EXHIBIT 10.4.4
Date: 5/21/98
Mossimo, Inc.
0 Xxxxxxx
Xxxxxx, XX 00000
Gentlemen:
Reference is made to the Factoring Agreement between us dated January 2,
1990, as supplemented and amended (herein the Agreement ).
Pursuant to mutual understanding, effective April 1, 1998, the Agreement is
amended to provide as follows:
1. Paragraph 13 of the Agreement is deleted in its entirety and the following
is inserted in lieu thereof:
"13. Interest is charged as of the last day of each month based on the
daily debit balances in your Funds In Use account for that month, at a rate
equal to one-half of one percent (.50%) plus the Chase Prime Rate (defined
below) per annum. The Chase Prime Rate is the per annum rate of interest
publicly announced by The Chase Manhattan Bank (or its successor) in New
York, New York from time to time as its prime rate, and is not intended to be
the lowest rate of interest charged by The Chase Manhattan Bank to its
borrowers. Any change in the rate of interest hereunder due to a change in
the Chase Prime Rate will take effect as of the first of the month following
such change in the Chase Prime Rate. Interest will be credited as of the
last day of each month based on the daily credit balances in your Funds In
Use account for that month, at a rate three percent (3%) per annum below the
Chase Prime Rate being used to calculate interest for the period. All
interest is calculated on a 360 day year. In no event will interest charged
hereunder exceed the highest lawful rate. In the event, however, that we do
receive interest in excess of the highest lawful rate, you agree that your
sole remedy would be to seek repayment of such excess, and you irrevocably
waive any and all other rights and remedies which may be available to you
under law or in equity."
2. Paragraph 14 of the Agreement is deleted in its entirety.
3. The commission rate as set forth in paragraph 15 of the Agreement shall be
increased from six-tenths of one percent (.60%) to seven-tenths of one percent
(.70%) on the gross face amount of all Accounts factored with us during each
month, less trade and cash discounts.
4. The fourth sentence of Paragraph 17 of the Agreement is deleted in its
entirety, and the following is inserted in lieu thereof:
"As used herein, the term "Anniversary Date" shall mean June 1, 2000 and the
same date in every year thereafter."
Except as herein specifically provided, no other change in the terms or
provisions of the Agreement is intended or implied. If the foregoing is in
accordance with your understanding of our agreement kindly so indicate by
signing and returning to us the enclosed copy of this letter.
Very truly yours,
THE CIT GROUP/
COMMERCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Vice President:
Read and Agreed To:
MOSSIMO, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title:
