Exhibit 10.4
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of July 2, 2004 (this "Amendment") amends
the Reimbursement Agreement dated as of July 2, 2002 (as previously amended, the
"Reimbursement Agreement") between Xxxxxxxx-Sonoma, Inc. (the "Parent") and
Fleet National Bank (the "Bank"). Capitalized terms used but not otherwise
defined herein have the respective meanings given to them in the Reimbursement
Agreement.
WHEREAS, the Parent and the Bank have entered into the Reimbursement
Agreement; and
WHEREAS, the Parent and the Bank desire to amend the Reimbursement
Agreement as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3, the Reimbursement Agreement is amended as
follows:
1.1 Amendment to Facility Size. Recital A is amended by replacing the
reference to "$40,000,000"with "$45,000,000".
1.2 Amendment to Definition of Maturity Date. The definition of "Maturity
Date" is amended by replacing the reference to "second anniversary" with "third
anniversary".
1.3 Amendment to Section 2.1. Section 2.1 is amended by restating the
first proviso therein to read as follows: "provided, however, that the Letter of
Credit Usage shall not exceed $45,000,000 at any time".
1.4 Deletion of Sections 6.23 and 7.4. The text of each of Sections 6.23
and 7.4 is deleted and replaced with "[RESERVED]"
1.5 Amendment to Section 9.21. Section 9.21 is amended by deleting the
last sentence thereof.
SECTION 2 Representations and Warranties. The Parent represents and
warrants to the Bank that, after giving effect to the effectiveness hereof:
(a) each warranty set forth in Article 6 of the Reimbursement Agreement,
as amended hereby, is true and correct in all material respects as of the date
of the execution and delivery of this Amendment by the Parent, with the same
effect as if made on such date, except to the extent any such warranty relates
specifically to another date (in which case it was true and correct in all
material respects as of such other date);
(b) no Default exists; and
(c) there has not occurred a material adverse change since February 2,
2004 in the business or financial condition, prospects, performance or
operations of the Parent and its
Subsidiaries taken as a whole or in the facts and information regarding such
Persons as represented to date.
SECTION 3 Effectiveness. The amendments set forth herein shall become
effective as of July 2, 2004 when the Bank has received the following:
(a) a counterpart of this Amendment executed by the Parent;
(b) a Confirmation, substantially in the form of Exhibit A, executed by
each Subsidiary Guarantor;
(c) an opinion of counsel to the Parent in form and substance reasonably
acceptable to the Bank;
(d) evidence that the Parent has paid all accrued and invoiced Attorney
Costs of the Bank; and
(e) such other documents as the Bank may reasonably request.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As amended hereby, the Reimbursement
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Reimbursement Agreement and the other Transaction Documents to
"Reimbursement Agreement" or similar terms shall refer to the Reimbursement
Agreement as amended hereby.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York applicable to contracts made and
to be performed entirely within such state.
4.4 Successors and Assigns. This Amendment shall be binding upon the
Parent and the Bank and their respective successors and assigns, and shall inure
to the benefit of the Parent and the Bank and the successors and assigns of the
Bank.
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Delivered as of the day and year first above written.
XXXXXXXX-SONOMA, INC.
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Chief Financial Officer
FLEET NATIONAL BANK
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
Title: Senior Vice President
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