EXHIBIT 10.36
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO Amended and Restated Loan and Security
Agreement (the "Amendment") is made and entered into effective as of the 12th
day of August, 1999, by and among BANK OF AMERICA, N.A., formerly NationsBank,
N.A., as agent for the financial institutions party to the Loan Agreement (as
hereafter defined) from time to time (the "Agent"), the financial institutions
party to the Loan Agreement from time to time (the "Lenders"), XXXXX XXXXX
INTERNATIONAL, INC., a Florida corporation, formerly known as Supreme
International Corporation, and XXXXX XXXXX INTERNATIONAL LICENSING CORP., a New
York corporation formerly known as Xxxxx Xxxxx International, Inc., as borrowers
(the "Borrowers").
W I T N E S S E T H :
WHEREAS, the Agent, the Borrowers and the Lenders are parties to that
certain Amended and Restated Loan and Security Agreement, dated as of March 26,
1999 (as amended from time to time, the "Loan Agreement"), pursuant to which the
Agent and the Lenders have agreed to extend certain loans and financial
accommodations to the Borrowers; and
WHEREAS, the Borrowers, the Agent and the Lenders desire to amend the
Loan Agreement on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. The Loan Agreement is amended by adding the following new definition
of "Grantors" to SECTION 1.1:
"GRANTORS" means the Borrowers and Supreme Canada,
collectively, and "GRANTOR" means each Borrower and Supreme Canada,
individually.
2. The Loan Agreement is amended by deleting the existing definitions
of "Borrowing Base", "Eligible Inventory", "Eligible Receivable", "Fixed
Charges", "License Inventory", "Permitted Investments" and "Private Label
Inventory" set forth in SECTION 1.1 and substituting the following in lieu
thereof:
"BORROWING BASE" means at any time THE LESSER OF (a) the
Revolving Credit Facility minus the Letter of Credit Reserve and (b) an
amount equal to the sum of:
(i) 85% (or such lesser percentage as the Agent may in its
sole and absolute discretion determine from time to time) of the face value of
Eligible Receivables due and owing at such time, PLUS
(ii) 90% (or such lesser percentage as the Agent may in its
sole and absolute discretion determine from time to time) of the Eligible
Factoring Credit Balances due and owing at such time, PLUS
(iii) THE LESSER OF (A) 60% (or such lesser percentage as the
Agent may in its sole and absolute discretion determine from time to time) of
the lesser of cost (computed on a first-in-first-out basis) and fair market
value of Eligible Inventory at such time, and (B) $30,000,000, MINUS
(iv) the Letter of Credit Reserve and such other reserves as
the Agent may determine from time to time in the exercise of its reasonable
credit judgment.
"ELIGIBLE INVENTORY" means items of Inventory of the Grantors
held for sale in the ordinary course of the business of the Grantors
(but not including packaging or shipping materials or maintenance
supplies) which are deemed by the Agent in the exercise of its sole and
absolute discretion to be eligible for inclusion in the calculation of
the Borrowing Base. Unless otherwise approved in writing by the Agent,
no Inventory shall be deemed to be Eligible Inventory unless it meets
all of the following requirements: (a) such Inventory is owned by a
Grantor, is subject to the Security Interest, which is a first priority
perfected Lien as to such Inventory, and which is subject to no other
Lien whatsoever other than a junior Permitted Lien; (b) such Inventory
consists of finished goods and does not consist of raw materials,
work-in-process, supplies or consigned goods; (c) such Inventory is in
good condition and meets all standards applicable to such goods, their
use or sale imposed by any governmental agency, or department or
division thereof, having regulatory authority over such matters; (d)
such Inventory is currently saleable, at prices approximating at least
the cost thereof, in the normal course of a Grantor's business; (e)
such Inventory is not obsolete or repossessed or used goods taken in
trade, or returned goods not suitable for sale as new Inventory; (f)
such Inventory is located at a location listed on SCHEDULE 7.1(U),
attached hereto; (g) such Inventory is in the possession and control of
a Grantor and not any third party and if located in a warehouse or
other facility leased by a Grantor, the lessor has delivered to the
Agent a waiver and consent in form and substance satisfactory to the
Agent; (h) if such Inventory is Private Label Inventory, it comprises
less than 35% of Eligible Inventory; and (i) if such Inventory is
License Inventory, the Grantors have delivered to the Agent a copy of
the applicable license agreement and, either, such license agreement
shall permit the use of the applicable trademark by the Agent in
connection with the sale of such Inventory by the Agent pursuant to
Article 13, or the Grantors shall deliver to the Agent an agreement
from the licensor (in form reasonably acceptable to the Agent)
consenting to such usage of the applicable trademark.
