SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT ("Amendment") made as of this 9th
day of February, 1999 among XXXXXX INTERNATIONAL CORP., a Delaware corporation
having its principal place of business at 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000 ("Xxxxxx" or a "Borrower"), HAPL LEASING CO., INC., a New York
corporation having its principal place of business at 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("HAPL" or a "Borrower") (Xxxxxx and HAPL sometimes
referred to herein as a "Borrower" or collectively, as the "Borrowers"), SEWING
MACHINE EXCHANGE, INC., an Illinois corporation having an office at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("SMX"), PULSE MICROSYSTEMS LTD., an
Ontario, Canada corporation having its principal place of business at 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxx 00, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X0X0 ("Pulse"),
SEDECO, INC., a Texas corporation having its principal place of business at 0000
X. Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxx 00000 ("Sedeco") and XXXXXX EQUIPMENT
CONNECTION, INC., a Delaware corporation having an office at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Equipment") (Xxxxxx,( with respect to
Loans made to HAPL), HAPL, (with respect to Loans made to and Letters of Credit
issued for, Xxxxxx), SMX, Pulse, Sedeco and Equipment being individually, a
"Guarantor" and collectively, the "Guarantors"), THE BANK OF NEW YORK, a New
York banking organization, having an office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx
Xxx Xxxx 00000 ("BNY" or a "Bank") FLEET BANK, N.A., a national banking
association, having an office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
("Fleet" or a "Bank"), MELLON BANK, N.A., a national banking association, having
an office at 000 XXX Xxxxx, Xxxx Xxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxx Xxxx
00000-0000 ("Mellon" or a "Bank") and THE BANK OF NEW YORK, as agent for the
Banks (the "Agent").
W I T N E S S E T H :
WHEREAS, Xxxxxx, HAPL and the other Guarantors, and BNY and Fleet, as
lending Banks, and BNY, as Agent, entered into a Loan Agreement dated as of the
7th day of January, 1997, which Loan Agreement has heretofore been amended
pursuant to that certain First Amendment dated September 26, 1997 (hereinafter
the "Agreement"); and
WHEREAS, the Banks have made certain commitments to Xxxxxx and HAPL
pursuant to the Agreement; and
WHEREAS, Xxxxxx and HAPL have requested that the Agent and the Banks agree
to amend the Agreement to permit HAPL to sell leases on a recourse basis with a
total recourse exposure not to exceed $6,500,000.00; and
WHEREAS, Xxxxxx wishes to temporarily reduce the Working Capital Sublimit
to $20,000,000.00 and to reduce the Total Commitment (Xxxxxx) to Forty Million
($40,000,000.00) Dollars; and
WHEREAS, Xxxxxx wishes to reduce the Permitted Acquisition Sublimit to Zero
($0) Dollars; and
WHEREAS, HAPL wishes to reduce the Total Commitment (HAPL) to Six Million
Five Hundred Thousand ($6,500,000.00) Dollars; and
WHEREAS, the parties hereto wish to reflect that certain additional
collateral has been provided to the Agent and the Banks by Xxxxxx, SMX, Pulse,
Sedeco and Equipment.
NOW, THEREFORE, in consideration of Ten ($10.00) Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers, the other Guarantors and the Agent and the Banks do
hereby agree as follows:
1. Defined Terms. As used in this Amendment, capitalized terms, unless
otherwise defined, shall have the meanings set forth in the Agreement.
2. Representations and Warranties. As an inducement for the Agent and the
Banks to enter into this Amendment, Xxxxxx, HAPL and each other Guarantor
represent and warrant as follows:
A. That with respect to the Agreement and the Loan Documents executed in
connection therewith and herewith:
(i) There are no defenses or offsets to Xxxxxx'x, HAPL's or any other
Guarantor's obligations under the Agreement, as in effect prior to or subsequent
to this Amendment, the Notes or any of the other Loan Documents or any other
agreements in favor of the Agent or the Banks referred to in the Agreement, and
if any such defenses or offsets exist without the knowledge of Xxxxxx, HAPL or
any other Guarantor, the same are hereby waived.
(ii) All of the representations and warranties made by Xxxxxx, HAPL or any
other Guarantor in the Agreement, as amended hereby, are true and correct in all
material respects as if made on the date hereof, except for those made with
respect to a particular date, which such representations and warranties are
restated as of such date; and provided further that the representations and
warranties set forth in Section 4.01(f) of the Agreement shall relate to the
consolidated financial statements of Xxxxxx, HAPL and the other Guarantors for
the fiscal quarter ended October 31, 1998.
(iii) The outstanding aggregate principal balance of the Revolving Credit
Loans (Xxxxxx) is $14,500,000.00 and interest has been paid through January 31,
1999.
(iv) The outstanding aggregate L/C Exposure is $1,776,940.11.
(v) The outstanding aggregate principal balance of the Revolving Credit
Loans (HAPL) is $-0-.
3. Amendment.
(a) The definitions in Article I of the Agreement of "Other Acquisition",
"Other Acquisition Maximum Consideration", "Permitted Acquisition", "Permitted
Acquisition Loans" and "Permitted Acquisition Sublimit" are each hereby deleted.
(b) The following definitions in Article I of the Agreement are hereby
amended to read in their entirety as follows:
"Collateral" shall have the meaning set forth in Section 3.05(i) hereof and
shall also mean all property of the Borrowers and the other Guarantors on which
Liens have been granted to the Agent, for the benefit of the Banks, pursuant to
the Security Agreements.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Security Agreements, the L/C Documents, the Commitment Letter and any other
document executed or delivered pursuant to this Agreement.
"Total Commitment" means the aggregate of the Commitments of each of the
Banks, which, on the date of this Agreement, is Forty Six Million Five Hundred
Thousand ($46,500,000.00) Dollars.
"Total Commitment (HAPL)" means the aggregate of the Commitments of the
Banks to make Revolving Credit Loans (HAPL), which, on the date of this
Agreement, is Six Million Five Hundred Thousand ($6,500,000.00) Dollars.
"Total Commitment (Xxxxxx)" means the aggregate of the Commitments of the
Banks to make Revolving Credit Loans (Xxxxxx) and to make the Term Loans to
Xxxxxx and to participate in Letters of Credit issued on behalf of Xxxxxx,
which, on the date of this Agreement, is Forty Million ($40,000,000.00) Dollars.
"Working Capital Sublimit" means $30,000,000.00, provided, however, that
for the period beginning on January 29, 1999 through the later of (x) February
28, 1999 or (y) the date on which Xxxxxx, the Agent and the Banks amend this
Agreement to provide for a borrowing base formula for Revolving Credit Loans
(Xxxxxx), the Working Capital Sublimit shall mean $20,000,000.00.
(c) The following definitions are hereby added to Article I of the
Agreement:
"Permitted Recourse" means, with respect to leases sold by HAPL, sales of
leases to Funding Sources pursuant to which any such Funding Source has limited
recourse to HAPL in the event of non-performance by the lessee, which recourse
is not greater than ten (10%) percent of the aggregate liability of the lessee
on such lease, provided, however, that such recourse may be one hundred (100%)
percent of the lessee's liability on the lease for a period not to exceed (i) in
the case of leases sold on or prior to February 9, 1999, that period during
which such lessee makes up to eight (8) monthly payments under the lease, and
(ii) in the case of leases sold after February 9, 1999, that period during which
such lessee makes three (3) monthly payments under the lease, in each case
provided further, that in no event shall HAPL's recourse liability under any
lease be in excess of $120,000.00.
"Security Agreement" or "Security Agreements" means the security agreement
executed and delivered by HAPL pursuant to Section 3.05(i) of the Agreement and
any other security agreement executed and delivered by Xxxxxx or any of the
other Guarantors to the Agent.
(d) Section 2.04 of the Agreement is hereby amended to read in its entirety
as follows:
"SECTION 2.04. Payment of Interest on the Revolving Credit Notes (Xxxxxx).
(a) In the case of an Alternate Base Rate Loan, interest shall be payable
at a rate per annum equal to the Alternate Base Rate plus the ABR Applicable
Margin. Such interest shall be payable on each Interest Payment Date, commencing
with the first Interest Payment Date after the date of such Alternate Base Rate
Loan and on the Maturity Date. Any change in the rate of interest on the
Revolving Credit Notes (Xxxxxx) due to a change in the Alternate Base Rate or a
change in the ABR Applicable Margin shall take effect as of the date of such
change in the Alternate Base Rate or ABR Applicable Margin, as applicable.
(b) In the case of a Eurodollar Loan, interest shall be payable at a rate
per annum equal to the Adjusted LIBOR Rate plus the LIBOR Applicable Margin.
