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EXHIBIT 10.13.2
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED JANUARY 29, 1999
This Amendment No. 1 dated as of January 29, 1999 ("Amendment") is
among Xxxxxxxxxx-Xxxxxxx International, Inc., a Delaware corporation ("Company"
or "Guarantor"), Xxxxxxxxxx-Xxxxxxx France S.A.R.L., a French corporation
("SMF"), PDM Industries, S.N.C., a French corporation ("PDM"),
Xxxxxxxxxx-Xxxxxxx Spain, S.L., sociedad unipersonal, a, Spanish corporation
with a sole shareholder ("SMS", together with the Company, SMF and PDM, the
"Borrowers"), the banks party hereto ("Banks") and Societe Generale, as agent
for the Banks ("Agent").
INTRODUCTION
A. The Borrowers, the Guarantor, the Banks and the Agent are party to
the Amended and Restated Credit Agreement dated as of January 30, 1998 (as
amended, the "Credit Agreement").
B. The Borrowers have requested that the Banks agree to (1) extend
the Maturity Date of the U.S. Revolving Commitments and the French Revolving
Commitments under the Credit Agreement from January 29, 1999 to January 28,
2000, (2) consent to the assignment and assumption of the obligations of SMS
under the Spanish Term Note to the Company, and (3) make certain other
modifications to the Credit Agreement.
THEREFORE, the Borrowers, the Guarantor, the Agent and the Banks
hereby agree as follows:
Section 1. Definitions; References. Unless otherwise defined in this
Amendment, terms used in this Amendment which are defined in the Credit
Agreement shall have the meanings assigned to such terms in the Credit
Agreement.
Section 2. Amendments.
(a) Upon the satisfaction of each of the conditions precedent set
forth in Section 6 below, the Credit Agreement will be
amended as follows:
(i) Section 1.01 of the Credit Agreement is hereby
amended as follows:
(A) by deleting the date "January 29, 1999" in
the definition of "Maturity Date" and
replacing it with the date "January 28,
2000"; and
(B) by deleting the percentage ".20%" in the
definition of "Applicable Margin" and
replacing it with the percentage ".45%".
(ii) Section 2.03(a) of the Credit Agreement is hereby
amended as follows:
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(A) by deleting the percentage ".10%" and
replacing it with the percentage ".15%";
and
(B) by deleting the date "March 31, 1998" and
replacing it with the date "March 31,
1999".
(b) Upon the satisfaction of each of the conditions precedent set
forth in Section 7 below, the Credit Agreement will be amended as follows:
(i) Section 1.01 of the Credit Agreement is hereby
amended as follows:
(A) the definition of "Borrower" is amended in
its entirety as follows:
"Borrower" means (a) with respect to the
U.S. Revolving Advances, the U.S. Term Advances and
the Spanish Term Advances, the Company, (b) with
respect to the French Revolving Advances, SMF and
PDM, and (c) with respect to the French Term
Advances, SMF, and "Borrowers" shall refer to all
such Persons collectively.
(B) the definition of "Spanish Term Advance" is
amended by replacing "SMS" with "the
Company".
(C) the definition of "Spanish Term Note" is
amended in its entirety as follows:
"Spanish Term Note" means a promissory note
of the Company payable to the order of any
Bank in substantially the form of the
attached Exhibit B-5, evidencing
indebtedness of the Company to such Bank
resulting from any Spanish Term Advance of
such Bank.
(ii) The last sentence of Section 2.02(g) of the Credit
Agreement is amended in its entirety as follows:
The indebtedness of the Company to each
Bank resulting from the Spanish Term
Advance owing to such Bank shall be
evidenced by the Spanish Term Note of the
Company payable to the order of such Bank.
(iii) Exhibit B-5 to the Credit Agreement is hereby
amended in its entirety by attaching the attached
"Exhibit B-5 - Form of Spanish Term Note".
(iv) Section 2.05(b)(iii) of the Credit Agreement is
hereby amended in its entirety as follows:
The Company shall ratably repay the Spanish
Term Advances to the Banks based on each
Bank's Spanish Term Share in installments
in the aggregate amounts and on the dates
indicated as follows:
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Date Amount
---- ------
January 31, 2002 $6,666,666
July 31, 2002 $6,666,667
January 31, 2003 $6,666,667
Section 3. Assignment and Assumption. Upon the assignment and
assumption of the obligations of SMS under the Spanish Term Note to the Company
(the "Assignment and Assumption Date"), the Company assumes and agrees to be
primarily liable for the payment and performance of, all of SMS's obligations
now or hereafter arising under, or in connection with, the Spanish Term Note
(collectively, the "SMS Obligations"). The Company's obligations under the
Spanish Term Note shall apply to and cover all amendments, modifications,
supplements or restatements of the Credit Agreement or the SMS Obligations
thereunder. Additionally, as of the Assignment and Assumption Date, the Company
agrees to be substituted for SMS as a Borrower under the Credit Agreement and
undertakes to perform all the obligations expressed therein, respectively, of
SMS as a Borrower and agrees to be bound by all of the provisions and covenants
of the Spanish Term Note and the other Credit Documents to which SMS is a party
as if the Company had been an original party to such agreements in such
capacity.
Section 4. Reaffirmation of Guaranty. The Company hereby reaffirms
its obligations under Article VIII of the Credit Agreement and agrees to remain
liable for the repayment of the Guaranteed Obligations (as defined therein).
The Company's obligations under the Guaranty shall continue to be enforceable
against it notwithstanding the assumption of liabilities by the Company
pursuant to Section 3 of this Amendment.
Section 5. Representations and Warranties. The Borrowers and the
Guarantor represent and warrant to the Agent and the Banks as of the date
hereof and as of the Assignment and Assumption Date that:
(a) Any representations and warranties set forth in the Credit
Agreement and in the other Credit Documents (other than those
made as of a specific date) are true and correct in all
material respects;
(b) (i) The execution, delivery and performance of this Amendment
are within the corporate power and authority of the Borrowers
and the Guarantor and have or will have been duly authorized
by appropriate proceedings and (ii) this Amendment
constitutes a legal, valid, and binding obligation of the
Borrowers and the Guarantor enforceable in accordance with
its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws
affecting the rights of creditors generally and general
principles of equity;
(c) No Default or Event of Default has occurred and is
continuing; and
(d) No Potential Phaseout Event has occurred.
Section 6. Effectiveness. This Amendment shall become effective and
the Credit Agreement shall be amended as provided in Section 2(a) of this
Amendment upon the occurrence of the following conditions precedent:
(a) The Agent shall have received this Amendment duly and validly
executed by all the parties thereto, in form and substance
satisfactory to the Agent; and
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(b) The representations and warranties in this Amendment shall be
true and correct in all material respects.
Section 7. Effectiveness. The Credit Agreement shall be amended as
provided in Section 2(b) of this Amendment upon the occurrence of the following
conditions precedent:
(a) The Agent shall have received the following duly and validly
executed by all the parties thereto, in form and substance
satisfactory to the Agent of:
(i) replacement Spanish Term Notes dated as of the
Assignment and Assumption Date executed by the
Company payable to the order of each of the Banks
evidencing the indebtedness of the Company to the
Banks resulting from the outstanding Spanish Term
Advances of the Bank (the "New Spanish Term Notes");
(ii) certificates from the appropriate Governmental
Authority certifying as to the good standing,
existence and authority of the Company in all
jurisdictions where the Company is organized or does
business;
(iii) copies, certified as of the Assignment and
Assumption Date by a Responsible Officer of the
Company of (A) the resolutions of the Board of
Directors of the Company approving this Amendment,
the New Spanish Term Notes and the other Credit
Documents to which the Company is a party, (B) the
articles or certificate (as applicable) of
incorporation and bylaws of the Company, and (C) all
other documents evidencing other necessary corporate
action and governmental approvals, if any, with
respect to this Amendment, the New Spanish Term
Notes, and the other Credit Documents to which the
Company is a party; and
(iv) certificates of a Responsible Officer of the Company
certifying the names and true signatures of officers
of the Company authorized to sign this Amendment,
the New Spanish Term Note and the other Credit
Documents to which the Company is a party; and
(b) The representations and warranties in this Amendment shall be
true and correct in all material respects.
Section 8. Release of SMS. Upon the satisfaction of the conditions
precedent set forth in Section 7 and on and after the Assignment and Assumption
Date, the Agent and the Banks hereby release and discharge SMS from all present
and future obligations and liabilities under the Credit Agreement and the
Spanish Term Notes.