"ELIGIBLE RECEIVABLE" means the unpaid portion of a Receivable
payable in Dollars (or, in the case of Supreme Canada, Canadian
dollars) to a Grantor net of any returns, discounts, claims, credits,
charges or other allowances, offsets, deductions, counterclaims,
disputes or other defenses and reduced by the aggregate amount of all
reserves, limits and deductions provided for in this definition and
elsewhere in this Agreement which is deemed by the Agent in the
exercise of its sole and absolute discretion to be eligible for
inclusion in the calculation of the Borrowing Base. Unless
2
otherwise approved in writing by the Agent, no Receivable shall be
deemed an Eligible Receivable unless it meets all of the following
requirements: (a) such Receivable is owned by a Grantor and represents
a complete bona fide transaction which requires no further act under
any circumstances on the part of any Grantor to make such Receivable
payable by the Account Debtor; (b) such Receivable is not unpaid more
than 150 days after the date of the original invoice or past due more
than 90 days after its due date, which shall not be later than 60 days
after the invoice date; (c) such Receivable does not arise out of any
transaction with any Subsidiary, Affiliate, creditor, lessor or
supplier of a Grantor; (d) such Receivable is not owing by an Account
Debtor more than 50% of whose then-existing accounts owing to the
Grantors do not meet the requirements set forth in CLAUSE (B) above;
(e) if the Account Debtor with respect thereto is located outside of
the United States of America, Canada or Puerto Rico, the goods which
gave rise to such Receivable were shipped after receipt by the
applicable Grantor from the Account Debtor of an irrevocable letter of
credit that has been confirmed by a financial institution acceptable to
the Agent and is in form and substance acceptable to the Agent, payable
in the full face amount of the face value of the Receivable in Dollars
at a place of payment located within the United States and has been
duly delivered to the Agent; (f) such Receivable is not subject to the
Assignment of Claims Act of 1940, as amended from time to time, or any
applicable law now or hereafter existing similar in effect thereto, as
determined in the sole discretion of the Agent, or to any provision
prohibiting its assignment or requiring notice of or consent to such
assignment; (g) no Grantor is in material breach of any express or
implied representation or warranty with respect to the goods the sale
of which gave rise to such Receivable; (h) the Account Debtor with
respect to such Receivable is not insolvent or the subject of any
bankruptcy or insolvency proceedings of any kind or of any other
proceeding or action, threatened or pending, which might, in the
Agent's sole judgment, have a materially adverse effect on such Account
Debtor; (i) the goods the sale of which gave rise to such Receivable
were shipped or delivered to the Account Debtor on an absolute sale
basis and not on a xxxx and hold sale basis, a consignment sale basis,
a guaranteed sale basis, a sale or return basis or on the basis of any
other similar understanding, and such goods have not been returned or
rejected; (j) such Receivable, to the extent that it, when taken
together with all other Receivables owing to the Grantors by such
Account Debtor and its Affiliates, causes the total face amount of all
then-existing accounts owing to the Grantors by such Account Debtor and
its Affiliates to exceed in face amount 20% of the Grantors' total
Eligible Receivables; (k) such Receivable is evidenced by an invoice or
other documentation in form acceptable to the Agent containing only
terms normally offered by the Grantors, and dated the date of shipment;
(l) such Receivable is a valid, legally enforceable obligation of an
Account Debtor with respect thereto and is not subject to any present,
or contingent (and no facts exist which are the basis for any future),
offset, deduction or counterclaim, dispute or other defense on the part
of such Account Debtor; (m) such Receivable is not evidenced by chattel
paper or an instrument of any kind; (n) such Receivable does not arise
from the performance of services, including services under or related
to any warranty obligation of a Grantor or out of service charges by a
Grantor or other fees for the time value of money; and (o) such
Receivable is subject to the Security Interest, which is a first
priority perfected Lien as to such Receivable, and is subject to no
other Lien whatsoever other than a Permitted Lien, and the goods giving
rise to such
3
Receivable were not, at the time of the sale thereof, subject to any
Lien other than a Permitted Lien.
"FIXED CHARGES" means, for any period, (a) Interest Expense,
plus (b) payments of principal which were made or due with respect to
Indebtedness (other than Revolving Credit Loans), including payments
with respect to Capitalized Leases.
"LICENSE INVENTORY" means Inventory owned by a Grantor bearing
trademarks used pursuant to license agreements between such Grantor and
the owners of such trademarks.
"PERMITTED INVESTMENTS" means: (a) Investments in: (i)
negotiable certificates of deposit, time deposits and banker's
acceptances issued by any Lender or any Affiliate of a Lender or by any
United States bank or trust company having capital, surplus and
undivided profits in excess of $250,000,000, (ii) any direct obligation
of the United States of America or any agency or instrumentality
thereof which has a remaining maturity at the time of purchase of not
more than one year and repurchase agreements relating to the same,
(iii) sales on credit in the ordinary course of business on terms
customary in the industry, and (iv) notes, accepted in the ordinary
course of business, evidencing overdue accounts receivable arising in
the ordinary course of business, (b) other Investments, the net
aggregate amount of which does not at any time exceed $250,000, (c) the
Guaranty of Sunny Industries' obligations permitted under SECTION 12.3,
(d) other Guarantees in an aggregate amount outstanding at any time not
in excess of $1,000,000, provided that prior to the issuance of any
such Guaranty the Borrowers shall provide the Agent with written notice
describing the proposed Guaranty and, if requested by the Agent, a copy
of the proposed Guaranty, and (e) Permitted Acquisitions.
"PRIVATE LABEL INVENTORY" means Inventory owned by a Grantor
bearing private label trademarks pursuant to agreements between such
Grantor and the owners of such private label trademarks.
3. The Loan Agreement is amended by deleting CLAUSE (E) of the
definition of "Permitted Liens" set forth in SECTION 1.1 and substituting the
following in lieu thereof:
(e) Liens of Xxxxxxxx Bank, N.A., Ocean Bank, Bank of
Tokyo-Mitsubishi, and other financial institutions, in Inventory
acquired by the Borrowers through letters of credit issued by Xxxxxxxx
Bank, N.A., Ocean Bank, Bank of Tokyo-Mitsubishi, or such other
financial institutions, but only if such Lien shall at all times be
confined solely to the tangible asset the purchase price of which was
financed by the letter of credit and the reimbursement obligations
relating to which are secured by such Lien, together with other Liens
of Xxxxxxxx Bank, N.A. which are junior to the Security Interest
pursuant to an intercreditor agreement between the Agent and Xxxxxxxx
Bank, N.A.;
4. The Loan Agreement is amended by deleting SECTION 5.2(C) and
replacing it with the following:
4
(c) COMMITMENT FEE. In connection with and as consideration
for the Lenders' commitments hereunder, subject to the terms hereof, to
lend to the Borrowers under the Revolving Credit Facility, the
Borrowers shall pay a fee to the Agent, for the ratable benefit of the
Lenders based on their respective Commitment Percentages, from the
Effective Date until the Termination Date, in an amount equal to, (i)
until such time as the used portion of the Revolving Credit Facility
(taking into account all outstanding Revolving Credit Loans and the
Letter of Credit Reserve) exceeds $47,000,000, 0.25% per annum of the
amount by which $50,000,000 exceeds the used portion of the Revolving
Credit Facility, and (ii) at all times thereafter (whether or not the
used portion of the Revolving Credit Facility exceeds $47,000,000 at
any given time), 0.25% per annum of the average daily unused portion of
the Revolving Credit Facility, in each case payable monthly in arrears
on the first day of each month and on the date of any permanent
reduction in the Revolving Credit Facility.
5. The Loan Agreement is amended by deleting SECTION 5.5 and replacing
it with the following:
Section 5.5 TERMINATION OF AGREEMENT. On the Termination Date,
the Borrowers shall pay to the Agent, for the account of the Lenders,
in same day funds, an amount equal to the aggregate amount of all Loans
outstanding on such date, together with accrued interest thereon, all
fees payable pursuant to SECTION 5.2 accrued from the date last paid
through the effective date of termination, any amounts payable to the
Agent or any Lender pursuant to the other provisions of this Agreement,
including, without limitation, SECTIONS 13.2, 16.2, 16.3 and 16.12, any
and all other Secured Obligations then outstanding, and an amount equal
to the Letter of Credit Reserve to be held by the Agent as Cash
Collateral security for the payment of and to be applied to the payment
of any amounts which may thereafter become due with respect to Letters
of Credit, and provide the Agent and the Lenders with an
indemnification agreement in form and substance satisfactory to the
Agent and the Lenders with respect to returned and dishonored items and
such other matters as the Agent and the Lenders shall require. Upon 60
days prior written notice to the Agent, the Borrowers may terminate
this Agreement prior to the Termination Date in effect at such time,
upon payment of all of the amounts described above and an early
termination fee of (a) $500,000 if such termination occurs on or prior
to March 26, 2000, and (b) $150,000 if such termination occurs at any
time thereafter, PROVIDED that, if this Agreement is terminated and the
Secured Obligations are repaid on or prior to March 26, 2000 from the
proceeds of a public offering of equity securities, such early
termination fee shall be reduced to $150,000.
6. The Loan Agreement is amended by deleting SECTION 7.1(U) and
substituting the following in lieu thereof:
(u) STATUS OF INVENTORY. All Inventory included in any
Borrowing Base Certificate delivered to the Agent pursuant to SECTION
9.14(C) meets the criteria enumerated in the definition of Eligible
Inventory, except as disclosed in such Borrowing Base Certificate or in
a subsequent Borrowing Base Certificate or as otherwise specifically
disclosed in writing to the Agent. All Inventory is in good condition,
meets
5
all standards imposed by any governmental agency or department or
division thereof having regulatory authority over such goods, their use
or sale, and is currently either usable or saleable in the normal
course of the Grantors' business, except to the extent reserved against
in the financial statements delivered pursuant to ARTICLE 11 or as
disclosed on a Schedule of Inventory delivered to the Agent pursuant to
SECTION 9.14(B). Set forth on SCHEDULE 7.1(U) is the (i) address
(including street, city, county and state) of each facility at which
Inventory is located, (ii) the approximate quantity in Dollars (or
Canadian dollars where applicable) of the Inventory customarily located
at each such facility, and (iii) if the facility is leased or is a
third party warehouse or processor location, the name of the landlord
or such third party warehouseman or processor. All Inventory is located
on the premises set forth on SCHEDULE 7.1(U) or is in transit to one of
such locations, except as otherwise disclosed in writing to the Agent.
No Grantor has located Inventory at premises other than those set forth
on SCHEDULE 7.1(U) at any time during the four month period immediately
preceding the Agreement Date.
7. The Loan Agreement is amended by adding the following new SECTION
8.2(E):
(e) Notwithstanding the foregoing provisions of this Section
or any other provision of this Agreement, in the event the Agent or the
Required Lenders elect to record an assignment of trademarks with
respect to trademarks (and applications therefor) of the Grantors
registered with any Governmental Authority outside of Canada and the
United States of America, the Borrowers shall not be responsible for
the costs and expenses associated therewith unless an Event of Default
then exists.
8. The Loan Agreement is amended by deleting SECTION 9.14 and
substituting the following in lieu thereof:
Section 9.14 INFORMATION AND REPORTS.
(a) SCHEDULE OF RECEIVABLES. The Borrowers' Agent shall
deliver to the Agent (i) on or before the Effective Date, a Schedule of
Receivables as of a date not more than three Business Days prior to the
Effective Date setting forth a detailed aged trial balance of all of
the Grantors' then existing Receivables, specifying the name of and the
balance due from (and any rebate due to) each Account Debtor obligated
on a Receivable so listed, and (ii) no later than 15 days after the end
of each accounting month of the Grantors, a Schedule of Receivables as
of the last Business Day of the Grantors' immediately preceding
accounting month setting forth (A) a detailed aged trial balance of all
the Grantors' then existing Receivables, specifying the name of and the
balance due from (and any rebate due to) each Account Debtor obligated
on a Receivable so listed and (B) a reconciliation to the Schedule of
Receivables delivered in respect of the next preceding accounting
month.