Such interest shall be payable on each Interest Payment Date, commencing with
the first Interest Payment Date after the date of such Eurodollar Loan and on
the Maturity Date. In the event Eurodollar Loans are available, the Agent shall
determine the rate of interest applicable to each requested Eurodollar Loan for
each Interest Period at 11:00 a.m., New York City time, or as soon as
practicable thereafter, two (2) Business Days prior to the commencement of such
Interest Period and shall use its best efforts to notify Xxxxxx and the Banks of
the rate of interest so determined. Such determination shall be conclusive
absent manifest error.
(c) The ABR Applicable Margin and the LIBOR Applicable Margin shall each be
determined on the basis of Xxxxxx'x Funded Debt to EBITDA Ratio, as calculated
based on the Xxxxxx'x consolidated financial statements for its most recent
fiscal quarter. The ABR Applicable Margin and the LIBOR Applicable Margin shall
be determined as follows:
(i) The initial ABR Applicable Margin shall be -0- basis points and the
initial LIBOR Applicable Margin shall be 100 basis points, and shall be
applicable until delivery of Xxxxxx'x financial statements for its fiscal year
ending January 31, 1997 pursuant to Section 5.01(b) hereof (subject to increase
in the event that Xxxxxx fails to deliver such statements as required below).
Beginning with delivery of Xxxxxx'x financial statements for the fiscal
year ending January 31, 1997, and for each fiscal quarter thereafter:
(ii) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is less than 1.25 to 1.00, the ABR Applicable Margin shall be -0- basis
points and the LIBOR Applicable Margin shall be 87.5 basis points.
(iii) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 1.25 to 1.00 but less than 1.85 to 1.00, the
ABR Applicable Margin shall be -0- basis points and the LIBOR Applicable Margin
shall be 112.5 basis points.
(iv) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 1.85 to 1.00 but less than 2.00 to 1.00, the
ABR Applicable Margin shall be -0- basis points and the LIBOR Applicable Margin
shall be 137.5 basis points.
(v) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 2.00 to 1.00, the ABR Applicable Margin
shall be -0- basis points and the LIBOR Applicable Margin shall be 175 basis
points.
In the event that Xxxxxx fails to deliver any financial statements or the
related certificate within five (5) days of the due date therefor set forth in
Section 5.01(b)(i), (ii) or (iv) hereof, unless an Event of Default is declared
as a result of such failure, the ABR Applicable Margin shall be -0- basis points
and the LIBOR Applicable Margin shall be 175 basis points until Xxxxxx delivers
all required financial statements and certificates at which time the ABR
Applicable Margin and the LIBOR Applicable Margin shall be redetermined as
provided for in this Section 2.04.
Upon the occurrence and during the continuance of a Default or an Event of
Default the ABR Applicable Margin and the LIBOR Applicable Margin may, as a
result of changes in the Xxxxxx'x Funded Debt to EBITDA Ratio, increase but will
not decrease.
(e) All interest shall be paid to the Agent for the pro rata distribution
to the Banks."
(e) Section 2.06 of the Agreement is hereby amended to read in its entirety
as follows:
"SECTION 2.06. Fees. (a) Xxxxxx agrees to pay to the Agent, for the pro
rata distribution to the Banks, from the date of this Agreement and for so long
as the Total Commitment (Xxxxxx) remains in effect, on the first Business Day of
each calendar quarter, and on any day that the Total Commitment (Xxxxxx) is
reduced or terminated, an Unused Facility Fee computed at a rate per annum as
determined below (computed on the basis of the actual number of days elapsed
over 360 days) on the average daily unused amount of the Total Commitment
(Xxxxxx), such Unused Facility Fee being payable for the calendar quarter, or
part thereof, preceding the payment date. The Unused Facility Fee shall be
determined as follows, on the basis of Xxxxxx'x Funded Debt to EBITDA Ratio, as
calculated based on Xxxxxx'x financial statements for its most recent fiscal
quarter.
(i) The initial Unused Facility Fee shall be 0.15% per annum and shall be
applicable until delivery of Xxxxxx'x financial statements for its fiscal year
ending January 31, 1997 pursuant to Section 5.01(b) hereof (subject to increase
in the event that Xxxxxx fails to deliver such statements as required below).
Beginning with delivery of Xxxxxx'x financial statements for the fiscal
year ending January 31, 1997, and for each fiscal quarter thereafter:
(ii) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is less than 1.25 to 1.00, the Unused Facility Fee shall be 0.10% per
annum.
(iii) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 1.25 to 1.00 but less than 1.85 to 1.00, the
Unused Facility Fee shall be 0.15% per annum.
(iv) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 1.85 to 1.00 but less than 2.00 to 1.00, the
Unused Facility Fee shall be 0.1875% per annum.
(v) If Xxxxxx'x Funded Debt to EBITDA Ratio as of the end of such fiscal
quarter is equal to or greater than 2.00 to 1.00, the Unused Facility Fee shall
be 0.25% per annum.
In the event that Xxxxxx fails to deliver any financial statements or the
related certificate within five (5) days of the due date therefor set forth in
Section 5.01(b)(i), (ii) or (iv) hereof, unless an Event of Default is declared
as a result of such failure, the Unused Facility Fee shall be 0.25% per annum
until Xxxxxx delivers all required financial statements and certificates.
Upon the occurrence and during the continuance of a Default or an Event of
Default the Unused Facility Fee may, as a result of changes in Xxxxxx'x Funded
Debt to EBITDA Ratio, increase but will not decrease.
(b) Xxxxxx agrees to pay to the Agent, for its services as Agent hereunder,
those fees, charges and expenses as Xxxxxx and the Agent may mutually agree."
(f) Section 2.20(c) of the Agreement is hereby amended to read in its
entirety as follows:
"(c) The ABR Applicable Margin and the LIBOR Applicable Margin shall be
determined on the basis of Xxxxxx'x Funded Debt to EBITDA Ratio, as calculated
based on Xxxxxx'x consolidated financial statements for its most recent fiscal
quarter. ABR Applicable Margin and the LIBOR Applicable Margin shall be
determined in accordance with the provisions of Section 2.04(c) of this
Agreement.
In the event that Xxxxxx fails to deliver any financial statements or the
related certificate within five (5) days of the due date therefor set forth in
Section 5.01(b)(i), (ii) or (iv) hereof, unless an Event of Default is declared
as a result of such failure, the ABR Applicable Margin shall be -0- basis points
and the LIBOR Applicable Margin shall be 175 basis points until Xxxxxx delivers
all required financial statements and certificates.
Upon the occurrence and during the continuance of a Default or an Event of
Default, the ABR Applicable Margin and the LIBOR Applicable Margin may, as a
result of changes in Xxxxxx'x Funded Debt to EBITDA Ratio, increase but will not
decrease."
(g) Section 2A.01 (b)(iv) of the Agreement is hereby amended to read in its
entirety as follows:
"(iv) the Aggregate Xxxxxx Outstandings, after giving effect to the
requested Letter of Credit shall exceed $40,000,000.00";
(h) Section 2A.08 of the Agreement is hereby amended to read in its
entirety as follows:
"SECTION 2A.08. Fees and Commissions. (a) In the case of trade Letters of
Credit payable on sight, Xxxxxx shall pay to the Agent a payment commission
equal to 0.25% of the amount drawn, payable on the date of presentment of the
required documents under the Letter of Credit.
(b) In the case of trade Letters of Credit payable at a stated time, Xxxxxx
shall pay to the Agent a per annum commission on the average amount of drafts
accepted and deferred payment obligations as outstanding from the date of
presentment of required documents under the Letter of Credit to the date of
payment, equal to (i) 0.75% during such periods when the Xxxxxx'x Funded Debt to
EBITDA Ratio (as determined from Xxxxxx'x most recent financial statements) is
less than 1.85 to 1.00, (ii) 1.00% during such periods when Xxxxxx'x Funded Debt
to EBITDA Ratio is equal to or greater than 1.85 to 1.00 but less than 2.00 to
1.00 and (iii) 1.50% when Xxxxxx'x Funded Debt to EBITDA Ratio is equal to or
greater than 2.00 to 1.00. Such commission shall be payable on the Honor Date.
(c) In the case of standby Letters of Credit, Xxxxxx shall pay to the Agent
a per annum fee equal to the LIBOR Applicable Margin, as in effect from time to
time, on the average amount issued and available to be drawn on standby Letters
of Credit (computed on the basis of a year of 360 days for actual days elapsed),
payable quarterly in arrears.
(d) In the case of all Letters of Credit, Xxxxxx shall pay to the Issuing
Bank its usual and customary letter of credit fees as established from time to
time, including without limitation, fees, commissions and charges for issuance,
payment, processing amendment and expiration.
