Exhibit 10.7
SECURED TRADE CREDIT PROGRAM
LETTER AGREEMENT
FROM: [Vendor ID/Info Inserted Here]
(referred to as "Vendor")
TO: Xxxxxxxx'x Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
It is our understanding that Xxxxxxxx'x has implemented a Secured Trade Credit
Program ("Program") which will extend to participating "Approved Trade
Creditors" the benefit of a junior lien or "Trade Creditor Lien" in all of
Xxxxxxxx'x and its subsidiaries' assets that secure the $67.5 million
revolving credit facility arranged for Xxxxxxxx'x by Bank of America, N.A. and
the $67.5 million term credit facility arranged for Xxxxxxxx'x by an affiliate
of Farallon Capital Management, LLC (collectively, the "Senior Credit
Facility"). The Trade Creditor Lien will be junior to all liens from time to
time securing the Senior Credit Facility.
The Trade Creditor Lien will cover (1) the amounts owed and past due as of
July 31, 2004 (inclusive of interest, as applicable, as of such date), with
respect to asset merchandise invoices and memo merchandise invoices, which
remain unpaid per Xxxxxxxx'x records, in the aggregate amount of
$__________________ (the "Standstill Amount"), (2) accrued and unpaid interest
with respect to the Standstill Amount at the applicable rate and as provided
below, (3) all amounts owed with respect to asset goods received from Vendor
by Xxxxxxxx'x and/or memo goods received from Vendor and sold by Xxxxxxxx'x,
in each case on and after the first business day of the month in which
Xxxxxxxx'x receives and accepts this Letter Agreement, and (4) if this Letter
Agreement is received and accepted by Xxxxxxxx'x on or before September 15,
2004, all amounts owed with respect to asset goods received from Vendor by
Xxxxxxxx'x and/or memo goods received from Vendor and sold by Xxxxxxxx'x, in
each case prior to September 1, 2004 for which payment to Vendor was not past
due as of July 31, 2004 and was not included in the Standstill Amount (the
amounts described in (1), (2), (3) and, if applicable, (4), collectively, the
"Trade Creditor Debt" and the amounts described in (4) regardless of the
timing of execution of this Letter Agreement, the "Category 4 Amount").
Vendor desires to participate in the Program and to receive the benefit of the
Trade Creditor Lien. As an inducement to Xxxxxxxx'x to xxxxx to Vendor status
in the Program as an Approved Trade Creditor, Vendor represents, covenants,
warrants and agrees that Vendor:
(a) has read the Secured Trade Credit Program Terms and Conditions
and Statement of Qualifications (the "Statement of Qualifications")
published by Xxxxxxxx'x and incorporated herein by reference, meets
all the requirements set forth in the Statement of Qualifications and
shall, together with its participation in the Program, be governed by
the terms and conditions of the Statement of Qualifications, which
includes:
(i) continuing to supply goods to Xxxxxxxx'x based upon
normal and customary trade terms, practices and programs in
accordance with the Statement of Qualifications;
(ii) accepting payment of the Standstill Amount pursuant to
the schedule set forth below, with interest thereon
commencing on August 1, 2004 at the rate of six percent (6%)
per annum (or at a default rate of eight percent (8%) per
annum if and when applicable pursuant to the Statement of
Qualifications), with the first interest payment to be made
on September 30, 2004 and thereafter quarterly in arrears
through and including December 31, 2005;
o On September 30, 2004, to the extent that the
aggregate Standstill Amount of all Approved Trade
Creditors exceeds $25 million as of September 15,
2004, Xxxxxxxx'x shall pay Vendor its pro rata
share of 10% of the then aggregate amount of the
Standstill Amounts;
o On December 31, 2004, Xxxxxxxx'x shall pay Vendor
its pro rata share of the amount by which the then
aggregate Standstill Amount of all Approved Trade
Creditors exceeds $17.5 million;
o On October 31, 2005, Xxxxxxxx'x shall pay Vendor
its pro rata share of the amount by which the then
aggregate Standstill Amount of all Approved Trade
Creditors exceeds $15 million;
o On December 31, 2005, Xxxxxxxx'x shall pay Vendor
its remaining Standstill Amount;
(iii) accepting payment of the Category 4 Amount upon the
latest to occur of (A) three business days following
