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Exhibit 10(b)
FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of August 2, 1999
(this "Amendment"), is among XXXXX INDUSTRIES, INC., an Ohio corporation (the
"Company"), the foreign subsidiary borrowers party hereto (the "Foreign
Subsidiary Borrowers", and together with the Company, the "Borrowers", the
lenders party hereto (collectively, the "Lenders") and BANK ONE, MICHIGAN,
formerly known as NBD Bank, a Michigan banking corporation, as agent for the
Lenders (in such capacity, the "Agent").
RECITALS
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A. The Borrowers, the Agent and the Lenders are parties to a Loan
Agreement dated as of February 3, 1999 (as now and hereafter amended, the
"Loan Agreement").
B. The Borrowers desire to amend the Loan Agreement, and the Agent
and the Lenders are willing to do so in accordance with the terms hereof.
TERMS
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In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth
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in Article III hereof, the Loan Agreement shall be amended as follows:
1.1 The text (exclusive of exhibits and schedules) of the Loan
Agreement is amended to read in its entirety as shown on Annex I attached
hereto.
1.2 Schedules 1.1(a), 1.1(b) and 6.14 and the Pricing Schedule on
Exhibit A to the Loan Agreement are replaced with Schedules 1.1(a), 1.1(b)and
6.14 and the Pricing Schedule attached as Exhibit A hereto, respectively.
ARTICLE II. REPRESENTATIONS. Each Borrower represents and warrants to
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the Agent and the Lenders that:
2.1 The execution, delivery and performance of this Amendment is
within its powers, has been duly authorized and is not in contravention of any
statute, law or regulation known to it or of any terms of its Articles of
Incorporation or By-laws, or of any material agreement or undertaking to which
it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of each
Borrower enforceable against each in accordance with the terms hereof.
2.3 After giving effect to the amendments contained herein, the
representations and warranties contained in Article V of the Loan Agreement
are true on and as of the date hereof with the same force and effect as if
made on and as of the date hereof.
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2.4 No Default or Unmatured Default exists or has occurred and is
continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not
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become effective until each of the following conditions is satisfied:
3.1 The Borrowers and the Lenders shall have signed this Amendment.
3.2 The Borrowers and the Guarantors shall have delivered such
resolutions, officer's certificates and legal opinions as the Agent may
reasonably request.
3.3 The Company shall have delivered all of the Xxxxxx Acquisition
Documents to the Agent, which shall be in form and substance satisfactory to
the Agent.
3.4 The Company shall have delivered to the Agent such other
documents and satisfied such other conditions, if any, as reasonably requested
by the Agent.
ARTICLE IV. MISCELLANEOUS.
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4.1 The Company agrees to pay the Agent on the First Amendment
Effective Date, for the benefit of the appropriate Lender, the fees set forth
in a separate fee letter dated the date hereof.
4.2 References in the Loan Agreement or in any other Loan Document to
the Loan Agreement shall be deemed to be references to the Loan Agreement as
amended hereby and as further amended from time to time.
4.3 Except as expressly amended hereby, the Company and each
Guarantor agree that the Loan Agreement and all other Loan Documents are
ratified and confirmed, as amended hereby, and shall remain in full force and
effect in accordance with their terms and that they are not aware of any set
off, counterclaim, defense or other claim or dispute with respect to any of
the foregoing.
4.4 Terms used but not defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement. This Amendment may be signed
upon any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument, and telecopied signatures
shall be effective as originals.
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IN WITNESS WHEREOF, the parties signing this Amendment have
caused this Amendment to be executed and delivered as of the day and year
first above written.
XXXXX INDUSTRIES, INC
By:___________________________
Print Name:___________________
Title:________________________
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FOREIGN SUBSIDIARY BORROWERS:
XXXXX XX, SA
By:_________________________________
Print Name:_________________________
Title:______________________________
MYELin International Finance, SA
By:_________________________________
Print Name:_________________________
Title:______________________________
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BANK ONE, MICHIGAN, as Agent and as a
Lender
By:__________________________________
Print Name:__________________________
Title:_______________________________
FIRST CHICAGO NBD BANK, CANADA, as the
Affiliate designated by Bank One, Michigan
to make Multicurrency Loans to the Canadian
Borrower on its behalf
By:___________________________________
Print Name:___________________________
Title:________________________________
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SOCIETE GENERALE NEW YORK BRANCH
By:___________________________________
Print Name:___________________________
Title:________________________________
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KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Print Name:_________________________
Title:______________________________
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THE CHASE MANHATTAN BANK
By:_________________________________
Print Name:_________________________
Title:______________________________
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MELLON BANK, N.A.
By:_______________________________
Print Name:_______________________
Title:____________________________
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NATIONAL CITY BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
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STAR BANK, N.A.
By:______________________________
Print Name:______________________
Title:___________________________
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XXXXXX TRUST AND SAVINGS BANK
By:________________________________
Print Name:________________________
Title:_____________________________
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FIRSTMERIT BANK, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
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FIFTH THIRD NATIONAL BANK
By:_______________________________
Print Name:_______________________
Title:____________________________
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XXX XXXXXX XXXX
By:_______________________________
Print Name:_______________________
Title:____________________________
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COMERICA BANK
By:________________________________
Print Name:________________________
Title:_____________________________
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CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated hereby and agrees to all
terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty and all other agreements executed by
any of the undersigned in connection with the Credit Agreement or otherwise in
favor of the Agent or the Banks (collectively, the "Security Documents") are
hereby ratified and confirmed and shall remain in full force and effect, and
each of the undersigned acknowledges that it has no setoff, counterclaim or
defense with respect to any Security Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Banks' obligation under this Amendment and it is in its interest and to
its financial benefit to execute this consent and agreement.
BUCKHORN, INC.
By: ___________________________________
Its: ______________________________
AMERI-KART CORP.
By: ___________________________________
Its: ______________________________
BUCKHORN RUBBER PRODUCTS, INC.
By: ___________________________________
Its: ______________________________
PATCH RUBBER COMPANY
By: ___________________________________
Its: ______________________________
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