EXHIBIT 10.14(d)
FOURTH MODIFICATION OF LOAN AGREEMENT
THIS AGREEMENT is made as of the 17th day of September, 1998, by and
between FIRST UNION NATIONAL BANK, 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").
WITNESSETH:
WHEREAS, Lender, Borrower and Xxxxxxxxx Imports, Ltd., a New York
corporation (formerly known as Xxxxx Importers, Ltd.) (the "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, Modification of Loan Agreement
dated as of August 19, 1996 and Third Modification of Loan Agreement dated as of
December 18, 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 extend the date for advancing
Revolving Loans and final payment of all amounts due under the Revolving Credit
Note and the other Loan Documents to November 1, 2001, to reduce the maximum
principal amount to Fifteen Million and no/100 Dollars ($15,000,000.00) and to
revise certain covenants in the Loan Agreement by amending the Loan Agreement
and by Borrower executing and delivering a Renewal Revolving Credit Note in the
face amount of Fifteen Million and no/100s Dollars ($15,000,000) (the "Renewal
Note"); and
WHEREAS, the Borrower and Guarantor have represented to Lender that
Guarantor has no assets and no operations and therefore no ability to satisfy
the Xxxxx Guaranty if called and on that basis, Lender has agreed to execute
this Agreement without the joinder of the Guarantor 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 and Borrower 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 meaning provided therein when used herein unless the context shall require
otherwise.
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2. DEFINITIONS.
(a) The definition of the term Revolving Loan Termination Date is hereby
amended to read as follows:
"REVOLVING LOAN TERMINATION DATE shall mean the earliest of (i)
November 1, 2001; (ii) the date of termination by the Required
Lenders after the occurrence of an Event of Default; (iii) such date
of termination as is mutually agreed upon by the Lenders and the
Borrower, and (iv) the date after all Obligations have been paid in
full and no Lender is any longer obligated to make any Revolving
Loans hereunder."
(a) The term "Notes" shall include the Renewal Note; and
(c) The term "Revolving Credit Note" shall include the Renewal Note.
Borrower hereby acknowledges that the Renewal Note continues to evidence
the Revolving Loans and that the amendment to the definition of the Revolving
Loan Termination Date applies to that term as used in the Renewal Note so that
the unpaid principal balance of the Renewal Note shall be due on November 1,
2001 unless due sooner pursuant to the terms of the Loan Documents.
3. REVOLVING LOANS.
(a) Section 2.1(a) is hereby amended to read as follows:
"(a) The Lenders hereby establish, subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties made hereunder, a Revolving Line of
Credit in favor of the Borrower in the aggregate principal amount of
up to Fifteen Million and no/100 Dollars ($15,000,000.00) and agree
to make and remake one or more Revolving Loans to the Borrower, upon
the terms and conditions set forth in this Article II, from time to
time on any Business Day during the period from the date hereof
through the Revolving Loan Termination Date. The Borrower may
borrow, repay and reborrow any amount of the Revolving Line of
Credit; provided, however,
(i) the aggregate principal amount outstanding under the
Revolving Line of Credit may not at any time exceed the
lesser of (i) $15,000,000.00, less the sum of the aggregate
amount of Foreign Exchange Risk then existing and the
aggregate principal amount of Letters of Credit outstanding
and unreimbursed drawings under Letters of Credit or (ii)
the Borrowing Base; and
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(ii) the aggregate amounts advanced by any individual Lender,
together with the aggregate amount of such Lender's Letter of Credit
Participations and Foreign Exchange Risk Participations, shall not
exceed such Lender's Revolving Credit Commitment at any time.
Notwithstanding the foregoing, no Lender shall have any obligation
to lend funds at any time when an Event of Default or Default exists
or would arise in connection with the making of any such loan.
Requests for an advance under the Revolving Line of Credit may be
oral or written."
(b) Section 4.2.2(e) is hereby amended to read as follows:
"In the event the requested advance will cause the aggregate
outstanding principal balances of the Loans to exceed Ten Million
and no/100 Dollars ($10,000,000.00) the Borrower shall deliver to
the Agent a current and correct borrowing base certificate in form
and substance reasonably satisfactory to the Agent and the Lenders."
(c) Section 7.23(d) is hereby amended to read as follows:
"MAINTENANCE OF NET WORTH. Permit its Consolidated Tangible Net
Worth to be less than $33,000,000.00 during the period from
September 30, 1998 through September 29, 1999, to be less than
$36,000,000.00 during the period from September 30, 1999 through
September 29, 2000, and to be less than $39,000,000.00 during the
period from September 30, 2000 through November 1, 2001.
4. XXXXX GUARANTY. Borrower hereby warrants and represents to Lender
that Guarantor is a wholly owned subsidiary of Borrower and that Guarantor has
no assets or operations whatsoever. Borrower agrees that Borrower has no
offsets, claims or defenses to its obligations under the Loan Documents by
reason of Lender's agreement, at Borrower's request, not to require Guarantor's
execution of this Modification even though Guarantor may have some claim that
Guarantor is released from the Guaranty by such agreement. Borrower agrees
that, if Guarantor subsequently obtains assets, Borrower will cause Guarantor to
ratify and confirm the continuing validity of the Guaranty.
5. NO DEFAULT. Borrower hereby warrants and represents to Lender that,
since the date of the December 18, 1996 Third 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.
1. MISCELLANEOUS.
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(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. All
provisions of the Loan Agreement and each of the other Loan
Documents shall remain in full force and effect as modified by this
Agreement. 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.
7. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN,
THE BORROWER 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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8. WAIVER OF JURY TRIAL. THE BORROWER 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, THE BORROWER
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 and Lender have caused this agreement to be
executed as of the day and year set forth above.
Witnesses: LENDER:
FIRST UNION NATIONAL BANK, a national banking
association
/s/ Xxxxxxx Xxxxxxx By:/s/ Xxxxx Xxxxxx
---------------------------- ----------------------------------
Print Name: Xxxxxxx Xxxxxxx Print Name: Xxxxx Xxxxxx
---------------- ---------------------------
Its: Senior Vice President
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/s/ Xxxxx X. Xxxxxx'
----------------------------
Print Name: Xxxxx X. Xxxxxx'
---------------- AGENT:
FIRST UNION NATIONAL BANK, a national banking
association
By:
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Print Name: Print Name:
------------------ --------------------------------
Its:
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Print Name:
------------------ BORROWER:
XXXXXXXXX INTERNATIONAL, INC., a Delaware
corporation
/s/ Xxxxxx X. Xxxxxxxxx By:/s/ A. Xxxxxxx Xxxxxxxx, Xx.
-------------------------------- ----------------------------------------
Print Name:Xxxxxx X. Xxxxxxxxx Print Name: A. Xxxxxxx Xxxxxxxx, Xx.
-------------------- Its: Chairman of the Board of Directors/CEO
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Print Name: Xxxxxx X. Xxxxxxxxx, Xx.
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STATE OF FLORIDA )
)ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 17th day of
September, 1998, by Xxxxx Xxxxxx as Senior Vice President of FIRST UNION
NATIONAL BANK, a national banking association, on behalf of the bank. HE/She is
personally KNOWN TO ME or has produced _____________________________________ as
identification.
/S/ Xxxxxx X. Agri
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Printed Name: Xxxxxx X. Agri
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Notary Public
Commission No.: CC681707
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My Commission Expires: September 18, 0000
XXXXX XX XXXXXXX )
)ss.
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this _____ day of
____________, 199__, by ____________________ as ______________of FIRST UNION
NATIONAL BANK, a national banking association, on behalf of the bank, as Agent.
He/She is personally known to me or has produced _________________________ as
identification.
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Printed Name:
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Notary Public
Commission No.:
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My Commission Expires:
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MUNICIPALITY OF ST. XXXXXX & ST. XXXX )
)ss.
VIRGIN ISLANDS OF THE UNITED STATES )
The foregoing instrument was acknowledged before me this 17TH day of
SEPTEMBER, 1998, 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.
/s/ Xxxxxx X. Xxxxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxxxx
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Notary Public
Commission No.:
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My Commission Expires: September 29, 1999
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