execution of this Letter Agreement, (B) September 15, 2004,
or (C) the date upon which the Category 4 Amount becomes due
in the ordinary course of business; and
(iv) forbearing from exercising any remedy to collect the
Standstill Amount and the interest thereon;
(b) hereby acknowledges that the violation of Vendor's agreement to
forbear from exercising any remedy to collect the Standstill Amount
and the interest thereon will cause irreparable harm to Xxxxxxxx'x
and agrees that any such violation shall give rise to the following
remedies (which constitute the only remedies available to Xxxxxxxx'x
and as to which Vendor hereby waives all defenses): (i) immediate
injunctive relief as may be necessary to restore the status quo; (ii)
loss of Vendor's interest in the Trade Creditor Lien; and (iii) any
applicable damages for commencing any Insolvency Proceeding (as
defined in the Statement of Qualifications);
(c) shall notify Xxxxxxxx'x at the above address promptly in writing
at such time as Vendor ceases to meet any one or more of the
requirements set forth in the Statement of Qualifications; and
(d) hereby (i) appoints Xxxxxxx Xxxx, or such other designee of the
Vendor Committee (as defined in the Statement of Qualifications) as
designated by the Vendor Committee prior to the execution of the
Collateral Trust Agreement, to act as Collateral Trustee (the
"Collateral Trustee") for the benefit of Vendor and the other
Approved Trade Creditors in respect of the Trade Creditor Lien on the
terms and conditions set forth in the Trade Creditor Lien Documents
(as defined in the Statement of Qualifications), (ii) authorizes the
Collateral Trustee to act on the terms and conditions set forth in
the Trade Creditor Lien Documents and (iii) acknowledges that it has
received copies of, has read and agrees to all of the terms of and
agrees to be bound by the Trade Creditor Lien Documents and its
rights and obligations thereunder.
To participate in the Program, an authorized representative of Vendor must
sign and return this Letter Agreement to Xxxxxxxx'x at the above address for
review and written acceptance by Xxxxxxxx'x.
Signature of Authorized Vendor Representative
_______________________________________
Name (Type or Print)
_______________________________________
Title
_______________________________________
Date
Note: Written notices from Xxxxxxxx'x concerning the Program, including
Xxxxxxxx'x written acceptance of this Letter Agreement, will be sent to the
address on the reverse side of this Letter Agreement unless a different
address is specified below:
_______________________________________
Address
_______________________________________
City, State, Postal Code
RECEIVED AND ACCEPTED:
XXXXXXXX'X INC.
By: ____________________________ Date:_____________________
SECURED
TRADE CREDIT PROGRAM
TERMS AND CONDITIONS AND
STATEMENT OF QUALIFICATIONS
---------------------------
1. Debt Secured By Trade Creditor Lien.
-----------------------------------
a. The Trade Creditor Lien shall cover (i) the amounts owed and past
due as of July 31, 2004 (inclusive of interest, as applicable, as of such
date) with respect to asset merchandise invoices and memo merchandise
invoices, which remain unpaid per Xxxxxxxx'x records, in the aggregate amount
set forth in the Letter Agreement (the "Standstill Amount"); (ii) any accrued
and unpaid interest on the Standstill Amount from and after August 1, 2004, as
set forth in the Letter Agreement; (iii) all amounts owed with respect to
asset goods received from Vendor by Xxxxxxxx'x and/or memo goods received from
Vendor and sold by Xxxxxxxx'x, in each case on or after the first business day
of the month in which the Secured Trade Credit Program Letter Agreement (the
"Letter Agreement") executed by Vendor is received and accepted in writing by
Xxxxxxxx'x; and (iv) if the Letter Agreement executed by Vendor is received
and accepted in writing by Xxxxxxxx'x on or before September 15, 2004, all
amounts owed with respect to asset goods received from Vendor by Xxxxxxxx'x
and/or memo goods received from Vendor and sold by Xxxxxxxx'x, in each case
prior to September 1, 2004, for which payment was not past due as of July 31,
2004 and was not included in the Standstill Amount (the amounts described in
(i), (ii), (iii) and, if applicable, (iv), collectively, the "Trade Creditor
Debt").
b. The Trade Creditor Lien shall not cover any amounts with respect
to goods received from Vendor by Xxxxxxxx'x on or after the earlier of January
1, 2006 or the payment in full of the Standstill Amount (but the Trade
Creditor Lien shall continue to cover amounts owed for goods shipped prior to
such date). In addition, amounts owed for goods that are secured by letters of
credit, bankers' acceptances, or other security ("Excluded Goods") are
excluded from the Program and any amounts owed with respect thereto are not
covered by the Trade Creditor Lien. The rights of all Vendors providing
Excluded Goods to Xxxxxxxx'x are not in any way affected by the Program with
respect to such Excluded Goods.
2. Qualifications. To qualify as an Approved Trade Creditor:
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a. Forbearance. Vendor shall forbear from exercising any remedy with
respect to collection of the Standstill Amount and the interest thereon,
including without limitation making demands for payment or return of
merchandise or joining in a petition for an involuntary bankruptcy of
Xxxxxxxx'x or other proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, custodian or
other similar official (each, an "Insolvency Proceeding") and hereby waives
any such rights. Vendor hereby acknowledges that the violation of its
agreement to so forbear from exercising any remedy with respect to the
Standstill Amount and the interest thereon will cause irreparable harm to the
Company and agrees that any such violation shall give rise to the following
remedies (which constitute the only remedies available to Xxxxxxxx'x and as to
which Vendor hereby waives all defenses): (i) immediate injunctive relief as
may be necessary to restore the status quo; (ii) loss of Vendor's interest in
the Trade Creditor Lien (and such Vendor's claims shall no longer be secured
by the Trade Creditor Lien); and (iii) any applicable damages for commencing
any Insolvency Proceeding ((i), (ii), and (iii), collectively, the "Standstill
Violation Remedies"). Notwithstanding the foregoing, Vendor shall not be
prohibited from exercising its remedies with respect to any other goods
shipped to Xxxxxxxx'x (and not included in the Standstill Amount) for which
payment becomes past due; provided that such remedy does not include
foreclosing on collateral or joining in an Insolvency Proceeding (as to which
remedies Vendor has waived its rights to pursue, as well as any defenses
concerning the Standstill Violation Remedies). Vendor's forbearance as
described herein shall continue notwithstanding the existence of any Program
Default or Individual Default (as such terms are defined herein).
b. Continuation Of Terms And Trade Volume.
--------------------------------------
(i) With respect to the 2004 holiday selling season, Vendor
must continue to supply and ship goods to Xxxxxxxx'x based
upon orders heretofore and hereafter placed by Xxxxxxxx'x
(as may be supplemented or amended) on (A) normal and
customary trade terms and practices (including, but not
limited to, credit limits, cash discounts, timing of
payments, allowances, rebates, coupon reconciliation, normal
product mix and availability, volume discount, and other
applicable terms, but excluding therefrom any penalties for
late delivery of goods (and late delivery for goods
themselves as may be agreed to in advance by Xxxxxxxx'x and
Vendor) ordered and scheduled to be received prior to the
effective date of the Program) in effect between Vendor and
Xxxxxxxx'x on a historical basis for Xxxxxxxx'x 2002 and
2003 fiscal years, but not less than 60 day payment terms
with respect to asset goods, or (B) such other trade terms,
practices, and programs that have been or will be mutually
agreed to between Vendor and Xxxxxxxx'x ((A) and (B)
collectively, "Customary Terms").
(ii) With respect to orders placed or to be placed by
Xxxxxxxx'x for the 2005 Valentine's Day and 2005 Mother's
Day selling seasons, including all goods to be received
through April 30, 2005 (the "Initial 2005 Period"), Vendor
must (A) fulfill such orders on Customary Terms and Policies
(as hereinafter defined), or (B) inform Xxxxxxxx'x within 10
days after receipt of an order that it will be unable to
fulfill such order.
c. Vendor Performance. To receive and continue to receive the
benefits of the Program, Vendor must be in full compliance with the Letter
Agreement, and must also be in compliance with the current policies and
practices of Xxxxxxxx'x (collectively, the "Policies") as follows:
(i) Vendor must have executed and delivered to Xxxxxxxx'x
all documents required by Xxxxxxxx'x agreement on standard
purchase order terms and conditions currently in existence
for orders through December 31, 2004 or as may then be in
existence thereafter (collectively, the "Related
Documents"), and must currently be in full compliance with
the same. Vendor's execution of the Letter Agreement shall
constitute Vendor's acceptance of and agreement to the terms
and conditions contained in all of the Related Documents,
provided, however, that in the event of a conflict between
the Related Documents and the Letter Agreement, the terms of
the Letter Agreement shall control;
(ii) Vendor must be in full compliance with Xxxxxxxx'x code
of business conduct and all of Xxxxxxxx'x other applicable
business practice standards (including, without limitation,
the requirement that Vendor comply with all applicable
child, forced, and prison labor laws) currently in existence
for orders through December 31, 2004, or as may then be in
existence thereafter, and must not have violated such code
of business conduct or any other applicable business
practice standard(s) during the twelve calendar months
preceding the date of execution of the Letter Agreement;
(iii) Vendor must at a minimum meet normal industry
standards for performance regarding timing and completion
levels of fill rates without substitutions; and
(iv) Vendor must comply with Xxxxxxxx'x policy regarding
defective or non-conforming merchandise policy currently in
existence for orders through December 31, 2004, or as may
then be in existence thereafter.
3. Lien Limitations. If Vendor fails to fulfill any of the qualifications set
forth in Section 2 above, then Vendor shall continue to be bound by its
obligations set forth in Section 2.a above, including its agreement to forbear
from exercising any remedy with respect to collection of the Standstill Amount
and the interest thereon, and Xxxxxxxx'x shall continue to be bound to make
the requisite amortization and interest payments on the Standstill Amount, but
such Vendor may lose some or all of its interest in the Trade Creditor Lien as
set forth below.
a. Notice of Disqualification. At such time that Xxxxxxxx'x
determines that Vendor has become disqualified as an Approved Trade Creditor,
Xxxxxxxx'x shall notify Vendor in writing of its disqualification, and Vendor
shall have three business days following receipt of such notice to cure any
such disqualification; provided, however, that there shall be no cure period
for any disqualification resulting from Vendor's violation of its forbearance
obligations under the Program or Vendor's failure to ship merchandise to
Xxxxxxxx'x, subject to usual and customary reconciliations of over- and
under-shipments as determined by Xxxxxxxx'x consistent with prior practice.
b. Prior to December 31, 2004. If Vendor becomes disqualified as an
Approved Trade Creditor prior to December 31, 2004, then upon written notice
to Vendor from Xxxxxxxx'x, Vendor (i) shall lose its interest in the Trade
Creditor Lien with respect to the Standstill Amount and the interest thereon,
(ii) shall retain its interest in the Trade Creditor Lien for amounts
outstanding with respect to asset goods received from Vendor by Xxxxxxxx'x
and/or memo goods received from Vendor and sold by Xxxxxxxx'x, in each case
during the period while Vendor was an Approved Trade Creditor, and (iii) shall
not be entitled to a Trade Creditor Lien for amounts outstanding with respect
to asset goods received from Vendor by Xxxxxxxx'x and/or memo goods received
from Vendor and sold by Xxxxxxxx'x while Vendor is not an Approved Trade
Creditor.
c. January 1, 2005 through April 30, 2005.
(i) On, or to the extent reasonably practicable, before,
October 31, 2004, Xxxxxxxx'x shall provide the informal
committee of vendors ( the "Vendor Committee") with a
tentative schedule (the "Valentine's Day Schedule")
summarizing by category its aggregate merchandise
requirements for Valentine's Day, 2005. On, or to the extent
reasonably practicable, before, February 15, 2005,
Xxxxxxxx'x shall provide the Vendor Committee with a
tentative schedule (the "Mother's Day Schedule", and,
together with the Valentine's Day Schedule, the "Initial
2005 Schedules") summarizing by category its aggregate
merchandise requirements for Mother's Day, 2005. The Initial
2005 Schedules shall be good faith estimates of the
approximate amount of asset goods and memo goods that the
Company will require and shall be broken into categories of
goods.
