Exhibit 10.39
FOURTH AMENDMENT TO MASTER AGREEMENT
This FOURTH AMENDMENT TO MASTER AGREEMENT, dated as of March 14, 2002 (this
"Amendment"), is among XXXXX XXXXX INTERNATIONAL, INC., a Florida corporation
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("Lessee"), SUP JOINT VENTURE, a Florida general partnership, ("Lessor"),
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SUNTRUST BANK, a Georgia banking corporation (formerly known as SunTrust Bank,
Miami, N.A.), as a Lender and as the Agent (each as defined below), and ISRAEL
DISCOUNT BANK LIMITED, MIAMI AGENCY, as a Lender.
BACKGROUND
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1. Lessee, Lessor, Funding Parties and the Agent are parties to that
certain Master Agreement, dated as of August 28, 1997, as amended by the First
Amendment to Master Agreement and Leases, dated as of April 2, 1999, the Second
Amendment to Master Agreement, dated as of August 19, 1999, and the Third
Amendment to Master Agreement, dated as of April 7, 2000 (the "Master
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Agreement").
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2. The parties hereto desire to amend the Master Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not
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otherwise defined herein shall have the meanings assigned thereto in Master
Agreement.
SECTION 2. Representations. The Lessee hereby represents and warrants that,
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after giving effect to this Amendment, (i) the representations and warranties of
the Lessee set forth in the Master Agreement are true and correct on and as of
the date hereof as though made on and as of the date hereof and (ii) no Event of
Default or Potential Event of Default shall have occurred and be continuing.
SECTION 3. Financial Covenant. Lessee hereby acknowledges that, prior to
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giving effect to this Amendment, Lessee is in default under Section 5.20(a) of
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the Master Agreement for the fiscal period ending on January 31, 2002. The
Agent and the Funding Parties hereby waive such Event of Default under Section
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5.20(a), but the Agent and the Funding Parties expressly reserve their rights
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and remedies with respect to any other Potential Event of Default or Event of
Default, including, without limitation, any Potential Event of Default or Event
of Default with respect to Section 5.20(a) of the Master Agreement arising after
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January 31, 2002. Lessee hereby acknowledges and agrees that the execution and
delivery of this Amendment has not established any course of dealing between
Lessee and the Agent and the Funding Parties or any obligation of the Agent or
any Funding Party with respect to any future restructuring or modification of
the
Master Agreement or the other Operative Documents or the exercise of the Agent's
or any Funding Party's rights and remedies thereunder.
SECTION 4. Certain Documents. In order to induce the Agent and each Funding
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Party to enter into this Amendment and grant the accommodations set forth
herein, Lessee hereby covenants and agrees as follows:
(a) Acquisition Documents. Lessee shall furnish to the Agent, (i)
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promptly following the execution thereof and in any event prior to the Xxxxxxx
Acquisition Date, true, complete and correct copies of the executed Xxxxxxx
Acquisition Agreement, which Xxxxxxx Acquisition Agreement shall be in the form
of the draft Xxxxxxx Acquisition Agreement delivered to the Agent on the date of
this Amendment, except for revisions thereto that do not adversely affect the
Agent or the Funding Parties in any respect, and (ii) on the Xxxxxxx Acquisition
Date, final versions (in unexecuted form) of such Xxxxxxx Acquisition Documents
as the Agent may request, each of which shall be, upon and after its execution
and delivery, in full force and effect.
(b) Senior Note Documents. Lessee shall furnish to the Agent, (i)
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promptly following the issuance thereof and in any event prior to the incurrence
of the Senior Note Debt, true, complete and correct copies of the Senior Note
Offering Memorandum, which Senior Note Offering Memorandum shall be in the form
of the draft Senior Note Offering Memorandum delivered to the Agent on the date
of this Amendment, except for revisions thereto that do not adversely affect the
Agent or the Funding Parties in any respect, and (ii) on or prior to the Xxxxxxx
Acquisition Date, final versions (in unexecuted form) of such Senior Note
Documents as the Agent may request, each of which shall be, upon and after its
execution and delivery, in full force and effect.
SECTION 5. Conditions to Consent. Based on Lessee's representations,
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warranties, covenants and agreements set forth in this Amendment and the other
Operative Documents, including the covenants and agreements set forth in Section
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4 above, the Agent and the Funding Parties hereby consent to the contemporaneous
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consummation of the Xxxxxxx Acquisition and the incurrence of the Senior Note
Debt on the Xxxxxxx Acquisition Date, subject to the following conditions:
(a) No Potential Event of Default or Event of Default shall exist
after giving effect to the consummation of the Xxxxxxx Acquisition and the
incurrence of the Senior Note Debt.
(b) After giving pro forma effect to the consummation of the Xxxxxxx
Acquisition and the incurrence of the Senior Note Debt, Lessee shall be in
compliance with each of the financial covenants set forth in Section 5.20 of the
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Master Agreement (as amended hereby), and the Agent shall have received a
certificate and supporting calculations from the Financial Officer evidencing
such compliance.
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(c) On the Xxxxxxx Acquisition Date, (i) the Agent shall have
received true and complete executed or conformed copies of the Senior Note
Documents; (ii) the Senior Note Documents shall be in full force and effect and
no material term or condition thereof shall have been amended, modified or
waived after the execution thereof (other than solely to extend the date by
which the Senior Note Debt is to be incurred) except with the prior written
consent of the Agent; (iii) none of the parties to any of the Senior Note
Documents shall have failed to perform any material obligation or covenant
required by such Senior Note Document to be performed or complied with by it on
or before the Xxxxxxx Acquisition Date; (iv) all requisite approvals by
Governmental Authorities and regulatory bodies having jurisdiction over the
parties to the Senior Note Documents in respect of the Senior Note Offering
shall have been obtained by such parties, and no such approvals shall impose any
unsatisfied conditions to the incurrence of the Senior Note Debt; (v) the
incurrence of the Senior Note Debt pursuant to the Senior Note Offering shall be
consummated (A) in accordance with all applicable laws and the terms of the
Senior Note Offering Memorandum, and (B) pursuant to the Senior Note Documents
in form consistent with the Senior Note Offering Memorandum and otherwise
satisfactory to the Agent, without any amendment or waiver of any material
provision thereof; (vi) all opinion letters delivered in connection with the
Senior Note Documents and the transactions contemplated thereby shall be
addressed to the Agent, for the benefit of the Funding Parties, or accompanied
by a written authorization from the firm delivering such opinion letter stating
that the Agent, for the benefit of the Funding Parties, may rely on such opinion
letter as though it were addressed to it; and (vii) the Agent shall have
received the duly executed and delivered Intercreditor Agreement in
substantially the form attached to this Amendment as Exhibit A (the "Trademark
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Intercreditor Agreement").
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(d) On the Xxxxxxx Acquisition Date, (i) the Agent shall have
received true and complete executed or conformed copies of the Xxxxxxx
Acquisition Documents; (ii) the Xxxxxxx Acquisition Documents shall be in full
force and effect and no material term or condition thereof shall have been
amended, modified or waived after the execution thereof (other than solely to
extend the date by which the Xxxxxxx Acquisition is required to occur) except
with the prior written consent of the Agent; (iii) none of the parties to any of
the Xxxxxxx Acquisition Documents shall have failed to perform any material
obligation or covenant required by such Xxxxxxx Acquisition Document to be
performed or complied with by it on or before the Xxxxxxx Acquisition Date; (iv)
all material representations and warranties of the Jantzen Sellers contained in
the Xxxxxxx Acquisition Agreement and the other Xxxxxxx Acquisition Documents
shall be true and correct in all material respects with the same effect as
though made on and as of the Xxxxxxx Acquisition Date; (v) all requisite
approvals by Governmental Authorities and regulatory bodies having jurisdiction
over the parties to the Xxxxxxx Acquisition Agreement in respect of the Xxxxxxx
Acquisition shall have been obtained by such parties (other than the completion
of any assignments of record of Intellectual Property being transferred by VF
Canada, Inc. to Xxxxxxx Apparel or Lessee, which assignments Lessee shall
diligently pursue to completion), and no such approvals shall impose any
unsatisfied conditions to the consummation of the Xxxxxxx Acquisition; (vi) the
Xxxxxxx Acquisition shall have been consummated (A) in accordance with all
applicable laws and the terms of the Xxxxxxx Acquisition Agreement, and (B)
pursuant to the
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Xxxxxxx Acquisition Documents in form consistent with the Xxxxxxx Acquisition
Agreement and otherwise satisfactory to the Agent, without any amendment or
waiver of any material provision thereof; (vii) all opinion letters, if any,
delivered in connection with the Xxxxxxx Acquisition Documents and the
transactions contemplated thereby shall be addressed to the Agent, for the
benefit of the Funding Parties, or accompanied by a written authorization from
the firm delivering such opinion letter stating that the Agent, for the benefit
of the Funding Parties, may rely on such opinion letter as though it were
addressed to it; and (viii) the Agent shall have received the consent and
acknowledgment of the Jantzen Sellers with respect to the Xxxxxxx Acquisition
Documents Assignment.
(e) The Agent shall have received a certificate from Lessee's
President or Financial Officer, together with such other evidence satisfactory
to the Agent, that each of the conditions set forth in clauses (a) through (d)
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above shall have been satisfied.
(f) Lessee shall have delivered to the Agent a stand-by letter of
credit issued by Bank of America, N.A. in form and substance reasonably
satisfactory to the Agent with a stated amount equal to $5,500,000.
(g) The Xxxxxxx Acquisition and the incurrence of the Senior Note
Debt pursuant to the Senior Note Offering shall be consummated in accordance
with the foregoing on or prior to March 30, 2002.
SECTION 6. Exercise of Purchase Option. Lessee hereby irrevocably agrees
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that it shall exercise the Purchase Option under each of the Leases, in
accordance with Article XIV of each of the Leases, on or prior to June 30, 2002;
failure of Lessee to consummate such purchase in accordance with the Leases on
or before June 30, 2002 shall constitute an immediate Event of Default. Lessee
shall give the Agent not less than five business days' notice of the date, which
shall be a Business Day, on which Lessee shall exercise the Purchase Option.
SECTION 7. Trademark Intercreditor Agreement. Subject to the satisfaction
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of the conditions set forth in Section 5 of this Amendment, the Agent hereby
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agrees to execute and deliver the Trademark Intercreditor Agreement to the
Senior Note Trustee on the Xxxxxxx Acquisition Date. The Funding Parties hereby
authorize the Agent to execute and deliver the Trademark Intercreditor Agreement
and such other agreements and documents in connection therewith as the Agent
deems necessary or appropriate.
SECTION 8. Definitions. The Master Agreement is hereby amended by deleting
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the definitions of "Funded Indebtedness", "General Permitted Liens", "Letter of
Credit Facility", "Permitted Indebtedness", "Permitted Purchase Money
Indebtedness" and "Restricted Payment" set forth in Appendix A thereto and
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replacing them with the following:
"Funded Indebtedness" means, without duplication, (a) all Indebtedness
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under the Revolving Loan Agreement, (b) the aggregate amount at any time of
outstanding
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reimbursement obligations with respect to letters of credit (other than the
Standby Letter of Credit, but including other Letters of Credit) and
banker's acceptances issued by a Permitted Letter of Credit Bank or any
other financial institution which have been drawn upon, (c) all
Indebtedness under the Operative Documents, (d) all Senior Note Debt, (e)
all High Yield Debt and (f) all other Indebtedness for Money Borrowed.
"General Permitted Liens" means: (a) Liens securing taxes,
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assessments and other governmental charges or levies (excluding any Lien
imposed pursuant to any of the provisions of ERISA) or the claims of
materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
but in all cases, only if payment shall not at the time be required to be
made in accordance with Section 15.4 of the Master Agreement, (b) Liens
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consisting of deposits or pledges made in the ordinary course of business
in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation or under surety
or performance bonds, in each case arising in the ordinary course of
business; (c) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
the Real Estate, which in the sole judgment of the Agent do not materially
detract from the value of such Real Estate or impair the use thereof in the
business of the Obligors; (d) Purchase Money Liens securing Permitted
Purchase Money Indebtedness; (e) Liens in favor of any Permitted Letter of
Credit Bank but only if such Liens shall at all times be (i) subordinate to
the Agent's Liens in all Collateral other than Inventory (and related
documents and insurance proceeds of such Inventory) acquired by the
Borrowers (as defined in the Revolving Loan Agreement) through letters of
credit issued by such Permitted Letter of Credit Bank, and (ii) subject to
an Inventory Intercreditor Agreement; (f) Liens in favor of the Agent as
security for Lessee's obligations arising under the Operative Document; (g)
Liens arising under the Revolving Loan Agreement and the other Loan
Documents (as defined in the Revolving Loan Agreement); (h) Liens arising
out of or resulting from any judgment or award, the time for the appeal or
petition for rehearing of which shall not have expired, or in respect of
which the Obligors are fully protected by insurance or in respect of which
the Obligors shall at any time in good faith be prosecuting an appeal or
proceeding for a review and in respect of which a stay of execution pending
such appeal or proceeding for review shall have been secured, and as to
which appropriate reserves have been established on the books of the
Obligors; (i) the interest of the Factors in factored Receivables, provided
Assignments of Factoring Credit Balances are then effective; and (j) Liens
in favor of the Senior Note Trustee in the "Collateral" as described in the
Senior Note Indenture as in effect on the original date thereof (but
excluding any "Additional Collateral" as described therein), provided that
such Liens shall at all times be subject to the Trademark Intercreditor
Agreement.
