APPAREL GROUP, INC., a Delaware
corporation ("Sirena"), promises to pay to the order of XXXXXX FINANCIAL, INC.
("Xxxxxx") at its office at 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, or at such other place as the holder hereof may appoint, the lesser of
(i) Five Million Dollars ($5,000,000) or (ii) the unpaid principal amount of
all Revolving Loans made by Xxxxxx to Xxxxxx under that certain Factoring,
Credit and Security Agreement dated as of August 19, 1994, as amended from
time to time (the "Credit Agreement"), with interest from the date hereof
calculated daily at the rate per annum (meaning 360 days) equal to two percent
(2.0%) plus the reference rate of interests (the "Prime Rate") as announced
from time to time by Bank of America National Trust and Savings Association
(the "Reference Bank"), until due or declared due, payable on the whole amount
of said principal sum remaining from time to time unpaid, together with
exchange, commission, charges, collection expenses, and reasonable attorneys'
fees. The maximum principal amount of all outstanding Revolving Loans is
limited in accordance with the provisions contained in the Credit Agreement
and, at times, is less than Five Million Dollars ($5,000,000).
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This Second Allonge shall be governed by, and shall be construed and
enforced in accordance with, the laws of the State of California.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Factoring, Credit and Security Agreement
described above.
Dated: June 23, 1997
THE SIRENA APPAREL GROUP, INC.
By: [SIG]
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Title: EVP, CFO
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XXXXXX FINANCIAL, INC.
By: [SIG]
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Title: Sr. V.P. 7/1/97
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ATTACHMENT B
SECOND ALLONGE
TO
SPECIAL ADVANCES NOTE
The Special Advances Note dated January 27, 1995 (the "Note") and issued
by THE SIRENA APPAREL GROUP, INC. ("Sirena") to XXXXXX FINANCIAL, INC.
("Xxxxxx") in the principal amount of the lesser of (i) Three Million Dollars
($3,000,000.00) or (ii) the unpaid principal amount of all Special Advances made
by Xxxxxx to Xxxxxx under the Factoring, Credit and Security Agreement dated as
of August 19, 1994, to which this Second Allonge is attached, and which
evidences said Special Advances, is hereby amended by deleting the title and
first paragraph thereof and by substituting the following new title and first
paragraph.
SPECIAL ADVANCES NOTE
$2,000,000 As of January 27, 1995
FOR VALUE RECEIVED, the undersigned, THE SIRENA APPAREL GROUP, INC., a
Delaware corporation ("Sirena"), promises to pay to the order of XXXXXX
FINANCIAL, INC. ("Xxxxxx") at its office at 000 Xxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, or at such other place as the holder hereof
may appoint, the lesser of (i) Two Million Dollars ($2,000,000) or (ii)
the unpaid principal amount of all Special Advances made by Xxxxxx to
Sirena under that certain Factoring, Credit and Security Agreement dated
as of August 19, 1994, as amended from time to time (the "Credit
Agreement"), with interest from the date hereof calculated daily at the
rate per annum (meaning 360 days) equal to two percent (2.0%) plus the
reference rate of interest (the "Prime Rate") as announced from time to
time by Bank of America National Trust and Savings Association (the
"Reference Bank"), until due or declared due, payable on the whole
amount of said principal sum remaining from time to time unpaid,
together with exchange, commission, charges, collection expenses, and
reasonable attorneys' fees. The maximum principal amount of all
outstanding Special Advances is limited in accordance with the
provisions contained in the Credit Agreement and, at times, is less than
Two Million Dollars ($2,000,000).
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