MODIFICATION OF LOAN AGREEMENT
THIS AGREEMENT is made as of the day of , 1996, by and between
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association acting as
Lender and as Agent pursuant to the Loan Agreement (the "Lender"), XXXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Borrower") and XXXXXXXXX
IMPORTS, LTD., a New York corporation (formerly known as Xxxxx Importers, Ltd.)
(the "Guarantor").
WITNESSETH:
WHEREAS, Lender, Borrower and Guarantor entered into a Loan Agreement dated
as of November 22, 1994 as modified by Modification of Loan Agreement dated as
of February 26, 1996 (the "Loan Agreement") in connection with which Lender made
available to Borrower a revolving line of credit in the maximum principal amount
of TWENTY MILLION and no/100s Dollars ($20,000,000.00) (the "Revolving Line of
Credit") evidenced by the Revolving Credit Note, secured and evidenced by the
Xxxxx Guaranty and the other Loan Documents, as defined in the Loan Agreement;
and
WHEREAS, Lender and Borrower have agreed to amend the Loan Agreement to
revise the computation of the Borrowing Base; and
WHEREAS, the Guarantor has agreed to execute this Agreement to evidence its
consent to the amendments to the Loan Agreement contained herein and to affirm
the continuing validity of the Xxxxx Guaranty, after the amendments contained
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants of
this agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lender, Borrower and Guarantor
agree as follows:
1. RECITALS/TERMS. All of the recitals set forth above are true and
correct and by this reference are made a material part of this Agreement. All
capitalized terms used herein which are defined in the Loan Agreement shall have
the same meaning when used herein unless the context shall require otherwise.
2. BORROWING BASE REVISIONS. Section 2.1(b) of the Loan Agreement is
hereby amended to read as follows:
(b) As used herein the term "Borrowing Base" shall mean at any time an
amount equal to:
(i) eighty percent (80%) of the face amount (less maximum discounts,
credits and allowances that may be taken by or granted to Account
Debtors in connection therewith) of Eligible Accounts Receivable due from
Xxxxx Xxxxxx & Sons, Xxxxxx Xxxxxxx & Sons, Xxxxx Xxxxxx Distillers Corp,
Bacardi Imports, Inc. and Southern Wine & Spirits of America, Inc. or
their respective Affiliates to Borrower and sixty percent (60%) of the
face amount (less maximum discounts, credits and allowances that may be
taken by or granted to Account Debtors in connection therewith) of all
other Eligible Accounts Receivable due to the Borrower, the Guarantor and
VIRIL;
(ii) plus thirty percent (30%) of the lower of the cost or the
market value of Eligible Inventory of the Borrower, the Guarantor and
VIRIL other than inventory which is identified for a specific customer
such as labels, boxes and products containing proprietary identification
of a specific customer.
(iii) LESS any Reserves.
Section 2.1(b)(iv) is hereby amended in its entirety to read as follows:
(iv) provided that no Event of Default has occurred hereunder and is
uncured, for a period not to exceed ten (10) consecutive Business
Days beginning (a) at the end of the fiscal quarter of Borrower ending
September 30, 1996, the Borrowing Base may be increased by $5,000,000.00
above the amount computed under items (i), (ii) and (iii) above, and (b)
at the end of each fiscal quarter of Borrower beginning with the fiscal
quarter of Borrower ending December 31, 1996, the
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Borrowing Base may be increased by $2,500,000.00 above the amount
computed under items (i), (ii) and (iii) above, all on the express
condition that the additional credit available by reason of such
temporary increases in the Borrowing Base shall be applied solely to the
reduction of Borrower's Bahamian credit line. Each such ten (10) day
period shall be designated in advance in a written notice from Borrower
to Lender.
3. XXXXX GUARANTY. Guarantor hereby ratifies and confirms the continuing
validity of the Xxxxx Guaranty and any other documents or agreements given by
Guarantor in connection with the Revolving Line of Credit, the Loan Agreement or
any other Loan Documents notwithstanding the amendments to the Loan Agreement
contained herein and hereby further consents to such amendments.
4. NO DEFAULT. Borrower hereby warrants and represents to Lender that,
since the date of the February 26, 1996 Modification of Loan Agreement, Borrower
is in compliance with all provisions of the Loan Agreement and all other Loan
Documents and that no default or Event of Default has occurred thereunder nor
has any event occurred or failed to occur which with the passage of time or the
giving of notice or both would comprise such a default or Event of Default.
5. MISCELLANEOUS.
(a) This agreement shall be governed by and construed in accordance
with the law of the State of Florida. In the event of any dispute hereunder,
the prevailing party shall be entitled to recover all costs and attorney's
fees from the non-prevailing party. Paragraph headings used herein are for
convenience only and shall not be used to interpret any term hereof. The
Loan Agreement shall continue in full force and effect as modified by this
Modification. In the event the terms of this Modification conflict with the
terms of the Loan Agreement, the terms of this Modification shall control.
(b) This Modification constitutes the entire agreement among the
parties hereto and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral among the parties hereto
with respect to the subject matter hereof, all of which prior agreements,
understanding, negotiations and discussions, both written and oral, are
merged into this Modification. Except as hereinabove specifically amended,
all other provisions of the Loan Agreement and each of the other Loan
Documents amended hereby shall remain unchanged and in full force and
effect. Without limiting the generality of any of the provisions of this
Modification, nothing herein or in any instrument or agreement shall be
deemed or construed to constitute a novation, satisfaction or refinancing of
all or any portion of the Loan or in any manner affect or impair the lien or
priority of the Loan Agreement or any of the Loan Documents as amended
hereby.
(c) This Modification may be executed in any number of counterparts
with each executed counterpart constituting an original, but altogether
constituting but one and the same instrument.
(d) This Modification shall be binding upon and inure to the benefit of
the Borrower, the Guarantor and the Lender and their respective heirs, legal
representatives, executors, successors and assigns.
8. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN, EACH
OF THE BORROWER AND THE GUARANTOR HEREBY UNCONDITIONALLY, IRREVOCABLY AND
FOREVER RELEASES, ACQUITS AND DISCHARGES THE LENDER AND EACH OF THE LENDER'S
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL
CLAIMS, DEMANDS AND CAUSES OF ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE
FUTURE HAVE AGAINST ANY ONE OR MORE OF THE LENDER OR ANY ONE OR MORE OF THE
LENDER'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR COUNSEL FOR THE ACTS OR
OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE BEGINNING OF TIME THROUGH, TO
AND INCLUDING THE DATE OF THE EFFECTIVENESS OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANY MANNER WITH
THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE LOAN AGREEMENT, AS AMENDED HEREBY
OR ANY OTHER LOAN DOCUMENTS, AS THE SAME MAY BE AMENDED HEREBY, AS THE CASE MAY
BE.
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9. WAIVER OF JURY TRIAL.
THE BORROWER, THE GUARANTOR AND THE LENDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY AGREEMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS, (WHETHER VERBAL OR WRITTEN) OR
ACTIONS BY ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE LENDER
ENTERING INTO THIS AGREEMENT AND MAKING ANY LOAN, ADVANCE OR OTHER EXTENSION OF
CREDIT TO THE BORROWER. FURTHER, EACH OF THE BORROWER AND THE GUARANTOR HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE LENDER, NOR THE LENDER'S
COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS WOULD NOT, IN
THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. NO REPRESENTATIVE OR AGENT OF THE LENDER, NOR THE LENDER'S COUNSEL
HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, Borrower, Lender and Guarantor have caused this
agreement to be executed as of the day and year set forth above.
Witnesses: LENDER:
FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association
By:
Print Name: Print Name: Xxxxx Xxxxxxxxx
Its: Vice President
Print Name:
AGENT
FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association
By:
Print Name: Print Name: Xxxxx Xxxxxxxxx
Its: Vice President
Print Name:
BORROWER:
TODUNTER INTERNATIONAL, INC., a Delaware
corporation
By:
Print Name: Print Name: A. Xxxxxxx Xxxxxxxx, Xx.
Its: Chairman of the Board of Directors/CEO
Print Name:
XXXXXXXXX IMPORTS, LTD., a New York
corporation (f/k/a Xxxxx Importers, Ltd.)
By:
Print Name: Print Name: A. Xxxxxxx Xxxxxxxx, Xx.
Its: Chairman of the Board of Directors
Print Name:
STATE OF FLORIDA )
)
SS:
COUNTY OF PALM BEACH )
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The foregoing instrument was acknowledged before me this day of
, 199 , by XXXXX XXXXXXXXX as Vice President of FIRST UNION NATIONAL
BANK OF FLORIDA, a national banking association, on behalf of the bank. She is
personally known to me or has produced as
identification.
Printed Name:
Notary Public
Commission No.:
My Commission Expires:
STATE OF FLORIDA )
)
SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this day of
, 199 , by XXXXX XXXXXXXXX as Vice President of FIRST UNION NATIONAL
BANK OF FLORIDA, a national banking association, on behalf of the bank, as
Agent. She is personally known to me or has produced
as identification.
Printed Name:
Notary Public
Commission No.:
My Commission Expires:
STATE OF FLORIDA )
)
SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this day of
, 199 , by A. XXXXXXX XXXXXXXX, XX. as Chairman of the Board of
Directors/CEO of XXXXXXXXX INTERNATIONAL, INC., a Delaware corporation, on
behalf of the corporation. He is personally known to me or has produced
as identification.
Printed Name:
Notary Public
Commission No.:
My Commission Expires:
STATE OF FLORIDA )
)
SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this day of
, 199 , by A. XXXXXXX XXXXXXXX, XX. as Chairman of the Board of
Directors of XXXXXXXXX IMPORTS, LTD. (f/k/a Xxxxx Importers, Ltd.), a New York
corporation, on behalf of the corporation. He is personally known to me or has
produced as identification.
Printed Name:
Notary Public
Commission No.:
My Commission Expires:
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