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FIRST AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
among
XXXXXX CORPORATION
FROST BROS. ENTERPRISES, INC.
and MAQUILADORA SUR, S.A. DE C.V.
AS SELLERS,
and
SUPREME INTERNATIONAL CORPORATION
AS BUYER
DATED AS OF: FEBRUARY 24, 1999
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FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of February 24, 1999, by and
among XXXXXX CORPORATION, a Delaware corporation ("Xxxxxx"), FROST BROS.
ENTERPRISES, INC., a Texas corporation ("Frost"), MAQUILADORA SUR, S.A. DE C.V.,
a Mexican corporation ("Maquiladora" and, collectively with Xxxxxx and Xxxxx,
the "Sellers"), and SUPREME INTERNATIONAL CORPORATION, a Florida corporation
("Buyer"). Capitalized terms not otherwise defined herein shall have the
meanings provided therefor in the Revolving Credit Agreement (as defined below).
WITNESSETH:
WHEREAS the Sellers and Buyer entered into that certain
Purchase and Sale Agreement, dated as of December 28, 1998 (the "Purchase and
Sale Agreement");
WHEREAS on December 29, 1998, Xxxxxx filed a petition for
relief under chapter 11 of the Bankruptcy Code with the Bankruptcy Court for the
Southern District of New York (the "Bankruptcy Court");
WHEREAS on January 6, 1999, Xxxxxx filed a motion with the
Bankruptcy Court seeking, INTER alia, approval of the Purchase and Sale
Agreement subject to higher and better offers;
WHEREAS the Bankruptcy Court held an auction with respect to
the Assets on February 24, 1999; and
WHEREAS Buyer submitted an offer at the auction that was
determined to be the highest and best offer by the Bankruptcy Court.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. the Purchase
and Sale Agreement is hereby amended as follows:
(i) Section 2.1(c) of the Purchase and Sale Agreement is
hereby amended and restated as follows:
"(c) Buyer shall pay Xxxxxx $27 million, LESS the
amount of the Deposit, for all Assets other than the Inventory."
(ii) Section 3.1(f) of the Purchase and Sale Agreement is
hereby amended by deleting the word "and" after subsection (vi) and adding the
following after subsection (vii):
"and (viii) Liabilities of any Seller that relate solely to
Trial Court Case No. 97-07-14605-CV, XXXXX XXXXXXX XXXXXXXXX-XXXXXX, ET AL VS.
XXXXXX CORP., ET AL, in the 365th Judicial District Court of Maverick County,
Texas."
SECTION 2. REPRESENTATIONS AND WARRANTIES. Buyer hereby
represents and warrants to Sellers that the execution, delivery and performance
of this First Amendment has been duly authorized by all necessary corporate
action on the part of Buyer and that this First Amendment constitutes a legal,
valid and binding obligation of Buyer, enforceable against it in accordance with
its terms subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors rights and
remedies generally, and subject, as to enforceability, to the effect of general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity).
SECTION 3. EFFECT ON THE PURCHASE AND SALE AGREEMENT. Except
as amended hereby the Purchase and Sale Agreement and Ancillary Agreements shall
remain in full force and effect. Nothing in this First Amendment shall be deemed
to (i) constitute a waiver of compliance by the Buyer of any term, provision or
condition of
the Purchase and Sale Agreement or any Ancillary Agreement or (ii) prejudice any
right or remedy that any Seller may now have or may have in the future under or
in connection with the Purchase and Sale Agreement or any Ancillary Agreement.
SECTION 4. COUNTERPARTS. This First Amendment may be executed
in any number of counterparts and by different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement.
SECTION 6. GOVERNING LAW. This First Amendment shall be deemed
to be a contract under the laws of the State of New York, without regard to
choice of law principles, and for all purposes shall be governed by and
construed and enforced in accordance with the laws of said state.
SECTION 7. HEADINGS. Section headings herein are included
herein for the convenience of reference only and shall not constitute part of
this First Amendment for any other purpose.
SECTION 8. REFERENCES. References herein and in the Purchase
and Sale Agreement and the Ancillary Agreements to the "Purchase and Sale
Agreement", "this Agreement", "hereunder", "hereof", or words of like import
referring to the Purchase and Sale Agreement, shall mean and be a reference to
the Purchase and Sale Agreement as amended hereby.
IN WITNESS WHEREOF, the parties have caused this First
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
XXXXXX CORPORATION
By: /S/ XXXX XXXX
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Name: Xxxx Xxxx
Title: COO & General Counsel
FROST BROS. ENTERPRISES, INC.
By: /S/ XXXX XXXX
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Name: Xxxx xxxx
Title: Vice President
MAQUILADORA SUR, S.A. DE C.V.
By: /S/ XXXX XXXX
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Name: Xxxx Xxxx
Title: Vice President
SUPREME INTERNATIONAL CORPORATION
By: /S/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
Title: Chairman
