TENTH AMENDMENT
TENTH
AMENDMENT dated as of September 24, 2008 (this “Amendment”)
with
respect to the Revolving Credit Agreement, dated as of August 14, 2002 (as
amended, the “Credit
Agreement”)
by and
between Xxxxxx Xxxxxx International Inc., as borrower (“Borrower”)
and
ABN AMRO Bank N.V., as Administrative Agent (the “Administrative
Agent”)
and as
a Bank (the “Bank”).
Unless otherwise defined herein, capitalized terms used herein have the meanings
assigned in the Credit Agreement
WITNESSETH:
WHEREAS,
pursuant to the Credit Agreement, the Bank has made Loans and other financial
accommodations to the Borrower which remain outstanding;
WHEREAS,
the Borrower has requested that the Bank amend the restriction on Indebtedness
and Liens set forth in Sections 8.2(a) and 8.2(b) of the Credit Agreement,
respectively, and the Bank is willing to do so under the terms and conditions
set forth in this Amendment;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
Section
1. Amendment.
(a) Section
1
of the Credit Agreement is hereby amended by inserting the following definitions
in the appropriate alphabetical order:
“NamGem
Trading BVBA”
means
NamGem Trading BVBA, a company organized and existing under the laws of the
Kingdom of Belgium and a Subsidiary of the Borrower.
“NamGem
Trading BVI Limited”
means
NamGem Trading BVI Limited, a company limited by shares organized and existing
under the laws of the British Virgin Islands and a Subsidiary of the
Borrower.
“OPIC”
means
the Overseas Private Investment Corporation, an agency of the United States
of
America.
“OPIC
Financing Agreement”
means
that certain First Amended and Restated Finance Agreement between OPIC and
NamGem Trading BVI Limited, dated as of June 10, 2008, as the same may be
amended, modified or supplemented from time to time.
(b) Section
8.2(a) of the Credit Agreement is hereby amended by inserting the following
clause (xi) at the end thereof:
“
(xi) up
to $25,200,000 in Indebtedness of the Borrower and/or any Subsidiary of the
Borrower to OPIC with respect to the OPIC Financing Agreement.”
(c) Section
8.2(b) of the Credit Agreement is hereby amended by inserting the following
clause (viii) at the end thereof:
“(viii)
Liens
granted by Subsidiaries of the Borrower on the property and capital stock
of
such Subsidiaries in connection with the Indebtedness described in Section
8.2(a)(xi).”
(d) Section
8.2(c) of the Credit Agreement is hereby amended by inserting the following
proviso at the end of subsection (c) clause (vi):
“;
provided further,
that
such
limitation shall not apply to investments by the Borrower and its Subsidiaries
in an aggregate amount of up to $10,800,000 in NamGem Trading BVI Limited.”
(e) Section
8.3(c) of the Credit Agreement is hereby amended by deleting "1.5" and inserting
in lieu thereof "1.75."
Section
2. Effective
Date.
This
Amendment shall become effective upon the satisfaction of the following
conditions precedent:
(a) the
Borrower, the Administrative Agent and the Bank shall have executed and
delivered this Amendment;
(b) legal
matters incident to the execution and deliver of this Amendment shall be
satisfactory to the Administrative Agent and its counsel;
(c) Xxxxxx
Xxxxxx Europe Inc., Xxxxxx Xxxxxx Japan Inc. and Xxxxxx Xxxxxx Africa Inc.
shall
have executed and delivered to the Administrative Agent and their consent
to
this Amendment in the form set forth below;
(d) all
of
the representations and warranties set forth in Section 6 of the Credit
Agreement shall be true and correct and the Borrower shall be in compliance
with
the terms and conditions of the Credit Agreement and no Default or Event
of
Default has occurred under the Credit Agreement; and
(e) the
Borrower shall have paid all invoiced and unpaid out-of-pocket costs and
expenses of the Administrative Agent incurred in connection with the Borrower,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
Section
3. Miscellaneous
(a) Representations
and Warranties.
The
Borrower hereby represents and warrants as of the date hereof that (a) no
Default or Event of Default has occurred and is continuing and (b) all
representations and warranties of the Borrower contained in the Credit Agreement
are true and correct in all material respects with the same effect as if
made on
and as of such date (or if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such date).
(b) Counterparts.
This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
(c) Continuing
Effect of the Credit Agreement.
The
Borrower, the Administrative Agent and the Bank hereby acknowledge and agree
that the Credit Agreement shall continue to be and shall remain unchanged
and in
full force and effect in accordance with its terms, except as expressly modified
hereby.
(d) No
Waiver.
Nothing
contained in this Amendment shall be construed or interpreted or is intended
as
a waiver of any Default or Event of Default or of any rights, powers, privileges
or remedies that the Administrative Agent or the Bank have or may have under
the
Credit Agreement, any other related document or applicable law on account
of
such Default or Event of Default.
(e) GOVERNING
LAW.
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of
the
date first above written.
By:
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Title:
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ABN
AMRO BANK N.V., as Bank and as Agent
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By:
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Title:
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By:
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Guarantor’s
Acknowledgement and Consent
Each
of
the undersigned heretofore executed and delivered to the Bank a Guaranty
dated
August 14, 2002. Each of the undersigned hereby consents to the Tenth Amendment
to the Credit Agreement as set forth above and confirms that its Guaranty
and
all of the undersigned’s obligations thereunder remain in full force and effect.
Each of the undersigned further agrees that the consent thereof to any further
amendments to the Credit Agreement shall not be required as a result of this
consent having been obtained, except to the extent, if any, required by the
Guaranty referred to above.
Xxxxxx
Xxxxxx Europe Inc.
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By
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Name
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Title
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Xxxxxx
Xxxxxx Japan Inc.
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By
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Name
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Title
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Xxxxxx
Xxxxxx Africa Inc.
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By
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Name
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Title
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