AMENDMENT NO. 1 TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
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AMENDMENT ("Amendment"), dated as of September 23, 1996, by and among
CORESTATES BANK, N.A., a national banking association ("CoreStates"), CONGRESS
FINANCIAL CORPORATION (CENTRAL), an Illinois corporation ("Congress", and
together with CoreStates, each individually, a "Lender", and collectively,
"Lenders"), CONGRESS FINANCIAL CORPORATION (CENTRAL), an Illinois corporation,
in its capacity as agent for Lenders (in such capacity, "Agent") and XXXXXX
INTERNATIONAL, INC., a Delaware corporation ("Borrower").
W I T N E S S E T H :
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WHEREAS, Borrower has entered into financing arrangements with Agent and
Lenders pursuant to which Agent may make secured revolving loans and advances
and provide other financial accommodations to Borrower on behalf of Lenders as
set forth in the Amended and Restated Loan and Security Agreement, dated as of
August 23, 1996, by and among Agent, Lenders and Borrower (as amended and
supplemented hereby and as the same may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced, the "Loan
Agreement") and the other Financing Agreements (as defined therein); and
WHEREAS, in accordance with the terms of the Loan Agreement, upon the
redemption of certain notes issued by Borrower, Borrower is granting to Agent
for the benefit of Lenders a security interest in and mortgage and lien upon
the equipment and real property of Borrower; and
WHEREAS, in order to reflect the grant to Agent of such additional
collateral, certain amendments and supplements to the agreements of Borrower
with Agent and Lenders are necessary or desirable;
WHEREAS, by this Amendment, Agent, Lenders and Borrower desire and intend
to evidence such amendments and supplements; and
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants contained herein, and other good and valuable consideration,
Agent, Lenders and Borrower agree as follows:
1. Definitions.
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(a) Amendments to Definitions.
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(i) All references to the term "Collateral" in the Loan
Agreement shall be deemed and each such reference is hereby amended to
include, in addition and not in limitation, the following:
(A) the Equipment;
(B) the Real Property;
(C) to the extent constituting proceeds of, related to
or arising in connection with any Equipment or Real Property, all contract
rights, chattel paper, instruments, notes, general intangibles and all forms
of obligations owing to Borrower (and including obligations owing to Borrower
by its Subsidiaries and Affiliates);
(D) all of Borrower's present and future books, records,
ledger cards, data processing records, computer software and other property
and general intangibles at any time evidencing or relating to any of the
Equipment or Real Property and other property referred to in this Section
1(a); and
(E) all accessions to, substitutions for and
replacements, products and proceeds of any of the foregoing, and all proceeds
of such proceeds and products, including, without limitation, all cash and
credit balances, all payments under any indemnity, warranty, or guaranty
payable with respect to any of the foregoing, all proceeds of insurance, and
all money and other personal property obtained as a result of any claims
against third parties or any legal action or proceeding with respect to any of
the foregoing.
(ii) All references to the term "Records" in the Loan
Agreement shall be deemed and each such reference is hereby amended to
include, in addition and not in limitation, all of Borrower's present and
future books, records, ledger cards, data processing records, computer
software and other property and general intangibles at any time evidencing or
relating to the Equipment and Real Property and other property referred to in
this Section 1(a).
(b) Interpretation. For purposes of this Amendment, unless
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otherwise defined herein, all terms used herein, including, but not limited
to, those terms used and/or defined in the recitals hereto, shall have the
respective meanings assigned thereto in the Loan Agreement.
2. Grant of Security Interest. To secure payment and performance of
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all Obligations, in addition to and not in limitation of, any other Collateral
heretofore or hereafter granted by Borrower to Agent or Lenders, Borrower
hereby grants to Agent, for itself and the ratable benefit of Lenders, a
continuing security interest in, a lien upon, and a right of set off against,
and hereby assigns to Agent, for itself and the ratable benefit of Lenders, in
each case as security, the following property and interests in property of
Borrower, whether now owned or hereafter acquired or existing, and wherever
located:
(a) all Equipment;
(b) all Real Property;
(c) to the extent constituting proceeds of, related to or arising
in connection with any Equipment or Real Property, all contract rights,
chattel paper, instruments, notes, general intangibles and all forms of
obligations owing to Borrower (and including obligations owing to Borrower by
its Subsidiaries and Affiliates);
(d) all of Borrower's present and future books, records, ledger
cards, data processing records, computer software and other property and
general intangibles at any time evidencing or relating to any of the Equipment
or Real Property or other property referred to in this Section 2; and
(e) all accessions to, substitutions for and replacements, products
and proceeds of any of the foregoing, and all proceeds of such proceeds and
products, including, without limitation, all cash and credit balances, all
payments under any indemnity, warranty, or guaranty payable with respect to
any of the foregoing, all proceeds of insurance, and all money and other
personal property obtained as a result of any claims against third parties or
any legal action or proceeding with respect to any of the foregoing.
3. Governing Law. Section 12.1(a) of the Loan Agreement is hereby
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deleted in its entirety and the following substituted therefor:
"(a) The validity, interpretation and enforcement of this
Agreement and the other Financing Agreements and any dispute arising out of
the relationship between the parties hereto, whether in contract, tort, equity
or otherwise, shall be governed by the internal laws of the State of Illinois
(without giving effect to principles of conflicts of law), except, that, the
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validity, interpretation and enforcement of (i) the Mortgage Documents
relating to the Real Property located in Kokomo, Xxxxxx County, Indiana shall
be governed by the internal laws of the State of Indiana (without giving
effect to principles of conflicts of law) and (ii) the Mortgage Documents
relating to the Real Property located in Arcadia, Bienville Parish, Louisiana
shall be governed by the internal laws of the State of Louisiana (without
giving effect to principles of conflicts of law)."
4. Chief Executive Office. The address of the chief executive office
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of Borrower as set forth in the Loan Agreement and the other Financing
Agreements is hereby amended to be 0000 Xxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxx
00000.
5. Representations, Warranties. All representations and warranties
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in the Loan Agreement and the other Financing Agreements applicable to the
Collateral shall apply to the Collateral as such term is amended hereby.
6. Representations, Warranties and Covenants. In addition to the
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continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Agent and Lenders pursuant to the other Financing
Agreements, Borrower hereby 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 and shall
be incorporated into and made a part of the Financing Agreements):
(a) No Event of Default or act, condition or event which with
notice or passage of time or both would constitute an Event of Default exists
or has occurred as of the date of this Amendment.
(b) This Amendment has been duly executed and delivered by
Borrower and is in full force and effect as of the date hereof, and the
agreements and obligations of Borrower contained herein constitute legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
7. Effect of this Amendment. Except as modified pursuant hereto, no
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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
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment
shall control.
8. Further Assurances. Borrower shall execute and deliver, or shall
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cause the execution and delivery of, such additional documents and take such
additional actions as may be requested by Agent or Lenders to effectuate the
provisions and purposes of this Amendment.
S16\CONGRESS\XXXXXX\AMEND-4.DWM\el
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9. Governing Law. The validity, interpretation and enforcement of
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this Amendment and any dispute arising out of the relationship between the
parties hereto, whether in contract, tort, equity or otherwise shall be
governed by the internal laws of the State of Illinois (without giving effect
to principles of conflicts of laws).
10. Binding Effect. This Amendment shall be binding upon and inure
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to the benefit of each of the parties hereto and their respective successors
and assigns. The Loan Agreement and this Amendment shall be read and
construed as one agreement.
11. Counterparts. This Amendment may be executed in any number of
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counterparts, but all of such counterparts shall together constitute but one
and the same agreement. 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 thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the day and
year first above written.
XXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxx
Title: V.P. Finance
CONGRESS FINANCIAL CORPORATION
(CENTRAL), in its individual
capacity and as agent
By: /s/ Xxxxxx X. Xxxx
Title: SVP
CORESTATES BANK, N.A.
By: /s/ Xxxxx Xxxxxx
Title: V.P.
