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EXHIBIT 10.5
AMENDMENT NO. 6
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 6 ("Amendment") is entered into as of April 30,
1997, 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
(f/k/a Shawmut Capital Corporation) ("Lender").
BACKGROUND
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Borrower and Lender are parties to a Loan and Security Agreement dated
as of May 23, 1994 (as same has been or may further be 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 3 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:
"Amendment No. 6 Closing Date" shall mean April 30, 1997.
"Advances to AVE" has the meaning assigned to that term in subsection
7.2(B)(1).
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"Advances to Mexican Subsidiary" has the meaning assigned to that term
in subsection 7.2(B)(2).
"Cash Charge Coverage Ratio" - shall mean the ratio of
(1) (a) EBITDA, less (b) non-financed Capital Expenditures,
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(2) (a) Interest Expense, plus (b) Advances to AVE, plus (c)
Advances to Mexican Subsidiary, plus (d) Taxes, plus (e) the
principal portion of payments with respect to a Capitalized
Lease Obligation.
"EBITDA" means, for any period, without duplication, the total of the
following for Borrower and its subsidiaries on a consolidated basis,
each calculated for such period: (1) net income determined in accordance
with GAAP; plus, to the extent included in the calculation of net
income, (2) the sum of (a) taxes based on income or profits ("Taxes");
(b) Interest Expenses, net of interest income, paid or accrued; (c)
interest paid in kind; (d) amortization and depreciation and (e) other
non-cash charges (excluding accruals for cash expenses made in the
ordinary course of business).
"Eligible Foreign Accounts" - shall mean an Eligible Account except that
it arises from a sale to an Account Debtor outside the United States and
the sale is on letter of credit which is acceptable to Lender in its
reasonable discretion.
"Eligible Licensed Inventory" - Inventory which is subject to the (1) OP
License Agreement and (2) OP Consent.
"Interest Expenses" means, without duplication, for any period, the
following, for Borrower and its subsidiaries on a consolidated basis,
each calculated for such period: interest expenses deducted in the
determination of net income (excluding (i) the amortization of fees and
costs with respect to the transactions contemplated by this Agreement
which have been capitalized as transaction costs; and (ii) non-cash
interest, such as interest paid in kind, imputed interest or original
issue discount).
"Mexican Subsidiary" means AVI De Mexico, S.A. De C.V.
"OP Consent" means the consent relating to the OP License Agreement
between Lender and Xxxxx Xxxxxxx Apparel, Corp.
"OP License Agreement" means the certain License Agreement between
Borrower and Xxxxx Xxxxxxx Apparel, Corp. dated January 31, 1997.
"Taxes" has the meaning assigned to that term in the definition of
"EBITDA" in this subsection 1.1.
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"Term Loan Rate" shall mean the interest rate for the Term Loan, as
provided in subsection 3.1(A).
(ii) the following defined terms are hereby amended in their
entirety to provide as follows:
"Bank" shall mean Fleet National Bank.
"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 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 fist-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) solely during the Seasonal Advance Period, the Seasonal
Advance Amount;
MINUS
(subtract from the sum of
clauses (a), (b), (c) and (d) above)
(d) an amount equal to the sum of (a) the face amount of all
Letters of Credit outstanding at such date and (b) any unpaid
amounts due and payable which Lender may pay pursuant to any of
the Loan documents for the account of Borrower.
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"Business Day" -- a day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such state are closed, or for the
purpose of Eurodollar Loans only, a day on which Commercial Banks are
open for dealings in Dollar deposits in the London, England (UK) market.
"Term Note" -- the secured Amended and Restated Term Note executed by
Borrower on or about April 30, 1997, in favor of Lender to evidence the
Term Loan."
(b) Section 3.1(A) of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"(A) Interest.
(1) Base Rate Loans:
(i) Base Rate Revolving Loans: Interest shall accrue on
the principal amount of those Base Rate Loans (other
than Seasonal Advances and the Term Loan) outstanding at
the end of each day at a fluctuating rate per annum
(computed on the actual days elapsed over a year of 360
days) equal to one-half of one percent (0.50%) above the
Base Rate.
(ii) Base Rate Seasonal Loans: Interest shall accrue on
the principal amount of those Base Rate Loans which are
Seasonal Advances outstanding at the end of each day at
a fluctuating rate per annum (computed on the actual
days elapsed over a year of 360 days) equal to one and
one-half percent (1.50%) above the Base Rate.
(iii) Base Rate Term Loans: Interest shall accrue on the
principal amount of those Base Rate Loans which are Term
Loans outstanding at the end of each day at a
fluctuating rate per annum (computed on the actual days
elapsed over a year of 360 days) equal the Base Rate.
(iv) Determining Base Rate: After the date hereof, the
foregoing rates of interest shall be increased or
decreased, as the case may be, by an amount equal to any
increase or decrease in the Base Rate, with such
adjustments to be effective as of the opening of
business on the day that any such change in the Base
Rate becomes effective. The Base Rate in effect on the
date hereof shall be the Base Rate effective as of the
opening of business on the date hereof, but if this
Agreement is executed on a day that is not a Business
Day, the Base Rate in effect on the date hereof shall be
the Base Rate effective as of the opening of business on
the last Business Day immediately preceding the date
hereof.
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(2) Eurodollar Loans:
(i) Eurodollar Revolving Loans: Interest shall accrue on
the principal amount of those Eurodollar Loans, which
are Revolving Loans (other than Seasonal Advances),
outstanding at a rate per annum equal to two and three
quarters percent (2.75%) above the Eurodollar Rate.
(ii) Eurodollar Seasonal Loans: Interest shall accrue on
the principal amount of those Eurodollar Loans, which
are Seasonal Advances, outstanding at a rate per annum
equal to three and three quarters percent (3.75%) above
the Eurodollar Rate.
(iii) Eurodollar Term Loans: Interest shall accrue on
the principal amount of those Eurodollar Loans, which
are Term Loans, outstanding at a rate per annum equal to
two and one half percent (2.5%) above the Eurodollar
Rate."
(c) Section 7.2(B) of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"(B) Loans. Make any loans or other advances of money (other
than for salary, travel advances, advances against commissions
and other similar advances in the ordinary course of business)
to any Person, including, without limitation, any of Borrower's
Affiliates, officers or employees, except for:
(1) loans or other advances to AVE which together with
the value of all assets transferred to AVE by Borrower
at any time outstanding ("Advances to AVE") does not
exceed (i) $2,500,000 from the Closing Date through
January 31, 1996, (ii) $2,630,000 from February 1, 1996
through Xxxxx 00, 0000, (xxx) $3,000,000 from April 1,
1996 through June 29, 1996, (iv) $2,500,000 on June 30,
1996, (v) $2,600,000 from July 1, 1996 through September
29, 1996, (vi) $2,700,000 from September 30, 1996
through October 30, 1996, (vii) $3,600,000 from October
31, 1996 through December 30, 1996, (viii) $3,800,000
from December 31, 1996 through January 30, 1997, (ix)
$4,200,000 from January 31, 1997 through June 29, 1997
and (x) $3,500,000 on June 30, 1997 and thereafter, and
(2) loans or other advances to Mexican Subsidiary which,
together with the value of all assets transferred to
Mexican Subsidiary by Borrower, at any time outstanding
("Advances to Mexican Subsidiary") does not exceed (i)
$2,200,000 from the
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Amendment Xx. 0 Xxxxxxx Xxxx xxxxxxx Xxxx 00, 0000 (xx)
$2,800,000 from July 1, 1997 through September 30, 1997,
(iii) $3,300,000 from October 1, 1997 through December
31, 1997, (iv) $3,500,000 from January 1, 1998 through
March 31, 1998 (v) $4,000,000 on April 1, 1998 and
thereafter."
(d) Section 7.2(O) of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"(O) Disposition of Assets. Sell, lease, or otherwise dispose of
any of its Properties to or in favor of any Person, except (i)
sales of Inventory in the ordinary course of Borrower's
business, (ii) sales or other disposals of equipment, (iii)
dispositions expressly authorized by this Agreement, or (iv)
transfers to AVE and Mexican Subsidiary the value of which
together with all loans and advances made by Borrower to AVE and
Mexican Subsidiary is permitted under subsection 7.2(B)."
(e) Section 7.3 of the Loan Agreement is hereby amended by adding a
new subsection (C) to provide as follows:
"(C) Cash Charge Coverage Ratio. Maintain a Cash Charge
Coverage Ratio of not less than:
(i) .60 to 1.0 for the four consecutive fiscal quarter
periods ending on June 30, 1997 and September 30, 1997;
(ii) .75 to 1.0 for the four consecutive fiscal quarter
periods ending on December 31, 1997;
(iii) 1.0 to 1.0 for each four consecutive fiscal
quarter periods ending thereafter."