(ii) Actual merchandise orders for the Initial 2005 Period
shall be placed by Xxxxxxxx'x in the ordinary course. To the
extent that Vendor determines that it will not be able to
fulfill an order for any reason other than the occurrence of
an Individual Default or Program Default, Vendor must inform
Xxxxxxxx'x in writing addressed to the chief executive
officer of Xxxxxxxx'x (the "Vendor Notice") within 10 days
after receipt of an order.
(iii) As to any Vendor Notices received, Xxxxxxxx'x may give
notice to the Vendor Committee of an anticipated shortfall
(the "Shortfall Notice") and the Vendor Committee shall have
the opportunity of making alternative arrangements for the
fulfillment of the underlying orders represented by the
Vendor Notices upon the same Customary Terms applicable to
the original order or the Customary Terms applicable to the
replacing vendor, at the option of the replacing vendor (the
"Alternative Arrangements"). In the event that (A) the
Vendor Committee does not commit, within 10 days receipt of
the Shortfall Notice, to provide Alternative Arrangements or
(B) the Alternative Arrangements are not fulfilled, for each
such instance, there will be a pro rata reduction in the
lien coverage for the Trade Creditor Debt, as of the earlier
of (1) the date the Vendor Committee does not commit to
provide alternative Arrangements or (2) the expiration of 10
days following receipt of the Shortfall Notice, in the same
percentage as the aggregate unfulfilled orders for the
Initial 2005 Period bear to the amount of the Trade Creditor
Debt (with such reduced amount remaining as an unsecured
obligation under the Program) and the assets in which the
Trade Creditor Lien is granted shall be unencumbered by the
Trade Creditor Lien in the amount of such shortfall
percentage (e.g., The Trade Creditor Debt is $100 million,
and the shortfall for the Initial 2005 Period is $5 million,
or 5%. If the value of the collateral is $50 million, the
collateral shall be unencumbered by the Trade Creditor Lien
by the amount of $2.5 million).
(iv) Notwithstanding the foregoing, Alternative Arrangements
need not be made with respect to a Vendor who does not
fulfill an order as a result of the failure of Xxxxxxxx'x to
pay an open invoice which is the subject of a good faith
dispute by Xxxxxxxx'x if the Vendor Committee believes in
good faith that Xxxxxxxx'x does not have a good faith basis
for disputing the invoice.
d. Subsequent to April 30, 2005. If, subsequent to April 30, 2005,
Vendor ceases to do business with Xxxxxxxx'x or no longer qualifies as an
Approved Trade Creditor, Vendor shall retain its interest in the Trade
Creditor Lien with respect to the Standstill Amount and the interest thereon
and any amounts outstanding with respect to asset goods received from Vendor
by Xxxxxxxx'x and/or memo goods received from Vendor and sold by Xxxxxxxx'x,
in each case while Vendor was an Approved Trade Creditor.
4. Waivers.
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x. Xxxxxxxx'x reserves the right to waive any one or more
qualification or performance requirements for any Vendor at any time in
Xxxxxxxx'x sole discretion (including written waivers simultaneous with the
execution by Vendor of the Letter Agreement); provided, however, that no term
or provision hereof shall be deemed waived and no breach consented to or
excused, unless such a waiver, consent, or excuse shall be in writing and
signed by the Chief Executive Officer or Chief Administrative Officer of
Xxxxxxxx'x.
b. To the extent that Xxxxxxxx'x finds it necessary to enter into a
separate arrangement with a vendor who has never participated in the Program
with respect to payment of amounts owed and past due as of July 31, 2004,
Xxxxxxxx'x shall consult with a subcommittee of the Vendor Committee on no
less than three days' notice prior to entering into such arrangement, provided
that Xxxxxxxx'x shall not be required to so consult with respect to any
individual transaction involving less than $100,000.
