Exhibit 10.4
SECOND AMENDMENT
TO
STOCKHOLDERS AGREEMENT
by and among
MCII HOLDINGS (USA), INC.
XXXXXX XXXXXXXXXX & XXXX FUND III L.P.
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
CO-INVESTMENT MERCHANT FUND 3, L.L.C.
CONSORCIO G GRUPO XXXX, S.A. de C.V.
and
XXXXXX XXXXX XXXXXX
dated as of
August 18, 1999
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT (hereinafter referred to
as this "Second Amendment"), dated as of August 18, 1999, by and among MCII
Holdings (USA), Inc., a Delaware corporation ("MCII Holdings"), Xxxxxx
Xxxxxxxxxx & Xxxx Fund III L.P., a Delaware limited partnership ("JLL"), CIBC
WG Argosy Merchant Fund 2, L.L.C. ("CIBC Argosy"), Co-Investment Merchant
Fund 3,LLC("CMF"), Consorcio G Grupo Xxxx, S.A. de C.V., a corporation
organized under the laws of the United Mexican States ("Xxxx") and Xxxxxx
Xxxxx Xxxxxx.
WHEREAS, MCII Holdings, JLL, CIBC Argosy, CMF, Xxxx and Xxxxxx Xxxxx
Xxxxxx entered into a Stockholders Agreement dated as of June 16, 1999 (the
"Agreement"); and
WHEREAS, MCII Holdings, JLL, CIBC Argosy, CMF, Xxxx and Xxxxxx Xxxxx
Xxxxxx entered into a First Amendment to Stockholders Agreement dated as of
July 16, 1999; and
WHEREAS, MCII Holdings, JLL, CIBC Argosy, CMF, Xxxx and Xxxxxx Xxxxx
Xxxxxx desire to amend the Agreement, as amended, upon the terms and subject
to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them
in the Agreement.
ARTICLE II
AMENDMENT TO ARTICLE IV OF THE AGREEMENT
Section 2.1 AMENDMENT TO SECTION 4.04 OF THE AGREEMENT. The last
sentence of Section 4.04 of the Agreement is hereby amended in its entirety
to read as follows:
"Notwithstanding the foregoing, the provisions of this
Section 4.04 shall not apply to the Transfer by JLL of a maximum of 11,000
Shares to Coaches, LLC which shall occur within seventy-five days of the date
hereof."
ARTICLE III
AMENDMENT TO ARTICLE VII OF THE AGREEMENT
Section 3.1 AMENDMENT TO SECTION 7.14 OF THE AGREEMENT. Section
7.14 of the Agreement is hereby amended and restated in its entirety to read
as follows:
"The parties acknowledge and agree that JLL intends to Transfer
up to a maximum of 11,000 Shares (the "JLL Transferred Shares") to Coaches,
LLC within seventy-five days of the date hereof. The parties agree that,
following such Transfer, the provisions of Sections 4.04, 4.05, 4.06, Article
V and Section 6.01 shall apply to the JLL Transferred Shares and the holders
thereof as if such Shares continued to be owned by JLL."
ARTICLE IV
MISCELLANEOUS
Section 4.1 AMENDMENT. All references in the Agreement (and in
the other agreements, documents and instruments entered into in connection
therewith) to the "Agreement" shall be deemed for all purposes to refer to
the Agreement, as amended by this Second Amendment.
Section 4.2 LIMITED EFFECT. Except as expressly modified
herein, the Agreement shall continue to be, and shall remain, in full force
and effect and the valid and binding obligations of the parties thereto in
accordance with its terms.
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Section 4.3 COUNTERPARTS. This Second Amendment may be executed
in two or more counterparts, each of which shall be considered one and the
same agreement and shall become effective when two or more counterparts have
been signed by each of the parties and delivered to the other parties.
Section 4.4 GOVERNING LAW. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of
Delaware without regard to the principles of conflicts of law thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed as of the date first written above.
MCII HOLDINGS (USA), INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
XXXXXX XXXXXXXXXX & XXXX FUND III, L.P.
By: JLL ASSOCIATES III, LLC,
its General Partner
By:
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Xxxxxxx X. Xxxxxxxx
Managing Member
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By:
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Xxx Xxxxxx, authorized signatory
CO-INVESTMENT MERCHANT FUND 3, LLC
By:
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Xxx Xxxxxx, authorized signatory
CONSORCIO G GRUPO XXXX, S.A. de C.V.
By:
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Name: Xxxxxx Xxxxx Xxxxxx
Title: President
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XXXXXX XXXXX XXXXXX