"Letter of Credit Facility" means the aggregate amount of $20,000,000,
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which may be used for documentary Letters of Credit and standby Letters of
Credit.
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"Permitted Indebtedness" means: (a) the Loans (as defined in the
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Revolving Loan Agreement), (b) letter of credit and steamship guaranty
facilities in the aggregate amount of up to $60,000,000 at any time with
Permitted Letter of Credit Banks, (c) Indebtedness of up to $16,300,000
arising under the Operative Document or any refinancing thereof, (d)
Permitted Purchase Money Indebtedness, (e) the High Yield Debt in an
aggregate principal amount not to exceed $125,000,000, (f) other
Subordinated Indebtedness, (g) Indebtedness of up to $75,000,000 under the
Senior Note Indenture, (h) Permitted Acquisition Debt, and (i) Indebtedness
under Interest Rate Protection Agreements.
"Permitted Purchase Money Indebtedness" means Purchase Money
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Indebtedness secured only by Purchase Money Liens and Capitalized Lease
Obligations up to an aggregate amount outstanding at any time equal to
$2,750,000.
"Restricted Payment" means (a) any redemption, repurchase or
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prepayment (including any payment made to any Person to defease payment
obligations under the High Yield Debt, the Senior Note Debt or any other
Indebtedness) or other retirement, prior to the stated maturity thereof or
prior to the due date of any regularly scheduled installment or
amortization payment with respect thereto, of any Indebtedness of a Person
(other than the Secured Obligations and trade debt), (b) any redemption,
retirement or payment with respect to the High Yield Debt or any other
Subordinated Indebtedness other than in accordance with the subordination
agreement or provisions applicable thereto, and (c) the payment by any
Person of the principal amount of or interest on any Indebtedness (other
than trade debt) owing to an Affiliate of such Person.
SECTION 9. New Definitions. The Master Agreement is hereby amended by
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adding the following definitions to Appendix A:
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"Bank" means Bank of America, N.A., and its successors and assigns.
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"Bank Inventory Intercreditor Agreement" means an intercreditor
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agreement between the Agent and a Permitted Letter of Credit Bank in form
and substance acceptable to the Agent, which shall include subordination
and other provisions acceptable to the Agent with respect to all Collateral
other than the Inventory (and related documents and insurance proceeds of
such Inventory) acquired by the Borrowers (as defined in the Revolving Loan
Agreement) through letters of credit issued by such Permitted Letter of
Credit Bank.
"Xxxxxxx Acquisition" means the Acquisition by Lessee from the Xxxxxxx
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Sellers of the assets contemplated by the Xxxxxxx Acquisition Agreement.
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"Xxxxxxx Acquisition Agreement" means the Asset Purchase Agreement to
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be entered into among the Jantzen Sellers and Lessee, together with all
exhibits and schedules thereto.
"Xxxxxxx Acquisition Date" means the date on which the Xxxxxxx
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Acquisition is consummated.
"Xxxxxxx Acquisition Documents" means, collectively, the Xxxxxxx
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Acquisition Agreement and all other documents, agreements and certificates
executed in connection with the consummation of the transactions
contemplated by the Xxxxxxx Acquisition Agreement.
"Xxxxxxx Apparel" means Xxxxxxx Apparel Corp., a Delaware corporation.
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"Jantzen Sellers" means, collectively, Xxxxxxx Inc., a Nevada
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corporation, and VF Canada, Inc., a Canadian corporation.
"Lessee" means Xxxxx Xxxxx International, Inc., a Florida corporation.
