EXHIBIT (10)(P)(2)
FIRST AMENDMENT TO FINANCING AGREEMENT
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THIS FIRST AMENDMENT TO FINANCING AGREEMENT (the First Amendment), is
executed in the place(s) and on the date(s) stated below, between GLAMOURETTE
FASHION XXXXX, INC. (Borrower), a corporation organized and existing under the
laws of the State of Delaware duly authorized to do business in the Commonwealth
of Puerto Rico; and BANCO POPULAR DE PUERTO RICO (the Bank), a banking
corporation organized and existing under the laws of the Commonwealth of Puerto
Rico.
WITNESSETH
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WHEREAS, Borrower and the Bank are parties to a certain Financing
Agreement dated as of June 1, 1995 and executed under Affidavit number
16,053 before Notary Public Xxxx X. Xxxxx Xxxxxx (the Agreement);
WHEREAS, Borrower and the Bank desire to amend the Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein contained, the parties hereto agree as follows:
1. Any term not otherwise herein defined shall have the respective meaning
accorded to such term under the Agreement as amended. Any reference to the
Agreement shall be deemed to be a reference to the Agreement as hereby amended.
2. Section 1 of the Agreement is amended to add the following
definitions:
(i) LIBOR RATE - shall mean as of any particular Interest Pricing Date,
the offered quotation for the rate of interest (expressed out to the third
decimal place and truncated thereafter) on three-month deposits of United States
dollars in the London Interbank Market, as published by Telerate Systems, Inc.)
at approximately 9:00 a.m. (Eastern Standard time) on such date. If, as of any
Interest Pricing Date, LIBOR cannot be ascertained on the foregoing basis, such
rate shall be the offered quotation to leading banks in the London Interbank
Market for three-month deposits of United States Dollars at 9:00 a.m. (Eastern
Standard time) on the date in question.
3. Section 3 of the Agreement is amended to include a third term loan in the
principal sum of $579,677.51 (the Third Term Loan) which the Bank has agreed to
advance to Borrower. Principal on the Third Term Loan shall be payable in fifty
nine (59) equal, consecutive and monthly installments in the principal sum of
$9,622.00 each, plus accrued interest, and a final payment on the 60th
installment for the pending balance of $9,619.51, plus accrued interest.
The Second Term Loan shall be used by Borrower to finance the acquisition
of machinery and equipment related to the upcoming expansion to the plant.
4. The Third Term Loan shall be evidenced by a Promissory Note (the Third
Promissory Note) to be issued and delivered concurrently with the disbursement
of the Second Term Loan. Borrower shall pay interest on the outstanding balance
of the Third Term Loan since its disbursement date at a fluctuating rate
equivalent to 1.75% over the cost to the Bank of funds at the Libor Rate.
Provided that the cost to the Bank of funds at the Libor Rate shall be revised
and determined exclusively by the Bank and notified to Borrower.
5. Section 3.03 is amended to establish that Borrower shall pay to the Bank,
upon the execution of this First Amendment, an additional commitment fee
equivalent to 1/2% of the total principal amount of Term Loan 3.
6. The payment of all obligations arising from the Third Term Loan and from the
Agreement shall be secured by the collateral and by an additional chattel
mortgage note in the principal sum of $579,677.51 subscribed and delivered in
pledge by Borrower on this same date.
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7. Except as expressly amended and modified hereby, the Agreement shall continue
to be and shall remain in full force and effect in accordance with its terms.
The appearing parties expressly and affirmatively state that it is their
intention that the First Amendment shall not constitute in any manner the
novation of the original Agreement nor of any of the legal instruments related
thereto. Borrower hereby agrees that the Loan Documents shall remain in full
force and effect and the Collateral security provided therein shall be made
extensive to all of Borrower's indebtedness under the Agreement as hereby
amended by the First Amendment.
IN WITNESS WHEREOF, the parties execute this First Amendment in the place
and on the date(s) mentioned herein below.