3. Conditions of Effectiveness. This Amendment shall become
effective upon satisfaction of the following conditions precedent: (i) Lender
shall have received four (4) copies of this Amendment executed by Borrower and
such other certificates, instruments, documents, agreements and opinions of
counsel as may be required by Lender or its counsel, and (ii) the Amended and
Restated Term Note, each of which shall be in form and substance satisfactory
to Lender and its counsel.
4. 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
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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.
5. 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, 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.
6. 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.
7. 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.
8. 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.
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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
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Name: Xxxxxx X. Xxxxxxx
Title: President
FLEET CAPITAL CORPORATION
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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AMENDED AND RESTATED TERM NOTE
$2,450,000.00 New York, New York
Dated as of: April 30, 1997
This Amended and Restated Term Note is executed and delivered under and
pursuant to the terms of that certain Loan and Security Agreement dated May 23,
1994 (as has been and may further be amended, restated, supplemented or
modified from time to time the "Loan Agreement") by and between Apparel
Ventures, Inc., a Delaware corporation with its chief executive office and
principal place of business at 000 Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Borrower") and Fleet Capital Corporation (f/k/a Shawmut Capital Corporation)
("Lender"). Capitalized terms not otherwise defined herein shall have the
meanings as provided in the Loan Agreement.
FOR VALUE RECEIVED, Borrower hereby promises to pay to the order of
Lender, at its offices located at 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxx 00000 or at such other place as Lender may from time to time
designate to Borrower in writing:
(i) the principal sum of TWO MILLION FOUR HUNDRED FIFTY THOUSAND
and 00/100 Dollars ($2,450,000.00) payable in full on May 23, 1999; and
(ii) interest on the principal amount of this Note from time to time
outstanding, payable, in arrears, on the last day of each month commencing with
the month of December, 1995 and on the last day of each month thereafter at a
rate of interest per annum equal to the Term Loan Rate provided in the Loan
Agreement. In no event, however, shall interest exceed the maximum interest
rate permitted by law. Except as otherwise provided herein, upon and after the
declaration of an Event of Default, and during the continuation thereof,
interest shall be payable at the Default Rate provided in the Loan Agreement.
This Note is the Amended and Restated Term Note referred to in the Loan
Agreement and is secured by the liens granted pursuant to the Loan Agreement
and the Loan Documents, is entitled to the benefits of the Loan Agreement and
the Loan Documents and is subject to all of the agreements, terms and
conditions therein contained.
This Note is subject to mandatory prepayment and may be voluntarily
prepaid, in whole or in part, on the terms and conditions set forth in the Loan
Agreement.
If an Event of Default under Sections 9.1(F) or 9.1(G) of the Loan
Agreement shall occur, then this Note shall immediately become due and payable,
without notice, together with reasonable attorneys' fees if the collection
hereof is placed in the hands of an attorney to obtain or enforce payment
hereof. If any other Event of Default shall occur under the Loan Agreement or
any of the Loan Documents, which is not cured within any applicable grace
period, then this Note may, as provided in the Loan Agreement, be declared
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to be immediately due and payable, without notice, together with reasonable
attorneys' fees, if the collection hereof is placed in the hands of an attorney
to obtain or enforce payment hereof.
This Note is being delivered in the State of New York, and shall be
construed and enforced in accordance with the laws of such state.
Borrower expressly waives any presentment, demand, protest, notice of
protest, or notice of any kind except as expressly provided in the Loan
Agreement.
This Note amends and restates in its entirety (and is given in
substitution for and not in satisfaction of) the Amended and Restated Term Note
dated December 5, 1995 made by Borrower in favor of Lender in the original
principal amount of $2,450,000.
APPAREL VENTURES INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: President
STATE OF CALIFORNIA,
ss.: [SEAL]
COUNTY OF LOS ANGELES
On the 30th day of April, 1997, before me personally came Xxxxxx X.
Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he is
the ___________________ of Apparel Ventures, Inc., the corporation described in
and which executed the foregoing instrument; and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ DARYLLA X. XXXXXX
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Notary Public