5. Events of Default.
-----------------
a. Program Defaults. The Collateral Trustee (as provided in the
Collateral Trust Agreement) may declare a "Program Default" upon the
occurrence and the continuance of:
(i) A payment default under the Senior Credit Facility;
(ii) The departure of Xxx Xxxxxx as Xxxxxxxx'x chief
executive officer;
(iii) A notice of an event of default under the Senior
Credit Facility is received by Xxxxxxxx'x (which notice
Xxxxxxxx'x hereby agrees to provide to the Vendor Committee
as soon as reasonably practicable following receipt by
Xxxxxxxx'x) which would allow the lenders under the Senior
Credit Facility to refuse to fund any further borrowing by
Xxxxxxxx'x and which is not waived or otherwise cured within
the time period provided by the Senior Credit Facility or
any extension of such time period;
(iv) a material adverse change in the borrowing base under
the Senior Credit Facility; and
(v) a default in the amortization or interest payments due
with respect to the Standstill Amount that is not cured by
the Company within 10 days after the due date.
b. Individual Default. Vendor may declare an "Individual Default"
upon the failure of the Company to make to Vendor a required payment under the
Letter Agreement or an open invoice payment (so long as such payments are not
the subject of a good faith dispute by the Company).
6. Remedies upon Company Default.
-----------------------------
a. Program Default Remedies. Upon the declaration by the Collateral
Trustee that a Program Default has occurred and the expiration of the
applicable cure period and for so long as such default is continuing:
(i) Vendor shall be entitled to discontinue shipments to
Xxxxxxxx'x and still retain its interest in the Trade
Creditor Lien; and
(ii) Solely with respect to a Program Default in the payment
of amortization or interest on the Standstill Amount when
due, a default rate of interest of 8% per annum shall apply
to the then Standstill Amount until such time as the default
is cured.
b. Individual Default Remedies. Upon the occurrence of an Individual
Default and for so long as such default is continuing, Vendor shall be
entitled to discontinue shipments to Xxxxxxxx'x and still retain its interest
in the Trade Creditor Lien.
7. Chargebacks. Xxxxxxxx'x will not apply any chargebacks prior to January 1,
2005, and, until such date, will use reasonable efforts to provide Vendor with
monthly reports summarizing accrued chargeback amounts. Thereafter,
chargebacks will be taken as credits on open and future invoices.
8. Financial Reporting Obligations. Xxxxxxxx'x shall provide Vendor, so long
as Vendor is an Approved Trade Creditor, with the same financial reporting
Xxxxxxxx'x is required to provide under the Senior Credit Facility,
contemporaneously with the delivery of such reports to the lenders under the
Senior Credit Facility.
9. Choice Of Law. The Letter Agreement shall be construed, interpreted, and
enforced under and in accordance with the internal laws of the State of New
York. Vendor agrees to exercise any right or remedy in connection with the
Letter Agreement exclusively in, and hereby submits to the jurisdiction of,
the State of Georgia Courts of Chatham County, Georgia, the United States
District Court at Savannah, Georgia, the State of New York Courts of New York
County, New York or the United States District Court for the Southern District
of New York, at New York, New York.
10. Vendor Representations. Vendor represents, covenants, and warrants that it
is duly organized, validly existing, operating in good standing in each
jurisdiction where necessary to perform the Letter Agreement, and has the full
power and authority to execute, deliver, and perform the Letter Agreement.
11. No Litigation. Vendor represents, covenants, and warrants that no
litigation, proceeding, or governmental, regulatory, or administrative agency
investigation or proceeding is pending or threatened against Vendor which
might adversely affect Vendor's ability to perform the Letter Agreement.
12. Limitation Of Damages. Xxxxxxxx'x shall not be liable to Vendor for
incidental, consequential, punitive, or exemplary damages arising in
connection with the Letter Agreement, the Program or the Trade Creditor Lien,
or the performance, omission of performance, or termination thereof, even if
Xxxxxxxx'x has been advised of the possibility of such damages and without
regard to the nature of the claim or the underlying theory or cause of action.