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"Permitted Letter of Credit Banks" means Hong Kong Shanghai Bank,
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Ocean Bank, Israeli Discount Bank, Commerce Bank, and any other bank
acceptable to the Agent.
"Senior Note Debt" means Indebtedness incurred by Lessee on the terms
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set forth in the Senior Note Offering Memorandum and pursuant to the Senior
Note Indenture.
"Senior Note Documents" means the Senior Note Indenture, all security
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agreements relating thereto, and all other documents, agreements and
certificates executed in connection therewith.
"Senior Note Indenture" means the Indenture to be entered into among
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Lessee, as issuer, certain Subsidiaries of Lessee, as guarantors, and the
Senior Note Trustee, in connection with the Senior Note Debt.
"Senior Note Offering" means the offering of the Senior Note Debt in
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accordance with the terms of the Senior Note Offering Memorandum.
"Senior Note Offering Memorandum" means the Preliminary Offering
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Memorandum with respect to the offering of up to $57,250,000 principal
amount of Lessee's Senior Secured Notes due 2009.
"Senior Note Trustee" means State Street Bank and Trust Company, as
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trustee under the Senior Note Indenture.
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"Trademark Intercreditor Agreement" has the meaning set forth in the
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Fourth Amendment to Master Agreement dated March 14, 2002.
Any capitalized terms used in the Master Agreement or any other Operative
Document that are not defined therein shall have the meanings assigned thereto
in the Revolving Loan Agreement.
SECTION 10. Establishment of Reserve. The parties hereto acknowledge that,
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effective upon the consummation of the Xxxxxxx Acquisition on the Xxxxxxx
Acquisition Date, a reserve shall be established against the Borrowing Base (as
defined in the Revolving Credit Agreement) in an amount equal to the Lease
Balance under both Leases minus the stated amount of all outstanding Letters of
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Credit issued in favor of the Agent as security for Lessee's obligations under
the Operative Documents. Such reserve shall continue until the termination of
the Leases and the payment in full of all amounts owing under the Operative
Documents.
SECTION 11. References to Supreme. The Master Agreement is hereby amended
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by deleting all references therein to the defined term "Supreme" and replacing
them with "Lessee".
SECTION 12. Permitted Receivables Disposition. The Master Agreement is
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hereby amended by deleting all references therein to the defined term "Permitted
Receivables Disposition", it being the intent of the parties hereto that such
dispositions no longer be permitted without the consent of the Agent and the
Required Funding Parties.
SECTION 13. Jurisdiction of Organization. The Master Agreement is hereby
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amended by adding the following new Section 5.35:
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Section 5.35 Jurisdiction of Organization. Change its jurisdiction of
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organization without the prior consent of the Agent.
SECTION 14. License Subsidiary. The Agent and the Funding Parties
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acknowledge and agree that (a) the provisions of Section 5.10 of the Master
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Agreement shall not apply to a wholly owned Subsidiary of Lessee that is not
organized under the laws of the United States of America and to which license
agreements or the right to receive royalties or payments under such license
agreements are transferred or assigned (a "License Subsidiary"), provided, that
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the aggregate payments due under all the license agreements or rights so
transferred each fiscal year shall not, in the aggregate, exceed 30% of the
total payment due under the all the licenses of Lessee and its Subsidiaries in
such fiscal year, and (b) notwithstanding anything to the contrary set forth in
the Master Agreement, so long as no Event of Default exists, Lessee and its
Subsidiaries may transfer or assign license agreements or the right to receive
royalties or payments under such license agreements to a License Subsidiary,
free and clear of any Lien of the Agent, provided, that the aggregate payments
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due under all the license agreements or rights so transferred each fiscal year
shall not, in the aggregate, exceed 30% of the total payment due under the all
the licenses of Lessee and its Subsidiaries in such fiscal year. The Agent
hereby agrees to execute
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and deliver (and the Funding Parties authorize the Agent to execute and deliver)
such Lien releases as may be reasonably requested by Lessee to evidence the
foregoing.
SECTION 15. Certain Notices. The Master Agreement is hereby amended by
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deleting Section 5.17(d) and replacing it with the following:
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(d) any (i) Potential Event of Default or Event of Default, or (ii)
event that constitutes or that, with the passage of time or giving of
notice or both, would constitute a default or event of default by Lessee or
any of its Subsidiaries under any material agreement (other than this
Agreement) to which Lessee or such Subsidiary is a party or by which Lessee
or such Subsidiary or any of their respective property may be bound
(including without limitation any agreement relating to the High Yield
Debt, the Senior Note Debt, the Revolving Loan Agreement, the factoring
arrangements with the Factors, and any letter of credit facility with a
Permitted Letter of Credit Bank).
SECTION 16. Certain Financial Covenants. Upon the consummation of the
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Xxxxxxx Acquisition on the Xxxxxxx Acquisition Date (and the incurrence of the
Senior Note Debt), the Master Agreement is hereby amended by deleting clauses
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(a) and (c) of Section 5.20 and replacing such clauses with the following:
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(a) Maximum Funded Indebtedness to EBITDA Ratio. Permit the ratio of
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Funded Indebtedness to its EBITDA (measured for the preceding four fiscal
quarters), in each case measured on a consolidated basis for Lessee and its
consolidated Subsidiaries, to be greater than 6.0 to 1 as of any fiscal
quarter ending after January 31, 2002.
(c) Maximum Senior Funded Indebtedness to EBITDA Ratio. Permit the
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ratio of (i) Funded Indebtedness minus Subordinated Indebtedness to (ii)
EBITDA (measured for the preceding four fiscal quarters), in each case
measured on a consolidated basis for Lessee and its consolidated
Subsidiaries, to be greater than 3.0 to 1 as of any fiscal quarter ending
after January 31, 2002.
SECTION 17. Guaranties. The Master Agreement is hereby amended by deleting
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Section 5.22 and replacing it with the following:
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Section 5.22 Guaranties. Become or remain liable with respect to any
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Guaranty of any obligation of any other Person, excluding (a) the Guaranty
by Lessee of Sunny Industries' obligations for $600,000, (b) the Subsidiary
Guaranty, (c) the Guarantees by the Guarantors of the High Yield Debt, and
(d) the Guarantees by the Guarantors of the Senior Note Debt.
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SECTION 18. Capital Expenditures. The Master Agreement is hereby amended by
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deleting Section 5.24 and replacing it with the following:
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Section 5.24 Capital Expenditures. Make or incur any Capital
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Expenditures, except that Lessee and its Subsidiaries may make or incur
Capital Expenditures during any fiscal year in an amount not to exceed, in
the aggregate, $6,000,000.
SECTION 19. Restricted Payments. The Master Agreement is hereby amended by
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deleting Section 5.25 and replacing it with the following:
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Section 5.25 Restricted Distributions and Payments, Etc. Declare or
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make any Restricted Distribution or Restricted Payment; provided that,
Lessee shall be permitted to redeem or repurchase outstanding High Yield
Debt and the Senior Note Debt from the proceeds of an equity offering made
in accordance with the Revolving Loan Agreement, provided (a) no Potential
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Event of Default or Event of Default exists before or after giving effect
to such redemption or repurchase, (b) Lessee is in compliance with the
covenants set forth in Section 5.20 on a pro forma basis after giving
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effect to such redemption or repurchase, and (c) prior to such redemption
or repurchase Lessee shall deliver to the Agent a certificate of the
Financial Officer (i) setting forth the calculations required to establish
Lessee's pro forma compliance with the requirements of Section 5.20 after
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giving effect to such redemption or repurchase, and (ii) stating that no
Potential Event of Default or Event of Default exists before or after
giving effect to such redemption or repurchase; provided further, that to
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the extent that any Asset Disposition of Intellectual Property that is
subject to a first priority Lien in favor of the Senior Note Trustee in
accordance with the terms of the Trademark Intercreditor Agreement is
permitted under this Master Agreement, Lessee shall be permitted to redeem
or repurchase outstanding Senior Note Debt from the Net Proceeds of such
Asset Disposition. Notwithstanding the above, Lessee shall also be
permitted at any time to repurchase or redeem capital stock or other equity
securities issued by Lessee, provided (a) the consideration paid by Lessee
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shall not exceed $7,000,000 in the aggregate during the term of this Master
Agreement, (b) no Potential Event of Default or Event of Default exists
before or after giving effect to such repurchase, and (c) Lessee is in
compliance with the covenants set forth in Section 5.20 on a pro forma
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basis after giving effect to such redemption or repurchase.
SECTION 20. Other Agreements. The Master Agreement is hereby amended by
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deleting Section 5.32 and replacing it with the following:
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Section 5.32 Amendments of Other Agreements. Amend in any way (a) the
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interest rate or principal amount or schedule of payments of principal and
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interest with respect to any Indebtedness (other than the Secured
Obligations) other than to reduce the interest rate or extend the schedule
of payments with respect thereto, (b) the subordination provisions
applicable to the High Yield Debt or any other Subordinated Indebtedness,
or (c) any of the other terms and conditions applicable to the High Yield
Debt or the Senior Note Debt.
SECTION 21. Restrictions on Subsidiaries. The Master Agreement is hereby
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amended by deleting Section 5.33 and replacing it with the following:
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Section 5.33 Limitation on Certain Restrictions on Subsidiaries.
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Create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by Lessee or any Subsidiary
of Lessee, or pay any Indebtedness owed to Lessee or a Subsidiary of
Lessee, (b) make loans or advances to Lessee or any of Lessee's
Subsidiaries, or (c) transfer any of its properties or assets to Lessee,
except for such encumbrances or restrictions existing under or by reason of
(i) applicable laws, (ii) the indenture and other agreements applicable to
the High Yield Debt, (iii) the Senior Note Documents, and (iv) this Master
Agreement and the Revolving Loan Agreement.
SECTION 22. Change in Control. Both Leases are hereby amended by deleting
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paragraph (q) of Article XII and replacing it with the following:
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(q) Change in Control. At any time after the date of this Lease, (i)
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any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended, and the rules
promulgated thereunder (collectively, the "Exchange Act")), other than
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Permitted Holders, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 35%
of the total voting power of all outstanding capital voting stock of
Lessee, and either (A) the Permitted Holders beneficially own, directly or
indirectly, in the aggregate capital voting stock of Lessee that represents
a lesser percentage of the aggregate ordinary voting power of all classes
of the capital voting stock of Lessee, voting together as a single class,
than such other person or group and are not entitled (by voting power,
contract or otherwise) to elect directors of Lessee having a majority of
the total voting power of the Board of Directors of Lessee, or (B) such
other person or group is entitled to elect directors of Lessee having a
majority of the total voting power of the Board of Directors of Lessee; or
(ii) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of Lessee
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(together with any new directors whose election by the Board of Directors
of Lessee, or whose nomination for election by the shareholders of Lessee,
as the case may be, was approved by a vote of 66 2/3% of the directors then
still in office who either were directors at the beginning of such period
or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the directors of Lessee
then in office; or (iii) Lessee ceases to own, directly or indirectly, 100%
of the capital stock of each other Obligor, or such ownership shall cease
to vest in Lessee voting control over any such Obligor; or (iv) a "Change
of Control" as defined in the Notes Description of the High Yield Debt
Offering Memorandum, or any indenture issued in connection therewith,
occurs; or (v) a "Change of Control" as defined in the Senior Note
Indenture occurs.
SECTION 23. French Subsidiary. The Agent and the Funding Parties waive
-----------------
the requirements set forth in Section 5.10 of the Master Agreement with respect
------------
to Lessee's French subsidiary, Xxxxx Xxxxx International Europe.
SECTION 24. Miscellaneous. The Master Agreement, as amended hereby,
-------------
remains in full force and effect. This Amendment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same agreement. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of Florida. The Lessee hereby agrees
promptly to pay, or reimburse the Agent for, any and all costs and expenses,
including legal fees and disbursements, incurred by the Agent in connection with
this Amendment.
12
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment
to be executed by its respective duly authorized officer as of the date first
above written
XXXXX XXXXX INTERNATIONAL, INC.
By:____________________________________
Name:_______________________________
Title:______________________________
S-1
SUP JOINT VENTURE
By: Atlantic Financial Group, Inc.
its General Partner
By: _____________________________
Name:________________________
Title:_______________________
By: Atlantic Financial Managers, Ltd.,
its General Partner
By: _____________________________
Name:________________________
Title:_______________________
S-2
SUNTRUST BANK,
as Agent and a Lender
By: __________________________________
Name:_____________________________
Title:____________________________
X-0
XXXXXX DISCOUNT BANK LIMITED, MIAMI
AGENCY, as a Lender
By: __________________________________
Name:_____________________________
Title:____________________________
S-4
