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EXHIBIT 10.20
AMENDMENT NO. 8
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 8 ("Amendment") is entered into as of September __,
1998, by and between APPAREL VENTURES, INC., a Delaware corporation having its
chief executive office and principal place of business at 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Borrower") and FLEET CAPITAL CORPORATION
("Lender").
BACKGROUND
Borrower and Lender are parties to a Loan and Security Agreement dated
as of May 23, 1994 (as amended, supplemented, restated or otherwise modified
from time to time, the "Loan Agreement") pursuant to which Lender provided
Borrower with certain financial accommodations.
Borrower has requested that Lender amend certain provisions of the
Loan Agreement and Lender is willing to do so on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrower by Lender,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to the satisfaction of the
Conditions Precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1.1 of the Loan Agreement is hereby amended as follows:
(i) the following defined terms are hereby added in their
appropriate alphabetical order:
"Eligible Specified Account" -- an Account arising in the ordinary
course of Borrower's business from the sale of goods or rendition of services to
a Specified Account Debtor which is not a purchased Factored Account and which
Lender, in its reasonable credit judgment, deems to be an Eligible Specified
Account. Without limiting the generality of the foregoing, no Account shall be
an Eligible Specified Account if: (i) it is unpaid for more than sixty (60) days
after the original due date shown on the invoice; or (ii) it is due or unpaid
more than one hundred and eighty (180) days after the original invoice date; or
(iii) fifty percent (50%)
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or more of all Accounts from Specified Account Debtor are not deemed Eligible
Specified Accounts hereunder; or (iv) the total unpaid Accounts of Specified
Account Debtor exceed fifty percent (50%) of the net amount of all Accounts, to
the extent of such excess; or (v) any covenant, representation or warranty
contained in this Agreement with respect to such Account has been breached; or
(vi) Specified Account Debtor becomes also Borrower's creditor or supplier, or
has disputed liability with respect to the Account, or has made any claim with
respect to any other Account due from Specified Account Debtor to Borrower, or
the Account otherwise is subject to any right of setoff by Specified Account
Debtor, to the extent of any offset, dispute or claim; or (vii) Specified
Account Debtor has commenced a voluntary case under the federal bankruptcy laws,
as now constituted or hereafter amended, or made an assignment for the benefit
of creditors, or a decree or order for relief has been entered by a court having
jurisdiction in respect of Specified Account Debtor in an involuntary case under
the federal bankruptcy laws, as now constituted or hereafter amended, or any
other petition or other application for relief under the federal bankruptcy laws
has been filed against Specified Account Debtor, or if Specified Account Debtor
has failed, suspended business, ceased to be Solvent, or consented to or
suffered a receiver, trustee, liquidator or custodian to be appointed for it or
for all or a significant portion of its assets or affairs; or (viii) it arises
from a sale to Specified Account Debtor outside the United States, unless the
sale is on letter of credit, guaranty or acceptance terms, in each case
acceptable to Lender in its reasonable discretion; or (ix) it arises from a sale
to Specified Account Debtor on a xxxx-and-hold, guaranteed sale, sale-or-return,
sale-on-approval, consignment or any other repurchase or return basis; or (x)
Specified Account Debtor is located in either the State of New Jersey or the
State of Minnesota, unless Borrower has filed a Notice of Business Activities
Report with the appropriate officials in those states for the then current year;
or (xi) the Account is subject to a Lien other than a Permitted Lien; or (xii)
the goods giving rise to such Account have not been delivered to and accepted by
Specified Account Debtor or the services giving rise to such Account have not
been performed by Borrower and accepted by Specified Account Debtor or the
Account otherwise does not represent a final sale; or (xiii) the total unpaid
Accounts of Specified Account Debtor exceed a credit limit reasonably determined
by Lender to the extent such Account exceeds such limit; or (xiv) the Account is
evidenced by chattel paper or an instrument of any kind, or has been reduced to
judgment; or (xv) Borrower has made any agreement with Specified Account Debtor
for any deduction therefrom, to the extent of such deduction, except for
discounts or allowances which are made in the ordinary course of business for
prompt payment and which discounts or allowances are reflected in the
calculation of the face value of each invoice related to such Account; or (xvi)
Borrower has made an agreement with Specified Account Debtor to extend the time
of payment thereof.