BANCO POPULAR DE PUERTO RICO
/s/ Xxxxx Xxxxxx Xxxxxx Xxxxxx
---------------------------------------
By: Xxxxx Xxxxxx Xxxxxx Xxxxxx
Authorized Officer
GLAMOURETTE FASHION XXXXX, INC.
/s/ Xxx Xxxxxxx
--------------------------------------
By: Xxx Xxxxxxx
Authorized Officer
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AFFIDAVIT NUMBER: 16,665
Subscribed to before me by Xx. Xxx Xxxxxxx, of legal age, married,
executive and resident of Murfreesboro, Tennessee, as Authorized Officer of
GLAMOURETTE FASHION XXXXX, INC.; and Xxx. Xxxxx Xxxxxx Xxxxxx Xxxxxx, of legal
age, married, banker, and resident of San Xxxx, Puerto Rico, as Authorized
Officer of BANCO POPULAR DE PUERTO RICO, both personally known to me in San
Xxxx, Puerto Rio, this 16th day of September, 1996.
/s/ Xxxx X. Xxxxx Xxxxxx
-------------------------------
NOTARY PUBLIC
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CHATTEL MORTGAGE NOTE
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AMOUNT: $579,677.51
MATURITY: ON DEMAND
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay to the
order of BANCO POPULAR DE PUERTO RICO, ON DEMAND, THE PRINCIPAL SUM OF FIVE
HUNDRED SEVENTY SEVEN DOLLARS AND FIFTY ONE CENTS ($579,677.51) in lawful money
of the United States of America, with interest thereon from the date hereof and
until payment in full at a fluctuating annual rate equivalent to the rate of
interest published in general circulation newspapers such as The Wall Street
Journal as the base rate charged by the largest commercial banks in the United
States of America (the Prime Rate). Provided, that in the event of more than one
such published rate on any given en date, the highest of such rates that legally
may be charged to the undersigned in accordance with the applicable laws and
regulations shall apply. Changes in the interest rate will be effective on the
announced effective date of any change in the Prime Rate subject to applicable
laws and regulations.
In the event of recourse to the courts to enforce collection of the whole
or any portion of the amount of this note, the undersigned agrees to pay at the
time of filing of proceedings to enforce collection the liquidated amount of
FIFTY EIGHT THOUSAND DOLLARS ($58,000.00) to cover court costs, expenses and
reasonable attorneys' fees.
Payment of this note has been secured by a chattel mortgage lien on the
personal property described in affidavit number 16,668, executed on this same
date before Notary Public Xxxx X. Xxxxx Xxxxxx.
Presentation for payment, protest, notice of default or nonpayment as well
as any statute of limitations that may benefit the undersigned are hereby
expressly waived.
San Xxxx, Puerto Rico, this 16th day of September, 1996.
GLAMOURETTE FASHION XXXXX, INC.
/s/ Xxx Xxxxxxx
---------------------------------
Xxx Xxxxxxx
Authorized Officer
AFFIDAVIT NUMBER 16,667
Subscribed to before me by Xx. Xxx Xxxxxxx, of legal age, married, executive and
resident of Murfreesboro, Tennessee, in his capacity as Authorized Officer of
GLAMOURETTE FASHION XXXXX, INC., personally known to me at San Xxxx, Puerto
Rico, this 16th day of September, 1996.
/s/ Xxxx X. Xxxxx Xxxxxx
---------------------------------
Notary Public
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CHATTEL MORTGAGE
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THIS CHATTEL MORTGAGE (the Mortgage) made and granted this 16th day of
September, 1996 by GLAMOURETTE FASHION XXXXX, INC. (Employer's Social Security
Number 02-033-3517) (hereinafter referred to as the Mortgagor), a corporation
organized and existing under the laws of the State of Delaware, duly authorized
to do business in the Commonwealth of Puerto Rico, with principal offices in
Quebradillas, Puerto Rico, represented herein by is Authorized Officer, MISTER
XXX XXXXXXX, of legal age, married, executive and a resident of Murfreesboro,
Tennessee, to and in favor of BANCO POPULAR DE PUERTO RICO (Employer's Social
Security Number 66-01705278) (Mortgagee), a banking corporation organized under
the laws of the Commonwealth of Puerto Rico, with principal offices at Popular
Center Building in the Hato Xxx Xxxx of the Municipality of San Xxxx, Puerto
Rico, represented herein by its Authorized Officer, XXX. XXXXX XXXXXX XXXXXX
XXXXXX, of legal age, married, a banker and a resident of San Xxxx, Puerto Rico.
WITNESSETH
-------------------
That the said Mortgagor hereby mortgages in favor of the Mortgagee, and
hereby creates a mortgage lien upon all of the personal property described in
Schedule A (the Mortgaged Property) attached hereto and made a part hereof and
located at Xxxxx Xxxx 000, Xx. 00.0, Xxxxxxxxxxxx, Xxxxxx Xxxx, now in the
possession of the Mortgagor and with a value of $579,677.51.
The Mortgage is given and granted as security for the payment to the
Mortgagee, of a mortgage note of even date herewith issued to is order, in the
principal amount of $579,677.51, payable on demand (the Mortgage Note), bearing
interest at a fluctuating annual rate equivalent to the rate of interest
published in general circulation newspapers such as The Wall Street Journal as
the prime rate charged by the principal commercial banks in the City of New
York, New York (the Prime Rate). A certified photocopy of the Mortgage Note is
attached hereto and made a part hereof as Schedule B.
All the terms conditions and stipulations set forth in the Mortgage Note
are made a part of the Mortgage. Upon the occurrence of an event of default of
Borrower under the Mortgage, the Mortgage Note or any obligation for which the
Mortgage Note shall have been pledged, and such event of default shall continue
after any applicable grace, notice or cure period, the obligation hereby secured
shall become due and payable, and in any such event the Mortgagee shall be
entitled to take recourse to the courts to obtain payment of the amounts owed
and/or to foreclose the Mortgage.
The Mortgagor and the Mortgagee further agree, covenant and stipulate as
follows:
1. The mortgage shall at all times constitute security to the person therein
designated as payee, and said security shall at all time inure to the benefit of
the holder or holders of the Mortgage Note, and the heirs, executors,
administrators and assigns of the person in the Mortgage Note designated as
payee, and/or the heirs, executors, successors, administrators and assigns
thereof.
2. The Mortgage shall constitute, and shall at all times be deemed to constitute
security for the payment of the Mortgage Note additional to any and all security
which may have been given heretofore or which may be given or granted in the
future, by the Mortgagor, or by any other party or parties.
3. The Mortgagor agrees to pay on time any and all taxes assessed or that may be
assessed on the Mortgaged Property; to pay on time any and all taxes assessed or
that may be assessed on the mortgaged Property by reason of the purchase, sale,
use or importation thereof and to furnish evidence to the Mortgagee, upon
request, of payment of all such taxes.
4. The mortgagor shall insure, and shall at all times during the life of this
Agreement keep the Mortgaged Property insured, for the market value thereof,
against such insurable risks as the Mortgagee shall reasonably require. all such
insurance shall be placed in an insurance company or companies satisfactory to
the Mortgagee. All rights and benefits of the Mortgagor under the insurance
policies shall be duly assigned to the Mortgagee by means of the necessary
endorsements, of all said insurance policies shall at all times be in the
possession of the Mortgagee.
5. Any compensation, judgment or decree for damages to the Mortgaged Property,
and all compensation granted by virtue of condemnation proceedings, or any other
kind of judicial proceedings, is hereby irrevocably assigned to the Mortgagee.
The mortgagee is hereby authorized to receive all such compensation, as such as
any amounts granted by any judgment or decree, and to issue all such receipts,
releases and acknowledgments of payment as may be required, and shall apply all
such compensation and amounts to the satisfaction of all of Mortgagor's
indebtedness to the Bank.
