Exhibit 10.54
FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE entered into as of August 25, 1995, between BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, with an xxxxxx xx Xxxx
Xxxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Lessor"), and FARAH
U.S.A., INC., a Texas corporation, with its principal office at 0000 Xxxxxxx
Xxxx, Xx Xxxx, Xxxxx 00000 ("Lessee"), with reference to the following:
A. Lessor and Lessee have entered into a Lease Intended as Security dated
as of December 8, 1994 (the "Lease"; all terms not otherwise defined herein
being used with their meanings as defined therein); and
X. Xxxxxx and Lessee now desire to amend the Lease as hereinafter set
forth:
X. Xxxxx Incorporated, Value Slacks, Inc. and Farah International, Inc.
have executed that certain Guaranty dated as of December 8, 1994 ("the
Guaranty") guarantying Lessee's obligations under the Lease; and
D. Lessee has requested Lessor amend the Lease and Lessor is willing to
amend the Lease provided Guarantors consent to the amendment; and
E. Guarantors are willing to consent to the amendment set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
AMENDED SECTIONS
SECTION 1.4:
Subsection 1.4(c) is amended to include the following provision:
On or before September 29, 1995, a Letter Agreement executed by Congress
Financial Corporation (Southwest) which explicitly acknowledges that certain
sale/leaseback equipment funded by Lessor on or after December 8, 1994 shall
constitute "priority collateral" as that term is defined in that certain
Intercreditor Agreement between Lessor and Congress Financial Corporation
(Southwest).
Section 1.4 is amended to add a new Subsection 1.4(o) as follows:
"commodatum agreements, declarations or other appropriate documentation to
perfect Lessor's security interests executed by Lessee and each Maquiladora, in
form and substance satisfactory to Lessor, to be filed in such jurisdictions as
deemed appropriate by Lessor on the additional equipment located in Mexico and
Costa Rica.
New Section 1.5 is added as follows:
(a) "Lessee agrees to pay 50% of the cost of perfecting Bank of America's
security interests in the additional equipment set forth in Subsection 1.4(o) on
or before September 29, 1995."
(b) "Lessor agrees to release its lien on certain proceeds in the approximate
amount of $560,000.00 resulting from the sale by Lessee of equipment
located at the Xxxxxxx coat manufacturing facility in Costa Rica, in
consideration for the receipt by Bank of America of $50,056.97 of such
proceeds, together with accrued interest at the Implicit Interest Rate set
forth in Section G of the Appendix to Lease Intended as Security through
the sale closing date. The sum of $50,056.97 represents the value of
equipment funded by Bank of America located at the Xxxxxxx coat
manufacturing facility. "
SECTION 8.1:
Subsection 8.1 (c) of the Lease is deleted in its entirety and
replaced with the following new Subsection 8.1 (c):
"Lessee, any Guarantor or Guarantors fail to observe, perform or be in
compliance with any covenants, agreements or warranties, whether such covenant,
agreement or warranty is in the Lease, any Guaranty or related documents, and
such failure continues for ten (10) days after written notice thereof;"
SECTION B:
Section B of the Appendix to Lease titled "Purchase Price" is amended to delete
"$10,000,000.00" in the third line of the first paragraph and replace it with
"$7,807,616.41 ".
SECTION C:
Section C of the Appendix to Lease titled "Term" is amended to provide that the
"Base Term" as to all units, as such term is defined in Section A of the
Appendix to Lease, shall commence on September 1, 1995. September 1, 1995 shall
be the "Base Date" for all units.
SECTION D:
Section D of the Appendix to Lease titled "Utilization Period" is amended to
state that the Utilization Period has expired.
SECTION 1
Section I of the Appendix to Lease titled "Early Termination" is amended to
allow Lessee the option to terminate this Lease as to all units for a period of
six months commencing on the "Base Date" as defined in amended Section C of the
Appendix to Lease by paying to Bank of America the Balance Due under the Lease.
Should Lessee exercise its option to early terminate during the six month period
commencing on the Base Date, the Lessee shall not be required to pay lessor
"Termination Charges" as defined in Subsection H 2. of the Appendix to Lease.
After the expiration of the six month period commencing on the Base Date, the
lessee termination rights shall be controlled by the original provisions of
Section I including, but not limited to, the obligation to pay applicable
"Termination Charges ".
