AMENDMENT NO. 3 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT, dated as of August 23, 1999 by and among First Union National
Bank, a national banking association, as successor by merger with CoreStates
Bank, N.A. ("First Union"), Congress Financial Corporation (Central), an
Illinois corporation ("Congress", and together with First Union, each
individually, a "Lender" and, collectively, "Lenders"), Congress as agent for
Lenders (in such capacity, "Agent") and Xxxxxx International, Inc., a Delaware
corporation ("Borrower").
WITNESSETH
WHEREAS, Borrower has entered into financing arrangements with Agent and
Lenders pursuant to which Lenders may make loans and provide other financial
accommodations to Borrower as set forth in the Amended and Restated Loan and
Security Agreement dated August 23, 1996 by and among First Union National Bank,
a national banking association, as successor by merger with CoreStates Bank,
N.A. ("First Union"), Congress Financial Corporation (Central), an Illinois
corporation ("Congress", and together with First Union, each individually, a
"Lender" and collectively, "Lenders"), Congress as agents for Lenders (in such
capacity, "Agent") and Xxxxxx International, Inc., a Delaware corporation
("Borrower") (as the same now exists and is amended hereby and may hereafter be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the other agreements, documents and
instruments referred to therein or at anytime executed and/or delivered in
connection therewith or related thereto, including this Amendment (all of the
foregoing, together with the Loan Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrower has requested that Lenders agree to extend the term of
the Financing Agreements and Lenders are willing to agree to such extension,
subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment, Borrower and Lender intend to evidence such
extension.
NOW, THEREFORE, in consideration of the foregoing, and the agreements and
covenants contained herein, the parties hereto agree as follows:
1. Definitions.
1.1 Interpretation. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
1.2 CoreStates. All references to CoreStates Bank, N.A. or "CoreStates" in
the Financing Agreements are hereby deemed references to First Union National
Bank (the successor by merger to CoreStates).
2. Renewal Date. The first two sentences of Section 14.1(a) of the Loan
Agreement are hereby deleted in their entirety and the following substituted
therefor:
"(a) This Agreement and the other Financing Agreements shall become
effective as of the date set forth on the first page hereof and shall
continue in full force and effect for a term ending on November 22, 1999
(the "Renewal Date") unless sooner terminated pursuant to the terms
hereof."
3. Early Termination Fee. Section 14.1(c)(iii) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefor:
"(iii) One-half of one (1/2%) percent From August 24, 1998 to
of the Maximum Credit and including November 21, 1999"
4. Extension Fee. Borrower hereby agrees to pay to Agent, for the benefit
of Lenders, as an extension fee equal to the amount of $25,000 (the "Extension
Fee"), which Extension Fee shall be fully earned as of and payable on the date
hereof.
5. Representations, Warranties and Covenants. Borrower represents, warrants
and covenants with and to Agent and Lenders as follows, which representations,
warranties and covenants are continuing and shall survive the execution and
delivery hereof, the truth and accuracy of, or compliance with each, together
with representations, warranties and covenants in the other Financing
Agreements, being a continuing condition of the making or providing of any Loans
or Letter of Credit Accommodations by Lenders to Borrower.
5.1 This Amendment has been duly authorized, executed and delivered by
Borrower, and the agreements and obligations of Borrower contained herein
constitute legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with its terms.
5.2 Neither the execution and delivery of this Amendment, or any other
agreements, documents or instruments in connection herewith, nor the
consummation of the transactions herein or therein contemplated, nor compliance
with the provisions hereof or thereof (a) are in contravention of any law or
regulation or any order or decree of any court or governmental instrumentality
applicable to Borrower in any respect, or (b) conflicts with or result in the
breach of, or constitutes a default in any respect under any mortgage, deed of
trust, security agreement, agreement or instrument to which Borrower is a party
or may be bound, or (c) violates any provision of the Certificate of
Incorporation or By-Laws of Borrower.
5.3 After giving effect to the provisions of this Amendment, no Event of
Default or act, condition or event which with notice or passage or time or both
would constitute an Event of Default, exists or has occurred and is continuing.
6. Conditions Precedent. The effectiveness of the terms and conditions of
this Amendment shall be subject to the receipt by Agent (on behalf of Lenders)
of the following, each in form and substance satisfactory to Lender:
(a) an original of this Amendment, duly authorized, executed and
delivered by Borrower; and
(b) the Extension Fee.
7. General.
7.1 Effect of this Amendment. Except as modified pursuant hereto, no other
changes or modifications to the Financing Agreements are intended or implied and
in all other respects the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the date hereof. To the
extent of conflict between the terms of this Agreement and the Financing
Agreements, the terms of this Amendment shall control.
7.2 Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary to
effectuate the provisions and purposes of this Amendment.
7.3 Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of Illinois (without giving effect to
principles of conflict of laws).
7.4 Binding Effect. This Amendment is binding upon and shall inure to the
benefit of Lender and Borrower and their respective successors and assigns.
7.5 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart thereof signed by each of the
parties hereto.
IN WITNESS WHEREOF, Agent, Lenders and Borrower have caused this Amendment
to be duly executed as of the day and year first above written.
XXXXXX INTERNATIONAL, INC.
By: /s/
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Title:
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CONGRESS FINANCIAL
CORPORATION (CENTRAL), in its individual
capacity and as Agent
By: /s/
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Title:
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FIRST UNION NATIONAL BANK, (as
successor by merger to CORESTATES
BANK, N.A.)
By: /s/
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Title:
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