THIRD MODIFICATION OF LOAN AGREEMENT
THIS AGREEMENT is made as of the 18th day of December, 1996, by and
between FIRST UNION NATIONAL BANK OF FLORIDA, 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") and
XXXXXXXXX IMPORTS, LTD., a New York corporation (formerly known as Xxxxx
Importers, Ltd.) (the "Guarantor").
WITNESSETH:
WHEREAS, Lender, Borrower and 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 and Modification of Loan Agreement dated as of August 19,
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, 1999 and to revise certain
financial 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 Twenty Million and no/100s Dollars ($20,000,000) (the "Renewal Note");
and
WHEREAS, the Guarantor has agreed to execute this Agreement 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, Borrower and Guarantor
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.
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, 1999; (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."
b) 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,
1999 unless due sooner pursuant to the terms of the Loan Documents.
3. REVISIONS TO FINANCIAL COVENANTS.
(a) Section 7.23(a) is hereby amended to read as follows:
"(a) LEVERAGE RATIO. Permit the ratio of Total Funded Debt
to Consolidated Tangible Net Worth to exceed 2.25 to 1
at any time from September 30, 1996 through September
29, 1997 or to exceed 1.75 to 1 at any time from
September 30, 1997 through September 29, 1998 or to
exceed 1.50 to 1 at any time on or after September 30,
1998." Compliance shall be certified by the Chief
Executive Officer or the Chief Financial Officer of
Borrower at the end of each fiscal quarter of Borrower
in form acceptable to Lender.
(b) Section 7.23(b) is hereby amended to read as follows:
"(b) FIXED CHARGE COVERAGE TEST. Permit the ratio of
Earnings Before Depreciation, Amortization, Interest
and Taxes to actual Fixed Charges tested as of the end
of each fiscal quarter of Borrower for each period of
four consecutive fiscal quarters ending with that
fiscal quarter commencing October 1, 1995 to be less
than 1.50 to 1."
(c) Section 7.23(c) is hereby amended to read as follows:
"(c) INTEREST COVERAGE TEST. Permit the ratio of Earnings
Before, Depreciation, Amortization, Interest and Taxes
to Interest Expense at the end of the fiscal year of
Borrower ending September 30, 1997 to be less than 2.25
to 1 and at the end of each fiscal year of Borrower
thereafter to be less than 2.50 to 1."
(d) Section 7.23(d) is hereby amended to read as follows:
"(d) MAINTENANCE OF NET WORTH. Permit its Consolidated
Tangible Net Worth to be less than $27,000,000.00
during the period beginning on September 30, 1996
through September 29, 1997, less than $30,000,000.00
during the period beginning on September 30, 1997
through September 29, 1998, less than $33,000,000.00
during the period beginning September 30, 1998 through
September 29, 1999 or less than $36,000,000.00 on and
after September 30, 1999. Compliance shall be
certified by the Chief Executive Officer or Chief
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Financial Officer of Borrower at the end of each fiscal
quarter of Borrower."
4. XXXXX GUARANTY. Guarantor hereby ratifies and confirms the continuing
validity of the Xxxxx Guaranty and any other documents or agreements given by
Guarantor in connection with the Revolving Line of Credit, the Loan Agreement or
any other Loan Documents notwithstanding the amendments to the Loan Agreement
contained herein and hereby further consents to such amendments.
5. NO DEFAULT. Borrower hereby warrants and represents to Lender that,
since the date of the August 19, 1996 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.
6. MISCELLANEOUS.
(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.
8. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN, EACH
OF THE BORROWER AND THE GUARANTOR HEREBY UNCONDITIONALLY, IRREVOCABLY AND
FOREVER RELEASES, ACQUITS AND
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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.
9. WAIVER OF JURY TRIAL. THE BORROWER, THE GUARANTOR 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, EACH OF
THE BORROWER AND THE GUARANTOR 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, Lender and Guarantor have caused this
agreement to be executed as of the day and year set forth above.
Witnesses: LENDER:
FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association
By: . . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . . Print Name: Xxxxx Xxxxxxxxx
Its: Vice President
. . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . .
AGENT:
FIRST UNION NATIONAL BANK OF FLORIDA, a
national banking association
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By:. . . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . . Print Name: Xxxxx Xxxxxxxxx
Its: Vice President
. . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . .
BORROWER:
XXXXXXXXX INTERNATIONAL, INC., a
Delaware corporation
By:. . . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . . Print Name: A. Xxxxxxx Xxxxxxxx, Xx.
Its: Chairman of the Board of
Directors/CEO
. . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . .
[SIGNATURES CONTINUED ON NEXT PAGE]
XXXXXXXXX IMPORTS, LTD., a New York
corporation (f/k/a Xxxxx Importers,
Ltd.)
By:. . . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . . Print Name: A. Xxxxxxx Xxxxxxxx, Xx.
Its: Chairman of the Board of Directors
. . . . . . . . . . . . . . . . . .
Print Name: . . . . . . . . . . . .
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this _____ day of
____________, 199__, by XXXXX XXXXXXXXX as Vice President of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association, on behalf of the bank.
She is personally known to me or has produced _________________________ as
identification.
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .Printed Name:
Notary Public
. . . . . . . . . . . . .Commission No.:
My Commission Expires:
-5-
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this _____ day of
____________, 199__, by XXXXX XXXXXXXXX as Vice President of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association, on behalf of the bank,
as Agent. She is personally known to me or has produced
_________________________ as identification.
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .Printed Name:
Notary Public
. . . . . . . . . . . . .Commission No.:
My Commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this _____ day of
____________, 199__, 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.
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .Printed Name:
Notary Public
. . . . . . . . . . . . .Commission No.:
My Commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this _____ day of
____________, 199__, by A. XXXXXXX XXXXXXXX, XX. as Chairman of the Board of
Directors of XXXXXXXXX IMPORTS, LTD. (f/k/a Xxxxx Importers, Ltd.), a New York
corporation, on behalf of the corporation. He is personally known to me or has
produced _________________________ as identification.
. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .Printed Name:
Notary Public
. . . . . . . . . . . . .Commission No.:
My Commission Expires:
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RENEWAL REVOLVING CREDIT NOTE
$20,000,000.00 As of December 18, 1996
FOR VALUE RECEIVED, XXXXXXXXX INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), hereby promises to pay to the order of
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association, at
the offices of First Union National Bank of Florida (the "Agent"), located at
000 Xxxxxx Xxxxxxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (or at such other place or
places as the Agent may designate), the principal sum of up to
TWENTY MILLION AND NO/100 DOLLARS ($20,000,000.00), or such lesser amount
as may constitute the unpaid principal amount of the Revolving Credit Loans, on
the Revolving Loan Termination Date (as such term is defined in the Loan
Agreement hereinafter referred to), under the terms and conditions of this
promissory note (the "Note") and in accordance with a certain Loan Agreement,
dated as of November 22, 1994 as modified by Modification of Loan Agreement
dated as of February 26, 1996, by Modification of Loan Agreement dated as of
August 19, 1996 and by Third Modification of Loan Agreement dated as of the date
hereof, by and between the Borrower, Xxxxxxxxx Imports, Ltd., a New York
corporation f/k/a Xxxxx Importers, Ltd. (the "Guarantor"), the Agent and the
Lenders set forth therein (as amended, modified or supplemented from time to
time, the "Loan Agreement"). The Borrower also unconditionally promises to pay
interest on the aggregate unpaid principal amount of this Note on each Interest
Payment Date (as defined in the Loan Agreement) at the rate or rates provided in
the Loan Agreement.
This Note is issued to evidence the Revolving Line of Credit made by the
Lenders pursuant to Article II of the Loan Agreement. The defined terms in the
Loan Agreement are used herein with the same meanings given them in the Loan
Agreement. All of the terms, conditions and covenants of the Loan Agreement are
expressly made a part of this Note by reference in the same manner and with the
same effect as if set forth herein at length and any holder of this Note is
entitled to the benefits of and remedies provided in the Loan Agreement and any
other agreements by and between the Borrower and the Guarantor, and either of
them, and the Agent or any of the Lenders. Reference is made to the Loan
Agreement for provisions for maturity, payment, prepayment and acceleration.
This Note renews and evidences the indebtedness under that certain Revolving
Credit Note dated as of November 22, 1994.