(b) SCHEDULE OF INVENTORY. The Borrowers' Agent shall deliver
to the Agent (i) on or before the Effective Date and no later than the
15th day of each accounting month of the Grantors thereafter a Schedule
of Inventory as of the last Business Day of the immediately preceding
accounting month of the Grantors, itemizing and describing the kind,
type, quantity and location of finished goods Inventory not in transit
and not
6
located at contractor's locations and the cost thereof and specifying
which Inventory is License Inventory and which is Private Label
Inventory, and (ii) at the Agent's request, within 35 days of the end
of each quarter, a Schedule of Inventory as of the last Business Day of
the immediately preceding quarter of the Grantors, itemizing and
describing the kind, type, quantity and location of all Inventory,
including finished goods Inventory, in-transit Inventory, and Inventory
located at contractor's facilities, and the cost thereof.
(c) BORROWING BASE CERTIFICATE. The Borrowers' Agent shall
deliver to the Agent and the Lenders, not later than the 15th day of
each accounting month of the Grantors, a Borrowing Base Certificate
prepared as of the close of business on the last Business Day of the
immediately preceding accounting month.
(d) LETTER OF CREDIT/BANKER'S ACCEPTANCES REPORTS. The
Borrowers' Agent shall deliver to the Agent no later than 15 days after
the end of each accounting month of the Grantors, a report listing all
letters of credit and banker's acceptances outstanding under their
credit facilities with Xxxxxxxx Bank, N.A. and other financial
institutions as of the last Business Day of the immediately preceding
accounting month of the Grantors, and the face amount, maturity date
and beneficiary with respect to such letters of credit and banker's
acceptances.
(e) FACTORING REPORTS. The Borrowers' Agent shall deliver to
the Agent upon the Agent's request copies of all reports of the Factors
relating to their factoring arrangement with the Borrowers.
(f) NOTICE OF DIMINUTION OF VALUE. The Borrowers' Agent shall
give prompt notice to the Agent of any matter or event which has
resulted in, or may result in, the actual or potential diminution in
excess of $150,000 in the value of any of the Collateral or any other
collateral for the Secured Obligations, except for any diminution in
the value of any Receivables or Inventory in the ordinary course of
business which has been appropriately reserved against, as reflected in
the financial statements previously delivered to the Lenders pursuant
to ARTICLE 11.
(g) CERTIFICATION. Each of the schedules delivered to the
Agent and/or the Lenders pursuant to this SECTION 9.14 shall be
certified by the Financial Officer to be true, correct and complete as
of the date indicated thereon.
(h) OTHER INFORMATION. The Agent may, in its discretion, from
time to time require the Borrowers' Agent to deliver the schedules
described in SECTION 9.14(A), (B), (C) and (D) more or less often and
on different schedules than specified in such Section, and the
Borrowers' Agent will comply with such requests. The Borrowers' Agent
shall also furnish to the Agent and each Lender such other information
with respect to the Collateral and any other collateral for the Secured
Obligations as the Agent and each Lender may from time to time
reasonably request, including, without limitation, listings of all
outstanding steamship guaranties and letters of credit, specifically
identifying those for which the issuer is not the consignee.
7
9. The Loan Agreement is amended by deleting SECTION 10.14.
10. The Loan Agreement is amended by deleting SECTION 12.14 and
substituting the following in lieu thereof:
Section 12.14 MINIMUM AVAILABILITY. Permit Availability to be
less than $3,000,000 at any time.
11. The Loan Agreement is amended by deleting the first sentence of
SECTION 14.1(E) and substituting the following in lieu thereof:
Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Eligible Assignee together with any
Notes subject to such assignment, the fee described in CLAUSE
(VII) of SECTION 14.1(B), and the written consent of the Agent
to such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in the form of EXHIBIT C,
(i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register, (iii) give
prompt notice thereof to the Lenders and the Borrowers' Agent,
and (iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrowers' Agent.
12. The Loan Agreement is amended by deleting SECTION 16.10(B) and
substituting the following in lieu thereof:
(b) Except as otherwise set forth in this Agreement, without
the prior unanimous written consent of the Lenders,
(i) no amendment, consent or waiver shall affect the
amount or extend the time of the obligation of the Lenders to
make Loans or extend the originally scheduled time or times of
payment of the principal of any Loan or alter the time or
times of payment of interest on any Loan or the amount of the
principal thereof or the rate of interest thereon or the
amount of any commitment fee payable hereunder or permit any
subordination of the principal or interest on such Loan,
permit the subordination of the Security Interests in any
material Collateral or amend the provisions of ARTICLE 13 or
of this SECTION 16.10(B),
(ii) no Guarantor or material Collateral shall be
released by the Agent other than as specifically permitted in
this Agreement,
(iii) no amendment shall be made to the definitions
of "Commitment", "Commitment Percentage", "Eligible Assignee",
"Required Lenders" or "Secured Obligations", or, except to the
extent expressly provided herein, the definition of "Borrowing
Base" shall not be amended, and,
(iv) neither the Agent nor any Lender shall consent
to any amendment to or waiver of the amortization, deferral or
subordination provisions of any instrument or agreement
evidencing or relating to obligations of the Borrowers
8
that are expressly subordinate to any of the Secured
Obligations if such amendment or waiver would be adverse to
the Lenders in their capacities as Lenders hereunder;
PROVIDED, HOWEVER, that anything herein to the contrary
notwithstanding, the Required Lenders shall have the right to
waive any Default or Event of Default (unless such Default or
Event of Default arises out of a provision of this Agreement
which can only be amended with the unanimous consent of the
Lenders) and the consequences hereunder of such Default or
Event of Default and shall have the right to enter into an
agreement with the Borrowers providing for the forbearance
from the exercise of any remedies provided hereunder or under
the other Loan Documents without waiving any such Default or
Event of Default.
13. The Loan Agreement is amended by deleting SCHEDULE 7.1(U) attached
thereto and replacing it with SCHEDULE 7.1(U) attached to this Amendment.
14. The Loan Agreement is amended by deleting the performance pricing
matrix attached thereto as ANNEX I and replacing it with ANNEX I attached to
this Amendment.
15. The effectiveness of this Amendment shall be conditioned upon the
receipt by the Agent of each of the items described on the Schedule of Closing
Documents attached hereto as EXHIBIT A, all of which shall be in form and
substance satisfactory to the Agent.
16. The Borrowers hereby restate, ratify, and reaffirm each and every
term, condition, representation and warranty heretofore made by them under or in
connection with the execution and delivery of the Loan Agreement, as amended
hereby, and the other Loan Documents, as fully as though such representations
and warranties had been made on the date hereof and with specific reference to
this Amendment.
17. As amended hereby, the Loan Agreement shall be and remain in full
force and effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers to the Agent and the Lenders.
18. The Borrowers agree to pay on demand all costs and expenses of the
Agent in connection with the preparation, execution, delivery and enforcement of
this Amendment and all other Loan Documents and any other transactions
contemplated hereby, including, without limitation, the fees and out-of-pocket
expenses of legal counsel to the Agent.
19. To induce the Agent and each Lender to enter into this Amendment,
the Borrowers hereby (a) represent and warrant that, as of the date hereof, and
after giving effect to the terms hereof, there exists no Default or Event of
Default, and (b) acknowledge and agree that no right of offset, defense,
counterclaim, claim, causes of action or objection in favor of any Borrower
against the Agent or any Lender exists arising out of or with respect to any of
the Secured Obligations, the Loan Agreement, or any of the other Loan Documents,
or with respect to the administration or funding of the Secured Obligations.
9
20. The Borrowers agree to take such further action as the Agent or any
Lender shall reasonably request in connection herewith to evidence the
amendments herein contained to the Loan Agreement.
21. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
22. This Amendment shall be binding upon and inure to the benefit of
the successors and permitted assigns of the parties hereto.
23. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Georgia, other than its laws respecting choice of
law.
IN WITNESS WHEREOF, the Borrowers, the Agent and each Lender have
caused this Amendment to be duly executed under seal by their authorized
officers in several counterparts, all as of the date first above written.
BORROWERS:
XXXXX XXXXX INTERNATIONAL, INC.,
formerly Supreme International Corporation
[CORPORATE SEAL]
By: XXXXXXXX X. XXXXXXX
Name: XXXXXXXX X. XXXXXXX
Title: VP FINANCE
XXXXX XXXXX INTERNATIONAL LICENSING CORP.,
formerly Xxxxx Xxxxx International, Inc.
[CORPORATE SEAL]
By: XXXXXXXX X. XXXXXXX
Name: XXXXXXXX X. XXXXXXX
Title: VP FINANCE
10
LENDERS:
BANK OF AMERICA, N.A.,
formerly NationsBank, N.A.
By: XXXXXX X. XXXX
Xxxxxx X. Xxxx
Vice President
XXXXXXXX BANK, N.A.