(e) In the case of the fees and commissions set forth in (a), (b) and (c)
above, same shall be paid to the Agent for the pro rata distribution to the
Banks."
(i) Section 3.05(q) of the Agreement is hereby amended to read in its
entirety as follows:
"(q) The Agent shall have conducted a Collateral Audit of the (i) the
Eligible Lease Assets and (ii) the books and records of the Borrower, and the
Agent shall have conducted such other due diligence as the Agent, in its
reasonable discretion, considers necessary. The results of such Collateral Audit
shall be satisfactory to the Agent and the Banks in their reasonable discretion.
Such Collateral Audit may be performed by the Agent's internal staff or by the
Agent's designated representatives. The Collateral Audit shall be at the expense
of HAPL."
(j) Section 5.02(d) of the Agreement is hereby amended to read in its
entirety as follows:
"(d) Merger. Merge into, or consolidate with or into, or have merged into
it, any Person (for the purpose of this subsection (d), the acquisition or sale
by a Borrower or any Guarantor by lease, purchase or otherwise, of all, or
substantially all, of the common stock or the assets of any Person or of it
shall be deemed a merger of such Person with the Borrower or any Guarantor)
other than a merger of a Subsidiary into its parent corporation."
(k) Section 5.02(e) of the Agreement is hereby deleted in its entirety and
replaced as follows:
"(e) Sale of Assets, Etc. Sell, assign, transfer, lease or otherwise
dispose of any of its assets, (including a saleleaseback transaction) with or
without recourse, except for (i) inventory disposed of in the ordinary course of
business; and (ii) the sale or other disposition of assets no longer used or
useful in the conduct of its business, (iii) saleleaseback transactions which in
the aggregate involve the sale of assets for total consideration of not greater
than $2,000,000.00 Dollars, (iv) leases sold by HAPL on a Non-Recourse basis and
(v) leases sold by HAPL on a Permitted Recourse basis, provided that the
aggregate Permitted Recourse of HAPL for such leases does not exceed
$6,500,000.00 at any time."
4. Reduction of Commitment.
(a) By the execution and delivery of this Second Amendment, the parties
hereto agree that: (i) the Total Commitment is reduced to Forty Six Million Five
Hundred Thousand ($46,500,000.00) Dollars; (ii) the Total Commitment (Xxxxxx) is
reduced to Forty Million ($40,000,000.00) Dollars; (iii) the Permitted
Acquisition Sublimit is reduced to Zero ($0) Dollars; (iv) the Total Commitment
(HAPL) is reduced to Six Million Five Hundred Thousand ($6,500,000.00) Dollars;
and (v) the Working Capital Sublimit is reduced as provided for in the amendment
to the definition of "Working Capital Sublimit" as set forth in this Amendment,
each effective as of the date hereof.
(b) All parties hereto waive any notice requirement in the Agreement for
the effectiveness of the above reductions in commitments.
(c) Schedule 1.01 of the Agreement is hereby revised as set forth in the
Schedule 1.01 annexed hereto.
5. Certificates. All parties hereto agree that all certificates to be
executed and delivered by Xxxxxx, HAPL or any of the other Guarantors,
including, without limitation, Borrowing Base Certificates and the certificates
to be delivered pursuant to Sections 3.02(a), 3.04(b), 3.05(k), 3.06(a) and
5.01(b), may be delivered by any of, and shall be delivered by one of, the
following officers of Xxxxxx, HAPL or the other Guarantors: the Chairman of the
Board, the Chief Executive Officer, the President or the Chief Financial
Officer. All parties hereto agree that the certificates to be delivered pursuant
to Sections 3.02(a), 3.04(b), 3.05(k) and 3.06(a) of the Agreement shall be
substantially in the form annexed hereto as Exhibit A.
6. Effectiveness. This Amendment shall become effective upon the occurrence
of the following events and the receipt and satisfactory review by the Agent and
its counsel of the following documents, provided that the addition of the
definition of "Permitted Recourse" and the amendment to Section 5.02(e) of the
Agreement, upon satisfaction of the following conditions, shall each be deemed
to have been effective on July 31, 1998:
(a) The Agent shall have received this Amendment, duly executed by Hirsch,
HAPL, each other Guarantor and each of the Banks.
