FOURTH AMENDMENT AND AGREEMENT TO
LOAN AGREEMENT
This Fourth Amendment and Agreement to Loan Agreement is made as of the
______ day of ____________, 2000, by and between FLEET BANK, N. A., a national
banking association ("Fleet"); and BANK LEUMI USA, formerly known as Bank Leumi
Trust Company of New York, a New York banking corporation ("Bank Leumi"; Fleet
and Bank Leumi are hereinafter referred to together as the "Banks"); and XXXXXX
XXXXXX INTERNATIONAL INC., a Delaware corporation (the "Borrower").
WITNESSETH THAT:
WHEREAS, Fleet has extended a term loan to Xxxxxx Xxxxxx Japan, Inc., a
corporation ("Xxxxxx Xxxxxx Japan") organized under the laws of Delaware in the
sum of One Billion One Hundred Million Japanese Yen ('Y'1,100,000,000) (the
"Xxxxxx Xxxxxx Japan Loan"); and
WHEREAS, the Borrower has guaranteed the payment and performance of the
Xxxxxx Xxxxxx Japan Loan and has secured its guaranty by pledging the sum of Ten
Million Ten Thousand Ten and 01/100 Dollars ($10,010,010.01) to Fleet (the
"Pledged Collateral"); and
WHEREAS, in order to account for the foreign currency risk of the
Xxxxxx Xxxxxx Japan Loan which was made in Japanese Yen but secured by U.S.
Dollars, the Banks and the Borrower amended the Loan Agreement dated as of May
14, 1996, as previously amended (as amended, the "Loan Agreement") between the
Banks and the Borrower, in order to reduce the availability of the revolving
loan extended thereunder by the amount that Fleet determined was the foreign
currency risk related to the Xxxxxx Xxxxxx Japan Loan; and
WHEREAS, the Borrower and the Banks desire to amend the loan Agreement
as a result of a recalculation of the foreign currency risk related to the
Xxxxxx Xxxxxx Japan Loan; and
WHEREAS, Xxxxxx Xxxxxx Japan and Fleet National Bank have entered into
ISDA Master Agreement (the "Master Agreement"); and
WHEREAS, in order to account for the interest rate risk of the Xxxxxx
Xxxxxx Japan Loan as a result of Xxxxxx Xxxxxx Japan entering into the Master
Agreement, the Banks and the Borrower desire to further amend the Loan Agreement
in order to reduce the availability of the revolving loan extended thereunder by
the amount that Fleet has determined is the interest rate risk related to the
Xxxxxx Xxxxxx Japan Loan.
NOW, THEREFORE, for value received, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have the
definitions assigned by the Loan Agreement.
2. Effective the date hereof, Article One of the Loan Agreement is
amended by adding new definitions for "Xxxxxx Xxxxxx Japan Loan Foreign
Currency/Interest Rate Risk" to read in its entirety as follows:
Xxxxxx Xxxxxx Japan Loan Foreign Currency/Interest Rate Risk
means the sum of (a) fifteen percent (15%) (or such other percentage as
Fleet shall notify Bank Leumi and the Borrower
in writing as being the foreign currency risk related to the Xxxxxx
Xxxxxx Japan Loan upon each quarterly principal repayment of the Xxxxxx
Xxxxxx Japan Loan) of the U.S. Dollar equivalent of the outstanding
principal balance of the Xxxxxx Xxxxxx Japan Loan; plus (b) Two Hundred
Ninety Thousand Dollars ($290,000) (which is the interest rate risk
relating to the Xxxxxx Xxxxxx Japan Loan as a result of Xxxxxx Xxxxxx
Japan entering into the Master Agreement).
3. Effective the date hereof, the definition of "Commitment" set forth
in Article 1 of the Loan Agreement is amended in its entirety as follows:
Commitment: as to each Bank, the amount set forth opposite
such Bank's name on the signature page hereof under the caption
"Commitment", as such amount is subject to reduction in accordance with
the terms hereof, provided, however, in the case of Fleet, the Xxxxxx
Xxxxxx Japan Foreign Currency/Interest Rate Risk shall be deemed to be
included as indebtedness incurred pursuant to Fleet's Commitment.
4. The Banks and the Borrower hereby acknowledge and agree that the
Xxxxxx Xxxxxx Japan Loan Foreign Currency/Interest Rate Risk shall be deemed to
be indebtedness of the Borrower to the Banks under the Loan Agreement for all
purposes of determining the amount of the Loans outstanding under the Loan
Agreement and for determining the utilization of the Total Commitment and each
Bank's respective Commitment. The Xxxxxx Xxxxxx Japan Loan Foreign
Currency/Interest Rate Risk shall not be deemed to be indebtedness under the
Loan Agreement for purposes of imposing an interest charge thereon.
5. All references to the "Loan Agreement" in the Loan Agreement, the
Notes and in all documents executed or delivered in connection with the Loan
Agreement shall from and after the effective date hereof refer to the Loan
Agreement, as amended hereby.
6. Except as amended hereby, the Loan Agreement shall remain in full
force and effect and is in all respects hereby ratified and affirmed.
7. The Borrower jointly and severally covenant and agree to pay all
out-of-pocket expenses, costs and charges incurred by the Banks (including
reasonable fees and disbursements of counsel) in connection with the preparation
and execution of this Fourth Amendment and Agreement to Loan Agreement.
IN WITNESS WHEREOF, the undersigned parties have caused this Fourth
Amendment and Agreement to Loan Agreement to be executed by their duly
authorized officers as of the date first above written.
WITNESS: XXXXXX XXXXXX INTERNATIONAL
INC.
_____________________________________ By:________________________________
Title:
-2-
Commitment (including the indebtedness FLEET BANK, N.A.
under the Xxxxxx Xxxxxx Japan
Foreign Currency/Interest Rate Risk)
$24,000,000 By:_____________________________
Title:
By:____________________________
Title:
Commitment: BANK LEUMI USA
$16,000,000
By:____________________________
Title:
By:____________________________
Title:
Acknowledged and Agreed to:
XXXXXX XXXXXX EUROPE INC.
By:_________________________________________
Title:
XXXXXX XXXXXX BELGIUM, N.V.
By:_________________________________________
Title:
XXXXXX XXXXXX GHANA LTD.
By:_________________________________________
Title:
SUPREME GEMS N.V.
-3-
By:_________________________________________
Title:
XXXXXX XXXXXX AFRICA, INC.
By:_________________________________________
Title:
XXXXXX XXXXXX JAPAN, INC.
By:_________________________________________
Title:
-4-