"Eligible Licensed Nautica Inventory" -- Inventory which is subject to
the Nautica License Agreement.
"Nautica License Agreement" -- that certain License Agreement between
Borrower and Nautica Apparel, Inc. dated June 1, 1996.
"Real Property Advance Amount" -- the amounts set forth below during
the periods set forth below:
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Period Amount
------ ------
September __, 1998-- February 28, 1999 $1,750,000
March 1, 1999-- March 31, 1999 $1,400,000
April 1, 1999-- April 30, 1999 $875,000
May 1, 1999-- July 31, 2000 $0
"Specified Account Debtor" -- an Account Debtor approved in writing by
Lender, in its sole discretion, and designated by Lender in such writing as a
Specified Account Debtor.
"Year 2000 Issue" means the material failure of computer software,
hardware and firmware systems and equipment containing embedded computer chips
to properly receive, transmit, process, manipulate, store, retrieve, re-transmit
or in any other way utilize data and information due to the occurrence of the
year 2000 or the inclusion of dates on or after January 1, 2000.
(ii) the following defined terms are hereby amended in their
entirety to provide as follows:
"Borrowing Base" -- as at any date of determination thereof, an amount
equal to:
(a) ninety percent (90%) of the Factor Credit Balance owing to
Borrower at such date;
PLUS
(b) the lesser of (1) $10,000,000 or (2) the sum of
(i) sixty percent (60%), of the value of Eligible Inventory
(other than Eligible Licensed Inventory),
plus
(ii) the lesser of (1) $4,000,000 or (2) fifty-six percent
(56%), of the value of Eligible OP Licensed Inventory
plus
(iii) the lesser of (1) $2,500,000 or (2) fifty-six percent
(56%), of the value of Eligible Nautica Licensed Inventory
at such date calculated on the basis of the lower of cost or
market with the cost of finished goods calculated on a
first-in, first-out basis,
PLUS
(c) the lesser of (1) $1,500,000 or (2) eighty percent (80%), of
the Eligible Foreign Accounts outstanding at such date;
PLUS
(d) the lesser of (1) $2,000,000 or (2) fifty percent (50%) of
the Eligible Specified Accounts outstanding at such date;
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PLUS
(e) the Real Estate Advance Amount;
PLUS
(f) solely during the Seasonal Advance Period, the Seasonal
Advance Amount;
MINUS
(subtract from the sum of
clauses (a), (b), (c), (d), (e) and (f) above)
(g) an amount equal to the sum of (i) the face amount of all
Letters of Credit outstanding at such date and (ii) any unpaid amounts
due and payable which Lender may pay pursuant to any of the Loan
Documents for the account of Borrower.
"Eligible Licensed Inventory" -- collectively, the Eligible Licensed
Nautica Inventory and the Eligible Licensed OP Inventory.
"Eligible Licensed OP Inventory" -- Inventory which is subject to (1)
the OP License Agreement and (2) the OP Consent.
(h) Section 3.2 of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"3.2. Term of Agreement. Subject to Lender's right to cease making
Loans to Borrower at any time upon or after the occurrence of a Default or Event
of Default, this Agreement shall be in effect through and including July 31,
2000. This Agreement shall automatically renew itself for one (1) year periods
thereafter (the "Renewal Terms"), unless terminated as provided in Section 3.3
hereof."
(i) Section 6.1 of the Loan Agreement is hereby amended by adding the
following proviso:
"(AG) Year 2000 Issue. (i) Borrower has reviewed the effect of the
Year 2000 Issue on the computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for the
Borrower or used or relied upon in the conduct of their business (including
systems and equipment supplied by others or with which such computer systems of
the Borrower interface). The costs to the Borrower of any reprogramming required
as a result of the Year 2000 Issue to permit the proper functioning of such
systems and equipment and the proper processing of data, and the testing of such
reprogramming, and of the reasonably foreseeable consequences of the Year 2000
Issue to
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Borrower (including systems and equipment supplied by others) are not
reasonably expected to result in a Default or to have a Material Adverse
Effect."
(j) Section 7.1 of the Loan Agreement is hereby amended by adding the
following proviso:
"(R) Compliance with Year 2000. Borrower shall take all necessary
action to complete in all material respects by January 1, 1999, the
reprogramming of computer software, hardware and firmware systems and equipment
containing embedded microchips owned or operated by or for Borrower or used or
relied upon in the conduct of their business (including systems and equipment
supplied by others or with which such systems of the Borrower interface)
required as a result of the Year 2000 Issue to permit the proper functioning of
such computer systems and other equipment and the testing of such systems and
equipment, as so reprogrammed. At the request of Lender, Borrower shall provide
to the Lender reasonable assurance of its compliance with the preceding
sentence."
(k) Section 7.3 of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"7.3. Specific Financial Covenants. During the term of this Agreement,
and thereafter for so long as there are any Obligations to Lender, Borrower
covenants that, unless otherwise consented to by Lender in writing, it shall:
(A) Minimum Adjusted Tangible Net Worth. Maintain an Adjusted
Tangible Net Worth, to be measured as of the end of each month, of not less than
the amount ("Net Worth Amount") shown below for the months corresponding
thereto:
Month Ending Amount
------------ ------
09/30/98, and for each
month ending thereafter thru 01/31/99 ($22,000,000)
02/28/99 ($20,000,000)
03/31/99 ($18,000,000)
04/30/99, and for each
month ending thereafter ($15,000,000)
(B) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio, to be measured as of the end of each quarter for the periods described
below, of not less than:
(i) 1.10 to 1.0 for the three consecutive fiscal quarter period
ending on March 31, 1999; and
(ii) 1.25 to 1.0 for the four consecutive fiscal quarter period
ending on June 30, 1999, and for the four consecutive fiscal quarter
period ending on each fiscal quarter thereafter.
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Notwithstanding anything contained herein to the contrary, Lender
shall not test for the fiscal quarter period ending on September 30, 1998 and
the two consecutive fiscal quarter period ending on December 31, 1998.
(C) Minimum EBITDA. Maintain EBITDA, measured as of the end of
each month, of not less than the amount shown below for the period corresponding
thereto:
Period Amount
------ ------
3 months ended 09/30/98 ($3,650,000)
4 months ended 10/31/98 ($4,400,000)
5 months ended 11/30/98 ($4,000,000)
6 months ended 12/31/98 ($3,000,000)
7 months ended 01/31/99 ($1,500,000)
8 months ended 02/28/99 $2,800,000
9 months ended 03/31/99 $5,900,000
10 months ended 04/30/99 $7,500,000
11 months ended 05/31/99 $8,200,000
12 months ended 06/30/99, and
for the 12 months ended each
month thereafter $8,100,000
Lender acknowledges that the actual date or ending date of a period
reflected in the above tables may be different by a day or two depending upon
the specific accounting periods utilized by Borrower in the applicable fiscal
year."
3. Waiver. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, Lender hereby waives as of the date of this Amendment
the following Events of Default which have occurred as a result of Borrower's
non-compliance with the following provisions of the Loan Agreement:
(a) Section 7.3(A) solely for the fiscal quarter ended as of June 30,
1998;
(b) Section 7.3(B) solely for the four consecutive fiscal quarter
period ended as of June 30, 1998; and
(c) Section 7.3(C) solely for the four consecutive fiscal quarter
period ended as of June 30, 1998.
4. Conditions of Effectiveness. This Amendment shall become effective
upon satisfaction of the following conditions precedent: Lender shall have
received (i) four (4) copies of this Amendment executed by Borrower and Lender,
(ii) four (4) copies of a deed of trust in the amount of $1,750,000 on the real
property located at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
executed by Borrower in favor of Lender, (iii) the written consent to this
Amendment and the transactions contemplated herein from the required percentage
of the
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holders of the Senior Notes and (iv) such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Lender or
its counsel, each of which shall be in form and substance satisfactory to Lender
and its counsel.
5. Representations and Warranties. Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect to
the Loan Agreement.
(e) Borrower has obtained consent from the required holders of the
Senior Notes to the execution, delivery and performance of this Amendment and
Borrower is in compliance in all material respects with the terms contained in
the Senior Debt Documentation.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided in Section 3, operate as a waiver of any
right, power or remedy of Lender, nor constitute a waiver of any provision of
the Loan Agreement, or any other documents, instruments or agreements executed
and/or delivered under or in connection therewith.
7. Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
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8. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
9. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first written above.
APPAREL VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