13. Assignment. Vendor may not assign its rights and/or duties under the
Letter Agreement without the prior written consent of Xxxxxxxx'x given at
Xxxxxxxx'x sole discretion, except with respect to credit insurance and
factoring arrangements for new shipments. Any such attempted assignment shall
be void and shall void Vendor's participation in the Trade Creditor Lien
without further action by Xxxxxxxx'x. Vendor acknowledges that the Letter
Agreement (a) is subject to the security interests granted by Xxxxxxxx'x to
the lenders under the Senior Credit Facility and (b) does not constitute a
portion of the collateral being granted to the Collateral Trustee.
14. General.
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a. Except with respect to any documentation issued by Xxxxxxxx'x to
Vendor detailing the operation of, and procedures under, the Program, or
modifying the Program or the Letter Agreement, the Letter Agreement (including
the Statement of Qualifications and the other Trade Creditor Lien Documents)
constitutes the final and entire understanding of Xxxxxxxx'x and Vendor with
respect to the Program. All prior communications, understandings, and
agreements, whether verbal or written, are merged herein; provided, however,
the Letter Agreement shall not amend or supersede any written agreement
between the Vendor and Xxxxxxxx'x on a Xxxxxxxx'x approved form of contract
including, specifically, the Related Documents.
b. Amendment.
---------
(i) The Letter Agreement may be amended or modified only by
Xxxxxxxx'x as provided herein in a writing signed by the
Chief Executive Officer or Chief Administrative Officer of
Xxxxxxxx'x.
(ii) Notwithstanding anything contained herein or in the
Letter Agreement to the contrary, (A) any amendment or
modification to the amortization schedule set forth in
paragraph (a)(ii) of the Letter Agreement shall only be
effective upon the third business day following receipt by
the collateral agent for the Lenders under the Senior Credit
Facility (the "Senior Agent") of written notice from
Xxxxxxxx'x regarding such amendment or modification; (B) any
amendment or modification of paragraphs (d)(ii) or (d)(iii)
of the Letter Agreement shall require the prior written
consent of the Senior Agent; and (C) no amendment,
modification or waiver of Section 2.a hereof or this
subsection 14.b(ii) shall be permitted without the Senior
Agent's prior written consent. The Senior Agent shall be a
third party beneficiary solely with respect to this
subsection 14.b(ii). All notices required hereby to be
provided to the Senior Agent shall be provided in accordance
with the terms and provisions of the Intercreditor Agreement
referred to in Section 15 below.
c. The paragraph titles used herein are provided solely for
convenience and shall not be considered relevant in any construction hereof
nor be interpreted to define, expand, or limit the provisions hereof.
15. Trade Creditor Lien Documents. The rights, benefits and obligations of
Vendor as an Approved Trade Creditor are subject to and qualified entirely by
the terms and conditions of (i) the Security Agreement, dated as of September
8, 2004, which establishes the Trade Creditor Lien, (ii) the Intercreditor
Agreement dated as of September 8, 2004 concerning the priority of the Trade
Creditor Lien and the ability of the Collateral Trustee and Vendor to exercise
rights and remedies and (iii) related documents, including a guaranty by
certain subsidiaries of Xxxxxxxx'x of the obligations secured by the Trade
Creditor Lien (collectively, the "Trade Creditor Lien Documents"). Copies of
the Trade Creditor Lien Documents are available upon written request to
Xxxxxxxx'x.
16. Notices. Notices required or permitted by this Letter Agreement shall be
given by certified mail, return receipt requested, overnight courier service
or facsimile to the following notice addresses:
a. To Xxxxxxxx'x:
-------------
Xxx Xxxxxx
Chief Executive Officer
Xxxxxxxx'x Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxx Xx. Xxxxxx, Jr.
Xxxxxx X. Xxxxxxxxx
Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
b. To Vendor:
---------
At the address specified in the Letter Agreement
c. To the Vendor Committee:
-----------------------
Xxxxxxx Xxxxxxx
X. Xxxxxxxxx & Sons
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-581-3061
with a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Otterbourg, Steindler, Houston & Xxxxx, P. C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-682-6104