By: XXXXXXX XXXXXX
Name: XXXXXXX XXXXXX
Title: VICE PRESIDENT
AGENT:
BANK OF AMERICA, N.A.,
formerly NationsBank, N.A.
By: XXXXXX X. XXXX
Xxxxxx X. Xxxx
Vice President
11
NOTARY JURAT FOR EXECUTION OF
NOTES AND OTHER
WRITTEN OBLIGATIONS TO PAY MONEY
BY FLORIDA BORROWERS
On this the ____ day of August, 1999, before me, the undersigned, a
Notary Public in and for the State of __________, County of __________,
________________________ personally appeared, personally known to me or proved
to me on the basis of satisfactory evidence to be the ____________________ of
XXXXX XXXXX INTERNATIONAL, INC., who executed the foregoing Amendment to Amended
and Restated Loan and Security Agreement on behalf of such corporation and
acknowledged to me that such corporation executed the foregoing pursuant to its
by-laws or a resolution of its board of directors, said execution taking place
in the State of __________, County of __________.
__________________________________
Notary Signature
My Commission Expires:
__________________________________
[Affix Notarial Seal]
12
NOTARY JURAT FOR EXECUTION OF
NOTES AND OTHER
WRITTEN OBLIGATIONS TO PAY MONEY
BY FLORIDA BORROWERS
On this the ____ day of August, 1999, before me, the undersigned, a
Notary Public in and for the State of __________, County of __________,
________________________ personally appeared, personally known to me or proved
to me on the basis of satisfactory evidence to be the ____________________ of
XXXXX XXXXX INTERNATIONAL LICENSING CORP., who executed the foregoing Amendment
to Amended and Restated Loan and Security Agreement on behalf of such
corporation and acknowledged to me that such corporation executed the foregoing
pursuant to its by-laws or a resolution of its board of directors, said
execution taking place in the State of __________, County of __________.
__________________________________
Notary Signature
My Commission Expires:
_________________________________
[Affix Notarial Seal]
13
AFFIDAVIT REGARDING DELIVERY
I, ________________________________ hereby certify that I am a
_________________ ___________ of Bank of America, N.A., as Agent for the
Lenders, and that the foregoing was delivered to me as a representative of Bank
of America, N.A. , as Agent for the Lenders, in the State of Georgia, County of
Xxxxxx.
_______________________________________
Signature of Officer or Agent of Lender
On this the ____ day of August, 1999, before me, the undersigned, a
Notary Public in and for the State of Georgia, County of Xxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be a
_______________ of Bank of America, N.A., a national banking association, as
Agent for the Lenders, who executed the foregoing affidavit on behalf of such
national banking association and acknowledged to me that such national banking
association executed the foregoing pursuant to its by-laws or a resolution of
its board of directors, said execution taking place in the State of Georgia,
County of Xxxxxx.
__________________________________
Notary Signature
14
SCHEDULE 7.1(u)
[attach updated Schedule 7.1(u) to include Canadian Inventory locations]
15
ANNEX I
PERFORMANCE PRICING MATRIX
----------------------------------------- -------------------------------------- -------------------------------------
CONSOLIDATED FUNDED LIBOR APPLICABLE MARGIN PRIME RATE APPLICABLE MARGIN
INDEBTEDNESS TO
EBITDA RATIO
----------------------------------------- ------------------ ------------------- ------------------ ------------------
REVOLVER TERM REVOLVER TERM
----------------------------------------- ------------------ ------------------- ------------------ ------------------
Less than 3.00 1.5% 1.75% 0.0% 0.0%
----------------------------------------- ------------------ ------------------- ------------------ ------------------
Less than 3.50 but greater than or
equal to 3.00 1.75% 2.0% 0.0% 0.0%
----------------------------------------- ------------------ ------------------- ------------------ ------------------
Less than 4.00 but greater than or
equal to 3.50 2.0% 2.25% 0.0% 0.25%
----------------------------------------- ------------------ ------------------- ------------------ ------------------
Greater than or equal to 4.00 2.25% 2.5% 0.25% 0.5%
----------------------------------------- ------------------ ------------------- ------------------ ------------------
16
EXHIBIT A
Schedule of Closing Documents
1. Revised fee letter between Xxxxx Xxxxx International, Inc. and Bank of
America, N.A.
17