APPLICABILITY OF UNAFFECTED TERMS OF LEASE
AND RELATED AGREEMENTS
Except as is herein specifically amended, all of the terms, covenants, and
provisions of the Lease and related agreements remain in full force and effect,
and where appropriate, are applicable to this FIRST AMENDMENT TO LEASE.
GENERAL PROVISIONS
GOVERNING LAW:
This FIRST AMENDMENT TO LEASE shall be governed by and construed under
the laws of California. The parties submit to the jurisdiction of the
appropriate state or federal court in California as to any dispute arising out
of or related to either the FIRST AMENDMENT TO LEASE or the Lease.
SEVERABILITY:
Each provision of this FIRST AMENDMENT TO LEASE and the Lease shall be
interpreted in such manner as to be effective and valid under all applicable
laws and regulations. Nevertheless, should any provision be prohibited by or
invalid under any such law or regulation in any jurisdiction, such provision
shall be deemed modified to conform to the minimum requirements of such law or
regulation. If such provision cannot be modified to conform to the requirements
of the law or regulation, such provision shall be ineffective and invalid only
to the extent of the prohibition or invalidity without affecting the remaining
provisions of the FIRST AMENDMENT TO LEASE. Furthermore, the prohibition or
invalidity of a provision in one jurisdiction shall not affect the provision's
validity or effectiveness in any other jurisdiction.
COUNTERPARTS:
Two counterparts of this FIRST AMENDMENT TO LEASE have been executed by
the parties hereto. One counterpart has been prominently marked "Lessor's Copy".
One counterpart has been prominently marked "Lessee's Copy". Only the
counterpart marked "Lessor's Copy" shall evidence a monetary obligation of
Lessee.
INTERPRETATION:
This FIRST AMENDMENT TO LEASE is the result of negotiations between
Lessor and Lessee, and has either been reviewed by each party's counsel or such
party has knowingly and voluntarily chosen not to have its counsel review the
terms. Lessor and Lessee therefore agree that this FIRST AMENDMENT TO LEASE
shall not be construed against either merely because of the involvement of
either party's representatives or counsel in the negotiation, drafting or
revision of the terms contained herein.
HEADINGS:
The headings to the FIRST AMENDMENT TO LEASE are for convenience only.
The headings do not define, limit or describe the scope or intent of the
provisions.
FURTHER AMENDMENTS:
Any further amendments or modifications to either this FIRST
AMENDMENT TO LEASE, the Lease or any related agreements may only be accomplished
by a writing signed by Lessor and Lessee.
RIGHTS AND OBLIGATIONS:
The rights and obligations contained in this FIRST AMENDMENT TO LEASE inure to
the benefit of and bind Lessor, Lessee, their respective representatives,
officers, directors, affiliated entities, successors-in-interest and assigns.
Lessor and Lessee do not intend to confer any rights or impose any obligations
on persons not specifically mentioned in this FIRST AMENDMENT TO LEASE.
ENTIRE AGREEMENT AS TO AMENDED TERMS:
The FIRST AMENDMENT TO LEASE contains the full and complete agreement
of Lessor and Lessee as to the subjects covered by it. The FIRST AMENDMENT TO
LEASE supersedes all prior discussions, understandings, agreements or proposals
regarding the subjects covered by it, regardless whether written or oral.
Neither Lessor nor Lessee have made any representation, promise, inducement or
statement of intention which is not contained in the FIRST AMENDMENT TO LEASE.
Neither Lessor nor Lessee shall be bound or liable for any alleged
misrepresentation, promise, inducement or statement of intention not contained
in the FIRST AMENDMENT TO LEASE, the Lease and related agreements.
ATTORNEY'S FEES AND COSTS:
The prevailing party in any proceeding to construe or enforce the
FIRST AMENDMENT TO LEASE shall recover its reasonable attorney's fees, costs and
expenses, including fees, costs and expenses of internal counsel.
IN WITNESS WHEREOF, the parties hereto have executed this FIRST
AMENDMENT TO LEASE as of the day and year written above.
FARAH U.S.A., INC. BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx By: Xxxxx X. Xxxxxx
Title: Chief Executive Officer Title: Vice President
By: /s/ Xxxxx X. Xxxxx
Title: Treasurer
CONSENTED TO BY:
FARAH INCORPORATED VALUE SLACKS, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
Title: Treasurer Title: Treasurer
FARAH INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxx
Title: Treasurer