If the principal of this Note or any portion hereof and, to the extent
permitted by law, interest hereon shall not be paid when due, whether by
acceleration or otherwise, the same shall bear interest for any period during
which the same shall be overdue at a rate per annum equal to the Default Rate
set forth in the Loan Agreement and payable on demand.
The Borrower hereby agrees to pay all costs incurred by any holder hereof,
including reasonable attorneys' fees (including those for appellate
proceedings), incurred in connection with any Event of Default (as defined in
the Loan Agreement), or in connection with the collection or attempted
collection or enforcement hereof, whether or not legal proceedings may have been
instituted.
All parties to this Note, including the Borrower and any sureties,
endorsers or guarantors, hereby waive presentment for payment, demand, protest,
notice of dishonor, notice of acceleration of maturity, and all defenses on the
ground of extension of time for payment hereof, and agree to continue and remain
bound for the payment of principal, interest and all other sums payable
hereunder, notwithstanding any change or changes by way of release, surrender,
exchange or substitution of any security for this Note or by way of any
extension or extensions of time for payment of principal or interest; and all
such parties waive all and every kind of notice of such change or changes and
agree that the same may be made without notice to or consent of any of them.
The rights and remedies of
the holder as provided herein shall be cumulative and concurrent and may be
pursued singularly, successively or together at the sole discretion of the
holder, and may be exercised as often as occasion therefor shall occur, and the
failure to exercise any such right or remedy shall in no event by construed as a
waiver or release of the same.
Anything herein to the contrary notwithstanding, the obligations of the
borrower under this Note shall be subject to the limitation that payments of
interest to the Lender shall not be required to the extent that receipt of any
such payment by the Lender would be contrary to provisions of law applicable to
the Lender (if any) which limit the maximum rate of interest which may be
charged or collected by the Lender, PROVIDED, HOWEVER, that nothing herein shall
be construed to limit the Lender to presently existing maximum rates of
interest, if an increased interest rate is hereafter permitted by reason of
applicable federal or state legislation. In the event that the borrower makes
any payment of interest, fees or other charges, however denominated, pursuant to
this Note, which payment results in the interest paid to the Lender to exceed
the maximum rate of interest permitted by applicable law, any excess over such
maximum shall be applied in reduction of the principal balance owed to the
Lender as of the date of such payment, or if such excess exceeds the amount of
principal owed to the Lender as of the date of such payment, the difference
shall be paid by the Lender to the Borrower.
THE BORROWER HEREBY, AND THE LENDER BY ITS ACCEPTANCE OF THIS NOTE,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER 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 REVOLVING CREDIT NOTE OR SAID LOAN AGREEMENT
AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PART. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
ENTERING INTO SAID LOAN AGREEMENT AND MAKING THE LOANS EVIDENCED BY THIS NOTE.
FURTHER, THE BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
LENDER, NOR THE LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
THE LENDER 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.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Florida, without regard to the principles of
conflicts thereunder. The Borrower hereby submits to the jurisdiction and venue
of the federal and state courts located in Palm Beach County, Florida.
IN WITNESS WHEREOF, the Borrower has caused this Note to be dated for
reference as of the date first above written but have in fact caused this Note
to be executed under seal by its duly authorized corporate officer as of this
_____ day of December, 1996.
XXXXXXXXX INTERNATIONAL,
INC., A DELAWARE CORPORATION
By: . . . . . . . . . . . . . . . .
A. Xxxxxxx Xxxxxxxx, Xx.,
Chairman and CEO
STATE OF _________________ )
) SS:
COUNTY OF ________________ )
I, ________________________________, a Notary Public in and for the county
and state aforesaid, do hereby certify that A. Xxxxxxx Xxxxxxxx, Xx. personally
appeared before me this day and, being duly sworn, says that he is the President
of Xxxxxxxxx International, Inc., a Delaware corporation, and that said writing
was signed by him in behalf of said corporation by its authority duly given.
And the said A. Xxxxxxx Xxxxxxxx, Xx. acknowledged the said writing to be the
act and deed of said corporation.
WITNESS my hand and notarial seal, this _____ day of December, 1996.
. . . . . . . . . . . . . . . . . . . . . .
Notary Public, State of Florida
. . . . . . . . . . . . . . . . Print Name:
My Commission Expires:
