EXHIBIT 10.21
FTC
COMMERCIAL CORP.
As of January 1, 2006
Blue Holdings, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
This Amendment No. 3 to Factoring Agreement (this "Amendment") is
entered into as of January 1, 2006 by and between FTC COMMERCIAL CORP. ("FTC",
"we" or "us") and BLUE HOLDINGS, INC. ("Client" or "you"), with reference to the
following:
A. FTC and Client are parties to a Factoring Agreement dated July
25, 2005 (as amended, the "Factoring Agreement"), the provisions of which are
incorporated into this Amendment.
B. FTC and Client desire to amend the Factoring Agreement, as set
forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Initially capitalized terms used herein which are not
otherwise defined shall have the meanings assigned to them in the Factoring
Agreement.
2. The first sentence of the first subsection of Section 23 of
the Factoring Agreement entitled "FACTORING COMMISSION" is hereby amended to
read as follows:
You shall pay us a commission in an amount equal to (a) four
tenths of one percent (0.40%) of the net amount of each
client's risk account and (b) three quarters of one percent
(0.75%) of the net amount of each account which is approved by
us; provided, however, that: (i) if the aggregate net amount
of Combined Assigned Approved Accounts (the aggregate net
amount of (A) approved accounts assigned to us by you under
this Agreement PLUS (B) approved accounts assigned to us by
Antik Denim, LLC under the Factoring Agreement between Antik
Denim, LLC and us dated October 18, 2004, as amended, PLUS (C)
approved accounts assigned to us by Taverniti So Jeans, LLC
under the Factoring Agreement between Taverniti So Jeans, LLC
and us dated November 22, 2004, as amended) during a calendar
year (the twelve month period from January 1, 2006 through
December 31, 2006 or any twelve month period thereafter)
exceeds $10,000,000 but is less than or equal to $20,000,000,
the commission on each approved account assigned by you to us
under this Agreement during such calendar year in excess of
said
$10,000,000 up to said $20,000,000 shall be seven tenths of
one percent (0.70%) of the net amount of such approved
account, and (ii) if the aggregate net amount of Combined
Assigned Approved Accounts during such calendar year exceeds
$20,000,000 but is less than or equal to $30,000,000, the
commission on each approved account assigned by you to us
under this Agreement during such calendar year in excess of
said $20,000,000 up to said $30,000,000 shall be sixty-five
hundredths of one percent (0.65%) of the net amount of each
such approved account, and (iii) if the aggregate net amount
of Combined Assigned Approved Accounts during such calendar
year exceeds $30,000,000, the commission on each approved
account assigned by you to us under this Agreement during such
calendar year in excess of said $30,000,000 shall be six
tenths of one percent (0.60%) of the net amount of each such
approved account.
3. Except as amended hereby, the Factoring Agreement shall remain
in full force and effect and unmodified. Client hereby reaffirms each and every
one of Client's representations, warranties and covenants under the Factoring
Agreement.
4. Any reference in the Factoring Agreement to "this Agreement",
"herein", "hereunder" or words of similar meaning shall mean the Factoring
Agreement as amended by this Amendment.
5. Client hereby represents and warrants to FTC that this
Amendment has been duly authorized by all necessary action on the part of Client
and constitutes a valid and legally binding obligation of Client, enforceable
against Client in accordance with its terms.
6. This Amendment shall be governed by the laws of the State of
California without regard to the conflicts of law principles thereof.
7. The Factoring Agreement, as amended by this Amendment,
constitutes the entire agreement between Client and FTC as to the subject matter
hereof and may not be altered or amended except by written agreement signed by
Client and FTC. No provision hereof may be waived by FTC except upon written
waiver executed by FTC.
8. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
Sincerely, AGREED:
FTC COMMERCIAL CORP. BLUE HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxx
By:____________________________ By:_____________________________
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
Title: President Title: CFO
