EXHIBIT 10.13
FTC
COMMERCIAL CORP.
As of January 1, 2006
Antik Denim, LLC.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
This Amendment "3" to Inventory Loan Facility Agreement (this
"Amendment") is entered into as of January 1, 2006 by and between FTC COMMERCIAL
CORP. ("FTC", "we" or "us") and ANTIK DENIM, LLC ("Client" or "you"), with
reference to the following:
A. FTC and Client are parties to an Inventory Loan Facility
Agreement dated as of July 25, 2005 (as amended, the "Facility
Agreement"), the provisions of which are incorporated into
this Amendment.
B. FTC and Client desire to amend the Facility Agreement,
effective as of the date hereof, 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 Facility Agreement.
2. The definition of "Inventory Base" is hereby amended in its
entirety to read as follows:
"Inventory Base" means up to fifty percent (50%) of the value
(the lesser of cost or market) of the Company's raw material
and finished goods Inventory which FTC determines, in its sole
discretion, to be eligible for inclusion in the Inventory
Base. Without limiting the generality of the foregoing, the
following Inventory shall not be eligible for inclusion in the
Inventory Base if (i) such Inventory is over one hundred
eighty (180) days old; (ii) such Inventory is defective or
damaged; (iii) such Inventory is not located at the Company's
premises at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000; (iv) such Inventory is located at any real property
leased by the Company or at any contract warehouse, unless
such Inventory is subject to a collateral access agreement
acceptable to FTC and executed by the lessor or warehouseman,
as the case may be, and unless such Inventory is separately
identifiable from the goods of others, if any, stored on the
premises; (v) the Company does not have good, valid, and
marketable title to such Inventory; (vi) such Inventory is not
subject to a valid and perfected first priority security
interest in favor of FTC; (vii) such Inventory consists of
xxxx and hold goods or goods acquired on consignment or (viii)
such Inventory consists of work in process.
3. The first paragraph which follows the definition of
"Obligations" is hereby amended in its entirety to read as
follows:
This Agreement shall confirm our mutual understanding and
agreement that, subject to the terms and conditions of the
Company Agreements, and provided that no default or Event of
Default under any of the Company Agreements and no termination
of the Factoring Agreement has occurred, FTC may, in its sole
and absolute discretion, extend an inventory loan facility to
the Company in an aggregate principal amount outstanding at
any time not to exceed the lesser of (a) the Inventory Base or
(b) up to $2,400,000 minus (i) the aggregate amount of then
outstanding inventory loans made to TAVERNITI SO JEANS, LLC
("Taverniti") under the Inventory Loan Facility Agreement
between Taverniti and FTC dated as of October 31, 2005 (as
amended, the "Taverniti Facility Agreement") and MINUS (ii)
the aggregate amount of then outstanding inventory loans made
to Blue Holdings, Inc. ("BHI") under the Inventory Loan
Facility Agreement between BHI and FTC dated July 25, 2005 (as
amended, the "BHI Facility Agreement"). The interest rate
charged on outstanding inventory loans under this Agreement
will be the same rate charged in Section 23 of the Factoring
Agreement and will be calculated, computed and payable in
accordance with the provisions of Section 23.
4. Except as amended hereby, the Facility 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 Facility Agreement.
5. Any reference in the Facility Agreement to "this Agreement",
"herein", "hereunder" or words of similar meaning shall mean
the Facility Agreement as amended by this Amendment.
6. 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.
7. This Amendment shall be governed by the laws of the State of
California without regard to the conflicts of law principles
thereof.
8. The Facility 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.
9. 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. ANTIK DENIM, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxx
-------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
Title: President Title: CFO
AGREEMENT AND REAFFIRMATION BY GUARANTOR
The undersigned has executed a Guaranty dated October 18, 0000 (xxx "Xxxx
Guaranty") in connection with the Factoring Agreement between ANTIK DENIM, LLC
(the "Company") and FTC COMMERCIAL CORP. ("FTC") dated October 18, 2004, the
Inventory Loan Facility Agreement between the Company and FTC dated July 25,
2005 and various related instruments and documents (collectively, the "Company
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Agreements"). The undersigned agrees that the Guez Guaranty shall apply to all
obligations of the Company under the above Amendment and the Company Agreements.
The undersigned hereby reaffirms the Guez Guaranty and agrees that no provisions
of the above Amendment shall in any way limit any of the terms or provisions of
the Guez Guaranty or any other documents executed by the undersigned in favor of
FTC, all of which are hereby ratified and affirmed and the same shall continue
in full force and effect in accordance with the provisions hereof.
/s/ Xxxx Xxxx
----------------------------
Xxxx Xxxx
AGREEMENT AND REAFFIRMATION BY GUARANTOR
The undersigned has executed a Guaranty dated October 18, 2004 (the "Trust
Guaranty") in connection with the Factoring Agreement between ANTIK DENIM, LLC
(the "Company") and FTC COMMERCIAL CORP. ("FTC") dated October 18, 2004, the
Inventory Loan Facility Agreement between the Company and FTC dated July 25,
2005 and various related instruments and documents (collectively, the "Company
Agreements"). The undersigned agrees that the Trust Guaranty shall apply to all
obligations of the Company under the above Amendment and the Company Agreements.
The undersigned hereby reaffirms the Trust Guaranty and agrees that no
provisions of the above Amendment shall in any way limit any of the terms or
provisions of the Trust Guaranty or any other documents executed by the
undersigned in favor of FTC, all of which are hereby ratified and affirmed and
the same shall continue in full force and effect in accordance with the
provisions hereof.
The Xxxx and Xxxxxxxxx Xxxx Living Trust dated
February 13, 1998
/s/ Xxxx Xxxx
----------------------------
Xxxx Xxxx, Trustee
/s/ Xxxxxxxxx Xxxx
----------------------------
Xxxxxxxxx Xxxx, Trustee
AGREEMENT AND REAFFIRMATION BY GUARANTOR
The undersigned has executed a Guaranty dated July 25, 2005 (the "BHI Guaranty")
in connection with the Factoring Agreement between ANTIK DENIM, LLC (the
"Company") and FTC COMMERCIAL CORP. ("FTC") dated October 18, 2004, the
Inventory Loan Facility Agreement between the Company and FTC dated July 25,
2005 and various related instruments and documents (collectively, the "Company
Agreements"). The undersigned agrees that the BHI Guaranty shall apply to all
obligations of the Company under the above Amendment and the Company Agreements
and that such obligations shall be secured by a first lien on and security
interest in all of the assets of the undersigned in which the undersigned has
granted FTC a security interest.
The undersigned hereby reaffirms the BHI Guaranty and agrees that no provisions
of the above Amendment shall in any way limit any of the terms or provisions of
the BHI Guaranty or any other documents executed by the undersigned in favor of
FTC, all of which are hereby ratified and affirmed and the same shall continue
in full force and effect in accordance with the provisions hereof.
BLUE HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------
Print Name: Xxxxxxx Xxxx
Title: CFO
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AGREEMENT AND REAFFIRMATION BY GUARANTOR
The undersigned has executed a Guaranty dated as of October 31, 2005 (the
"Taverniti Guaranty") in connection with the Factoring Agreement between ANTIK
DENIM, LLC (the "Company") and FTC COMMERCIAL CORP. ("FTC") dated October 18,
2004, the Inventory Loan Facility Agreement dated July 25, 2005 and various
related instruments and documents (collectively, the "Company Agreements"). The
undersigned agrees that the Taverniti Guaranty shall apply to all obligations of
the Company under the above Amendment and the Company Agreements and that such
obligations shall be secured by a first lien on and security interest in all of
the assets of the undersigned in which the undersigned has granted FTC a
security interest.
The undersigned hereby reaffirms the Taverniti Guaranty and agrees that no
provisions of the above Amendment shall in any way limit any of the terms or
provisions of the Taverniti Guaranty or any other documents executed by the
undersigned in favor of FTC, all of which are hereby ratified and affirmed and
the same shall continue in full force and effect in accordance with the
provisions hereof.
TAVERNITI SO JEANS, LLC
By: /s/ Xxxxxxx Xxxx
----------------------------
Print Name: Xxxxxxx Xxxx
Title: CFO
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