(b) The Agent shall have received copies of any and all modifications of
the documentation referred to in Section 3.01 of the Agreement which
modifications could result in a Material Adverse Change in Xxxxxx, HAPL or any
other Guarantor.
(c) The Agent and the Banks shall have received a satisfactory explanation
of the "Ultimate Net Loss" provision with regard to HAPL and a detailed balance
sheet projection, on a quarterly basis, for Xxxxxx'x fiscal year ending January
31, 2000.
(d) The Agent shall have received certified (as of the date of this
Amendment) copies of the resolutions of the Boards of Directors of Xxxxxx, HAPL
and the other Guarantors authorizing this Amendment, the Security Agreements of
Xxxxxx and the other Guarantors (other than HAPL) and all other transactions
relating hereto and thereto and the execution, delivery and performance hereof
and thereof and certified copies of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Amendment and the Security Agreements.
(e) The Agent shall have received an opinion of Ruskin, Moscou, Xxxxx &
Faltischek, P.C., counsel for the Borrower and the Guarantors as to certain
matters regarding this Amendment, the Security Agreements and as to such other
matters as the Agent or its counsel may reasonably request.
(f) The Agent shall have received a consolidated (excluding HAPL and
excluding inter-company receivables) summary accounts receivable aging schedule,
the review of which shall be satisfactory to the Agent and the Banks.
(g) The Agent shall have been paid, for the pro rata benefit of the Banks,
an amendment fee in the amount of $30,000.00.
(h) The Agent's counsel shall have been paid their fees and disbursements
in connection with this Amendment.
7. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9. Ratification. Except as hereby amended, the Agreement and all other Loan
Documents executed in connection therewith shall remain in full force and effect
in accordance with their originally stated terms and conditions. The Agreement
and all other Loan Documents executed in connection therewith, as amended
hereby, are in all respects ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the year and date first above written.
THE BANK OF NEW YORK, as Agent HAPL LEASING CO., INC.
By:____________________________ By:________________________
Xxxxxx X. Xxxxxx Name:
Vice President Title:
THE BANK OF NEW YORK PULSE MICROSYSTEMS, LTD.
By:____________________________ By:________________________
Xxxxxx X. Xxxxxx Name:
Vice President Title:
FLEET BANK, N.A. SEWING MACHINE EXCHANGE, INC.
By:____________________________ By:________________________
Name: Name:
Title: Title:
MELLON BANK, N.A. SEDECO, INC.
By:____________________________ By:________________________
Name: Name:
Title: Title:
XXXXXX INTERNATIONAL CORP. XXXXXX EQUIPMENT CONNECTION, INC.
By:____________________________ By:_________________________
Name: Name:
Title: Title:
SCHEDULE 1.01
Total Commitments (Xxxxxx) of Each Bank
The Bank of New York - $18,000,000.00
Fleet Bank, N.A. - $14,000,000.00
Mellon Bank, N.A. - $8,000,000.00
Total Commitments (HAPL) of Each Bank
The Bank of New York - $ 2,925,000.00
Fleet Bank, N.A. - $ 2,275,000.00
Mellon Bank, N.A. - $ 1,300,000.00
EXHIBIT A
FORM OF BORROWING CERTIFICATE
XXXXXX INTERNATIONAL CORP.
OFFICER'S CERTIFICATE
I, , [TITLE] of Xxxxxx International Corp. a Delaware corporation (herein
the "Borrower"), DO HEREBY CERTIFY to The Bank of New York, as Agent for each of
the banks which are lenders under the Agreement described below, in connection
with a request for a Revolving Credit Loan and/or a Letter of Credit under that
certain Loan Agreement among the Borrower, certain Guarantors, the Agent and The
Bank of New York, Fleet Bank, N.A, and Mellon Bank, N.A. (the "Banks") (the
"Agreement"), that:
1. The representations and warranties of the Borrower contained in Article
IV of the Agreement and in the other Loan Documents are true and correct in all
material respects on and as of this date as though made on and as this date
(provided that the representation made in Section 4.01(f) shall be deemed made
as to the then most recent fiscal year and interim period financial statements
delivered to the Agent and the Banks).
2. (a) No Default or Event of Default has occurred and is continuing, or
would result from a Revolving Credit Loan (Xxxxxx) or Letter of Credit.
3. Capitalized terms not defined herein shall have the meanings given them
in the Agreement.
IN WITNESS WHEREOF, I have signed this certificate this th day of 1999.
-------------------------------
Name:
Title:
