WAIVER AND MODIFICATION OF CREDIT AGREEMENT
THIS AGREEMENT is made as of the 29th day of September, 2000, by and
between SOUTHTRUST BANK, an Alabama corporation formerly known as SouthTrust
Bank, National Association acting as a Lender and as Administrative Agent and
Funding Agent (collectively "Agent") pursuant to the Credit Agreement FIRST
UNION NATIONAL BANK, a national banking association acting as a Lender, NATIONAL
CITY BANK OF KENTUCKY, NATIONAL ASSOCIATION, a national banking association
acting as a Lender, SUNTRUST BANK, a Georgia corporation, formerly known as
SUNTRUST BANK, SOUTH FLORIDA, N.A., a national banking association, acting as a
Lender, and BARCLAYS BANK, P.L.C., acting as a Lender (collectively the
"Lenders"), and XXXXXXXXX INTERNATIONAL, INC., a Delaware corporation (the
"Borrower").
WITNESSETH:
WHEREAS, Lenders, Agent and Borrower entered into a Credit Agreement
dated as of November 17, 1999 (the "Credit Agreement") in connection with which
Lenders made available to Borrower a revolving line of credit in the maximum
principal amount of FIFTEEN MILLION and no/100s Dollars ($15,000,000.00) (the
"Revolving Line of Credit") evidenced by certain Revolving Credit Notes (the
"Revolving Notes") and Term Loans in the maximum principal amount of FIFTY SIX
MILLION and no/100 Dollars ($56,000,000.00) evidenced by certain Term Notes
(collectively with the Revolving Notes the "Notes"), secured and evidenced by
the Loan Documents, as defined in the Credit Agreement; and
WHEREAS, Lenders, Agent and Borrower have agreed to revise certain
provisions of the Credit Agreement.
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, Lenders, Agent 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 Credit Agreement shall have the
meaning provided therein when used herein unless the context shall require
otherwise.
2. REAFFIRMATION OF NOTE. Borrower hereby acknowledges that the Notes continue
to evidence the Revolving Loans and the Term Loans.
3. MODIFICATION OF DEFINITIONS.
Each of the definitions of "Control", "Funded Debt" and
"Senior Management" is hereby amended and restated in its entirety as follows:
"CONTROL" means that any one Person or group of related
Persons (other than Angostura Limited and/or its Affiliates) which own or
acquire more than fifty percent (50%) of the outstanding shares of voting stock
of the Borrower or any Subsidiary thereof. In the event a form 13(d) is filed
with the SEC by Borrower, Angostura or its Affiliates relating to the
acquisition of additional stock of Borrower by Angostura or its Affiliates a
copy of the form 13(d) will be provided to the Agent simultaneously with the
filing with the SEC.
"FUNDED DEBT" means without duplication, the principal balance
of all indebtedness, for money borrowed, purchase money mortgages, capitalized
leases, conditional sales contracts and similar title retention debt instruments
under which Borrower or any of its Subsidiaries is an obligor, including any
current maturities of such indebtedness, plus all debt of other entities or
Persons, other than Subsidiaries, which has been guaranteed by the Borrower or
any Subsidiary (other than the current balance of the indebtedness of Premier
Wines & Spirts, Ltd. as of the Effective Date guaranteed by Borrower), or which
is supported by a letter of credit issued for the account of the Borrower or any
Subsidiary which by its terms matures more than one year from the date of any
calculation thereof and/or which is renewable or extendible at the option of the
obligor to a date beyond one year from such date; PROVIDED THAT, for the
purposes of this Agreement, "Funded Debt" shall not include the Tank Loan or
amounts transferred quarterly to Borrower's Bahamian Subsidiary and the
bi-weekly excise tax payments made by Borrower in connection therewith, provided
that such transfers and excise payments shall not in the aggregate exceed Five
Million and no/100s Dollars ($5,000,000.00).
"SENIOR MANAGEMENT" includes, but is not limited to, Messrs.
Pincourt, Maltby, Xxxxxx, Xxxxxxxx and Xxxxxxx and specifically requires that
Messrs. Pincourt, Xxxxxx and Xxxxxx in the aggregate have and exercise the same
extent of management control and responsibilities as they had on the date of
execution of the Credit Agreement.
4. Subject to the terms of this Modification, the Lenders hereby agree to waive
any Default or Event of Default which may have occurred (i) as of March 31,
2000, as a result of the non-compliance by the Borrower as of March 31, 2000
with the provisions of Section 10.4 (Funded Debt Ratio) of the Credit Agreement;
and (ii) as a result of the non-compliance by the Borrower with the provisions
of Section 9.13 (Change of Senior Management or Control) of the Credit Agreement
solely as a result of the acquisition by Angostura Limited and/or its Affiliates
of more than fifty percent (50%) of the voting stock of the Borrower.
The foregoing waivers are expressly limited to the matters stated
herein and shall apply solely to the specific provisions of the Credit Agreement
set forth above and, in the case of Section 10.4 of the Credit Agreement, solely
for the date set forth above. The foregoing waivers shall not be deemed or
construed as a waiver of or consent to (i) the non-compliance by the Borrower
with any other covenant, term or condition of the Credit Agreement or any of the
Loan Documents, or (ii)(a) any further non-compliance by the Borrower subsequent
to March 31, 2000 with the provisions of Section 10.4 of the Credit Agreement,
or (b) any further non-compliance by the Borrower with the provisions of Section
9.13 of the Credit Agreement, as amended herein.
5. Borrower hereby warrants and represents to Lenders that, since the date of
the Credit Agreement other than violations of the financial covenant contained
in Sections 9.13 and 10.4 of the Credit Agreement caused by quarterly transfers
to Borrower's Bahamian subsidiary and the payment of excise taxes, Borrower has
been and is in compliance with all provisions of the Credit 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. Borrower hereby ratifies and confirms each of its obligations and
indebtedness under the Credit Agreement and each of the other Loan Documents, as
amended hereby, and hereby represents and warrants to the Lenders and the Agent
that Borrower neither has nor claims any defenses, counterclaims or offsets to
any such obligations or indebtedness.
7. The effectiveness of this Modification and the amendments contemplated herein
are expressly conditioned upon the payment by the Borrower to the Agent for the
prorata benefit of the Lenders an amendment fee equal to $32,500.00 and
reimbursement by the Borrower of the Agent and each of the Lenders for all
reasonable attorneys' fees and expenses incurred by each of them in connection
with this Modification.
8. MISCELLANEOUS.
(a) This agreement shall be governed by and construed in accordance with the law
of the State of Florida. Paragraph headings used herein are for convenience only
and shall not be used to interpret any term hereof. The Credit 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 Credit 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 Credit 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 Credit
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 Agent and the Lenders and their respective heirs, legal
representatives, executors, successors and assigns.
9. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN, THE BORROWER
HEREBY UNCONDITIONALLY, IRREVOCABLY AND FOREVER RELEASES, ACQUITS AND DISCHARGES
THE LENDERS AND EACH OF THE LENDERS' 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 LENDERS OR ANY ONE OR MORE OF THE LENDERS' 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 MODIFICATION, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR
CONNECTED IN ANY MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE
CREDIT AGREEMENT, AS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS, AS THE SAME MAY
BE AMENDED HEREBY, AS THE CASE MAY BE.
10. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND THE LENDERS 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 MODIFICATION 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 LENDERS ENTERING INTO THIS MODIFICATION 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 LENDERS, NOR
THE AGENT OR ANY OF THE AGENT'S COUNSEL OR THE LENDERS' COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY OF THE AGENT'S
COUNSEL OR 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 LENDERS, NOR THE AGENT OR ANY OF THE AGENT'S COUNSEL OR THE LENDERS'
COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, the Borrower, the Agent and Lenders have caused
this agreement to be executed as of the day and year set forth above.
BORROWER:
Witnesses: XXXXXXXXX INTERNATIONAL, INC.,
a Delaware corporation
/s/ Xxxxx X. Xxxxx By: /s/ A. Xxxxxxx Xxxxxxxx, Xx.
--------------------------------------- -----------------------------------
Print Name: Xxxxx X. Xxxxx A. Xxxxxxx Xxxxxxxx, Xx.
--------------------------- Its: Chairman of the Board of
Directors/CEO
/s/ Xxxx Xxxxxxx
---------------------------------------
Print Name: Xxxx Xxxxxxx
----------------------------
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this 7th day of
December, 2001 by A.Xxxxxxx Xxxxxxxx, Xx., as Chairman/CEO of Xxxxxxxxx
International, Inc. a Delaware corporation, on behalf of the corporation. He/she
is personally known to me or has produced ____________________ (type of
identification) as identification.
/s/ Xxxxxx X. Xxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxxx X. Xxx, #CC 934433, Expires
June 20, 2004
-----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
THE AGENT:
SOUTHTRUST BANK, FORMERLY KNOWN AS
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
Witnesses:
/s/ Xxxxxxx Xxxxx By: /s/ D.Xxx Xxxxxxxxx
------------------------------------ --------------------------
Print Name: Xxxxxxx Xxxxx Print Name: D. Xxx Xxxxxxxxx
------------------------- -------------------
Title: Group Vice President
------------------------
/s/ Xxxxxxx Xxxx
-----------------------------------
Print Name: Xxxxxxx Xxxx
------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 7th day of
December, 2001 by D. Xxx Xxxxxxxxx, as Group Vice President of SouthTrust Bank,
on behalf of the bank. He/she is personally known to me or has produced N/A
(type of identification) as identification.
/s/ Xxxxx X. Xxxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxx X. Xxxx, #CC 965574, Expires
October 20, 2004
----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
THE LENDERS:
SOUTHTRUST BANK, FORMERLY KNOWN AS
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
Witnesses:
/s/ Xxxxxxx Xxxxx By:/s/ D. Xxx Xxxxxxxxx
------------------------------------ ---------------------------
Print Name: Xxxxxxx Xxxxx Print Name: D. Xxx Xxxxxxxxx
------------------------- -------------------
Title: Group Vice President
------------------------
/s/ Xxxxxxx Xxxx
-----------------------------------
Print Name: Xxxxxxx Xxxx
------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 17 day of
November, 20010 by D. Xxx Xxxxxxxxx as Group Vice President of SouthTrust Bank,
on behalf of the bank. He/she is personally known to me or has produced N/A
(type of identification) as identification.
/s/ Xxxxx X. Xxxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxx X. Xxxx, #CC 965574, expires
October 20, 2004
-----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
FIRST UNION NATIONAL BANK
Witnesses:
/s/ Xxxxxxxxx Xxxxxxxx By: /s/ X. Xxxxxx Xxxxxx
--------------------------------------- ---------------------------
Print Name: Xxxxxxxxx Xxxxxxxx Print Name: X. Xxxxxx Xxxxxx
---------------------------- -------------------
Title: Senior Vice President
------------------------
/s/ Xxxx X. X'Xxxxx
---------------------------------------
Print Name: Xxxx X. X'Xxxxx
----------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 7th day of
December, 2001 by Xxxxxx Xxxxxx , as Senior Vice President of First Union
National Bank, on behalf of the bank. He/she is personally known to me or has
produced ____________________ (type of identification) as identification.
/s/ Xxxxxx Xxxxxxxxxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxxx Xxxxxxxxxx, # CC 944979,
Expires June 13, 2004
--------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
SUNTRUST BANK, FORMERLY KNOWN AS
SUNTRUST BANK, SOUTH FLORIDA, N.A.
Witnesses:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------- ---------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxxxxx X. Xxxxx
---------------------------- ------------------
Title: Vice President
------------------------
/s/ Xxxxxxxx X. Power
---------------------------------------
Print Name: Xxxxxxxx X. Power
----------------------------
STATE OF FLORIDA
COUNTY OF PALM BEACH
The foregoing instrument was acknowledged before me this 28th day of
November, 2001 by Xxxxxxx X. Xxxxx, as Vice President of SunTrust Bank, on
behalf of the bank. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxxx Xxxxxxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxxx Xxxxxxx, #CC 853578,
Expires July 11, 2003
----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
NATIONAL CITY BANK OF KENTUCKY,
NATIONAL ASSOCIATION
Witnesses:
/s/ Xxxxx Xxxx By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------- ---------------------------
Print Name: Xxxxx Xxxx Print Name: Xxxx X. Xxxxxxxxx
---------------------------- -------------------
Title: Vice President
------------------------
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Print Name: Xxxxx Xxxxxxxx
----------------------------
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this 13 day of
December, 2000 by Xxxx Xxxxxxxxx, as VP of National City Bank of Kentucky,
National Association, on behalf of the bank. He/she is personally known to me
or has produced ____________________ (type of identification) as
identification.
/s/ Xxxxxx X. Xxxx
-------------------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxxx X. Xxxx, Commission
Expires October 14, 2003
--------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
BARCLAYS BANK, P.L.C.
Witnesses:
/s/ Xxxxxxx Xxxxxx By:/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Roll
-------------------------------- ---------------------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxxxxx Xxxxxx Xxxxxxx Roll
---------------------- -------------------------------
Title: Director Associate Director
-----------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------
Print Name: Xxxxxx Xxxxxxx
--------------------
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 4th day of
December, 2001 by Xxxxxxx Xxxxxx and Xxxxxxx Roll, as Director and Associate
Director of Barclays Bank, P.L.C., on behalf of the bank. He/she is personally
known to me or has produced _0___________________ (type of identification) as
identification.
/s/ Xxxxxx Xxxxxxx
------------------
NOTARY PUBLIC, STATE OF FLORIDA
Xxxxxx Xxxxxxx, #CC 629322,
Expires March 27, 2001
----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