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6. The Mortgagor hereby waives any and all rights or exemption from attachment
and execution provided for in any law or statue of the Commonwealth of Puerto
Rico.
7. The Mortgage secures the payment of the principal of the Mortgage
Note; interest up to the amount of $58,000.00 and a credit for expenses,
costs, disbursements and attorneys' fees in the amount of $58,000.00
8. Mortgagor admits and acknowledges that this instrument has been signed and
executed after all the agreements, covenants and stipulations of the parties
hereto were set forth in writing, and that upon the signing and execution of
this instrument a true and faithful copy hereof was received by the Mortgagor.
9. The conditions of this obligation are that if the Mortgagor shall perform the
conditions above stated according to their terms, then this obligation shall be
without force and effect.
EXECUTED in the Municipality of San Xxxx, Commonwealth of Puerto Rico,
this 16th day of September, 1996.
BANCO POPULAR DE PUERTO RICO
/s/ Xxxxx Xxxxxx Xxxxxx Xxxxxx
-------------------------------
By: Xxxxx Xxxxxx Xxxxxx Xxxxxx
Authorized Officer
/s/ Xxxxxx Xxxxxx
--------------------------------
Witness
GLAMOURETTE FASHION XXXXX, INC.
/s/ Xxx Xxxxxxx
--------------------------------
By: Xxx Xxxxxxx
Authorized Officer
/s/ Xxxxx Xxxxxxxxx
--------------------------------
Witness
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SWORN STATEMENT
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XX. XXX XXXXXXX being duly sworn according to law, deposes and says:
That I am an Authorized Officer of GLAMOURETTE FASHION XXXXX, INC.
and duly authorized to execute this instrument.
That GLAMOURETTE FASHION XXXXX, INC. is the legal and absolute owner of
the personal property described in the preceding Mortgage, of which Mortgage
this sworn declaration is a part; that the Mortgaged Property is free from all
claims, liens or charges, except the Mortgage of which this sworn declaration is
a part; that there does not exist any judgment, or orders of execution against
the Mortgagor that may affect the title of the personal property described in
the Mortgage; and that the Mortgage is granted for the purpose of securing the
obligation described therein and constitutes a just and valid obligation.
/s/ Xxx Xxxxxxx
----------------------------
Deponent
AFFIDAVIT NO. 16,668
Sworn and subscribed to before me by XX. XXX XXXXXXX, of legal age,
married, executive and resident of Murfreesboro, Tennessee, as Authorized
Officer of GLAMOURETTE FASHION XXXXX, INC., personally known to me at San Xxxx,
Puerto Rico, this 16th day of September, 1996.
/s/ Xxxx X. Xxxxx Xxxxxx
---------------------------------
Notary Public
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SCHEDULE A
GLAMOURETTE FASHION XXXXX, INC.
CAPITAL ASSETS
AS OF 08/23/96
ASSETS SERIAL CAPITAL
NO. DESCRIPTION NO. SUPPLIER VALUE
-----------------------------------------------------------------------------
53952 PADDLE MACHINE 700 LBS. 2100 CTM. INC. $40,493.59
53983 PADDLE MACHINE 700 LBS. 2101 CTM. INC. 36,801.43
53984 PADDLE MACHINE 700 LBS. 2102 CTM. INC. 36,801.44
53985 PADDLE MACHINE 700 LBS. 2103 CTM. INC. 36,801.44
53986 PADDLE MACHINE 700 LBS. 2104 CTM. INC. 36,801.44
53996 PADDLE MACHINE 700 LBS. 2105 CTM. INC. 35,683.76
53997 PADDLE MACHINE 700 LBS. 2106 CTM. INC. 35,683.77
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SUBTOTAL 259,068.87
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XXXXXXXX TRANSROBOT 2 E14 1290 XXXXXXXX 39,105.21
XXXXXXXX TRANSROBOT 2 E14 1248 XXXXXXXX 39,105.21
XXXXXXXX TRANSROBOT 2 E14 1119 XXXXXXXX 15,615.21
XXXXXXXX TRANSROBOT TR-2 1088 XXXXXXXX 22,392.50
XXXXXXXX TRANSROBOT TR-2 1089 XXXXXXXX 22,392.51
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SUBTOTAL 138,610.64
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XXXXXXXX XX 9GG 36" 1924 TEXTILE MACH. 36,400.00
XXXXXXXX XX 9GG 36 592 TEXTILE MACH. 36,400.00
XXXXXXXX XX 9GG 32" 1756 TEXTILE MACH. 36,400.00
XXXXXXXX BSI 9GG 2900 TEXTILE MACH. 36,400.00
XXXXXXXX BSI 9GG 2901 TEXTILE MACH. 36,400.00
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SUBTOTAL 182,000.00
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TOTAL $579,677.51
==========
Machines purchased to Textile Machinery to be delivered during
September/October & November, 1996. $91,000.00 ... 50% of its value paid
with the purchase order.
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SCHEDULE B
CHATTEL MORTGAGE NOTE
---------------------------------------
AMOUNT: $579,677.51
MATURITY: ON DEMAND
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay to the
order of BANCO POPULAR DE PUERTO RICO, ON DEMAND, THE PRINCIPAL SUM OF FIVE
HUNDRED SEVENTY SEVEN DOLLARS AND FIFTY ONE CENTS ($579,677.51) in lawful money
of the United States of America, with interest thereon from the date hereof and
until payment in full at a fluctuating annual rate equivalent to the rate of
interest published in general circulation newspapers such as The Wall Street
Journal as the base rate charged by the largest commercial banks in the United
States of America (the Prime Rate). Provided, that in the event of more than one
such published rate on any given en date, the highest of such rates that legally
may be charged to the undersigned in accordance with the applicable laws and
regulations shall apply. Changes in the interest rate will be effective on the
announced effective date of any change in the Prime Rate subject to applicable
laws and regulations.
In the event of recourse to the courts to enforce collection of the whole
or any portion of the amount of this note, the undersigned agrees to pay at the
time of filing of proceedings to enforce collection the liquidated amount of
FIFTY EIGHT THOUSAND DOLLARS ($58,000.00) to cover court costs, expenses and
reasonable attorneys' fees.
Payment of this note has been secured by a chattel mortgage lien on the
personal property described in affidavit number 16,668, executed on this same
date before Notary Public Xxxx X. Xxxxx Xxxxxx.
Presentation for payment, protest, notice of default or nonpayment as well
as any statute of limitations that may benefit the undersigned are hereby
expressly waived.
San Xxxx, Puerto Rico, this 16th day of September, 1996.
GLAMOURETTE FASHION XXXXX, INC.
/s/ Xxx Xxxxxxx
---------------------------------
Xxx Xxxxxxx
Authorized Officer
AFFIDAVIT NUMBER 16,667
Subscribed to before me by Xx. Xxx Xxxxxxx, of legal age, married, executive and
resident of Murfreesboro, Tennessee, in his capacity as Authorized Officer of
GLAMOURETTE FASHION XXXXX, INC., personally known to me at San Xxxx, Puerto
Rico, this 16th day of September, 1996.
/s/ Xxxx X. Xxxxx Xxxxxx
---------------------------------
Notary Public
PLEDGE AGREEMENT
Pursuant to a certain Financing Agreement (the "Agreement") entered into
on June 1, 1995, as amended, by and between GLAMOURETTE FASHION XXXXX, INC.
(Borrower) and BANCO POPULAR DE PUERTO RICO (the Bank), the undersigned hereby
pledges, assigns, delivers and transfers to the Bank the following collateral
security:
(i) Chattel Mortgage Note in the principal sum of $579,677.51 payable to
the order of the Bank, guaranteed with chattel mortgage constituted pursuant to
affidavit number 16,668 executed on this same date before Notary Public Xxxx X.
Xxxxx Xxxxxx.
All capitalized terms not otherwise defined herein shall have the
respective meaning assigned to them in the Agreement. Upon an occurrence of an
Event of Default of Borrower under the Agreement or in any other agreement with
the Bank (the other Agreements), then and in any such event the amounts owed to
the Bank pursuant to the Agreement and the other Agreements shall forthwith
become due and payable without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived.
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The Mortgage securing the payment of the Mortgage Note herein delivered in
pledge shall remain in full force and effect until Borrower pays in its entirety
all the sums owed to the Bank under the Agreement and under the other Agreements
together with the interest. provided, that in the event of noncompliance by
Borrower in the performance of any obligation with the Bank under the Agreement
and under the other Agreements, it shall empower the Bank to foreclose directly
any of the Mortgage securing the payment of the Mortgage Note and collect the
amounts owed without it being necessary to foreclose first the pledge herein
delivered.
In aid of the rights granted to the Bank hereof it is further stipulated
and agreed by the parties that the Bank, as holder for value and in due course
of the Mortgage Note delivered in pledge, is hereby vested with an interest
thereto, with full power to pass such interest to any persons, by delivery or
endorsement, and the Bank or any other holder of the said Mortgage Note may
collect the same in their own name by judicial proceedings or otherwise, and by
foreclosure of the Mortgage securing their payment simultaneously with
foreclosure on the pledge.
Borrower agrees to deliver to the Bank additional collateral security
acceptable to the Bank, or to make payments on account to is satisfaction,
should the market value of all such collateral held by the Bank at any time
suffer any decline. Borrower hereby gives to the Bank a lien for the amount for
all such obligations and liabilities upon all securities or other property now
or at any time hereafter given unto or left in the possession of the Bank by
Borrower, whether for the express purpose of being used by the Bank as
collateral security, or for any other or different purpose and also upon any
balance of any deposit account of Borrower with the Bank.
No failure or delay on the part of the Bank in exercising any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise or the exercise of any other right, power or remedy hereunder
or under any other agreement or applicable law. The remedies provided by law or
in any other agreement.
No amendment, modification, termination, or waiver of any provision of
this Pledged Agreement nor consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be in writing and signed
by the Bank, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
This Pledge Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Puerto Rico. Any provision of it which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceablity without invalidating the remaining provisions
hereof or thereof.
Whenever used xxxxx, the singular number shall include the plural, the
plural the singular, and the use of any gender shall be applicable to all
genders.
This Pledge Agreement constitutes the entire agreement between the
parties. None of the terms, conditions or provisions contained in this Agreement
may by changed, modified or deleted, except by an instrument executed by the
parties.
IN WITNESS WHEREOF, the parties execute this Agreement at San Xxxx, Puerto
Rico, on the date mentioned hereinbelow.
GLAMOURETTE FASHION XXXXX, INC.
By:/s/ Xxx Xxxxxxx
------------------------------------
Xxx Xxxxxxx
Officer Authorized
AGREED AND ACCEPTED:
BANCO POPULAR DE PUERTO RICO
By:/s/ Xxxxx Xxxxxx Xxxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx Xxxxxx Xxxxxx
Authorized Officer
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AFFIDAVIT NO.: 16,666
Subscribed to before me by Xx. Xxx Xxxxxxx, of legal age, married,
executive and resident of Murfreesboro, Tennessee, as Authorized Officer of
GLAMOURETTE FASHION XXXXX, INC.; and by Xxx. Xxxxx Xxxxxx Xxxxxx Xxxxxx, of
legal age, married, a banker and resident of Guaynabo, Puerto Rico, as
authorized officer of BANCO POPULAR DE PUERTO RICO, both personally known to me
at San Xxxx, Puerto Rico, this 16th day of September, 1996.
/s/ Xxxx X. Xxxxx Xxxxxx
---------------------------------
Notary Public
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