Section 9. Choice of Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of New York.
Section 10. Counterparts. This Amendment may be signed in any number
of counterparts, each of which shall be an original.
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EXECUTED as of the 29th day of January, 1999.
BORROWERS:
XXXXXXXXXX-XXXXXXX INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
XXXXXXXXXX-XXXXXXX FRANCE S.A.R.L.
By: /s/ XXXX-XXXXXX LE HETET
-------------------------------------------
Xxxx-Xxxxxx Le Hetet
Gerant (Manager)
PDM INDUSTRIES S.N.C.
By: Papeteries de Mauduit S.A., as Manager
By: /s/ XXXX-XXXXXX LE HETET
-------------------------------------------
Xxxx-Xxxxxx Le Hetet
Legal Representative
XXXXXXXXXX-XXXXXXX SPAIN, S.L.
By: /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
Board Delegate
GUARANTOR:
XXXXXXXXXX-XXXXXXX INTERNATIONAL, INC.
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
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AGENT:
SOCIETE GENERALE
By: /s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
Director
BANKS:
SOCIETE GENERALE
By: /s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
Director
BANQUE NATIONALE DE PARIS
By: /s/
--------------------
Name:
Title:
CREDIT LYONNIAS
By: /s/
--------------------
Name:
Title:
CREDIT NATIONAL
By: /s/
--------------------
Name:
Title:
NATEXIS BANQUE
By: /s/
--------------------
Name:
Title:
By: /s/
--------------------
Name:
Title:
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SUNTRUST BANK, ATLANTA
By: /s/
--------------------
Name:
Title:
By: /s/
--------------------
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/
--------------------
Name:
Title:
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EXHIBIT B-5
SPANISH TERM NOTE
$___________________ [Assignment and Assumption Date]
For value received, the undersigned, Xxxxxxxxxx-Xxxxxxx International,
Inc., a Delaware corporation (the "Company"), hereby promises to pay to
____________________________________("Bank") the principal amount of
______________________ and __/100 Dollars ($________________) or, if less, the
aggregate outstanding principal amount of each Spanish Term Advance (as defined
in the Credit Agreement referred to below) made by the Bank to the Company,
together with interest on the unpaid principal amount of each such Spanish Term
Advance from the date of such Spanish Term Advance until such principal amount
is paid in full, at such interest rates, and at such times, as are specified in
the Credit Agreement.
This Note is one of the Spanish Term Notes referred to in, and is
entitled to the benefits of, and is subject to the terms of, the Amended and
Restated Credit Agreement dated as of January 30, 1998 (as the same may be
amended or modified from time to time, the "Credit Agreement"), among
Xxxxxxxxxx-Xxxxxxx International, Inc., a Delaware corporation,
Xxxxxxxxxx-Xxxxxxx France S.A.R.L., a French corporation, PDM Industries
S.N.C., a French corporation, Xxxxxxxxxx-Xxxxxxx Spain, S.L., sociedad
unipersonal, a Spanish corporation with a sole shareholder, the Banks and
Societe Generale, as Agent for the Banks. Capitalized terms used in this Note
that are defined in the Credit Agreement and not otherwise defined in this Note
have the meanings assigned to such terms in the Credit Agreement. The Credit
Agreement, among other things, (a) provides for the maintaining of Spanish Term
Advances by the Bank to the Company from time to time in an aggregate amount
not to exceed at any time outstanding the Dollar amount first above mentioned,
the indebtedness of the Company resulting from each such Spanish Term Advance
being evidenced by this Note and (b) contains provisions for acceleration of
the maturity of this Note upon the happening of certain events stated in the
Credit Agreement and for prepayments of principal prior to the maturity of this
Note upon the terms and conditions specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Agent at 4800 Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000 (or at such other location or address as may be specified
by the Agent in writing to the Company) in same day funds. The Bank shall
record all Spanish Term Advances and payments of principal made under this
Note, but no failure of the Bank to make such recordings shall affect the
Company's repayment obligations under this Note.
Except as specifically provided in the Credit Agreement, the Company
hereby waives presentment, demand, protest, notice of intent to accelerate,
notice of acceleration, and any other notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder of this Note shall operate as a waiver of such rights.
Subject to applicable federal law, this Note shall be governed by and
construed and enforced in accordance with the laws of the state of New York.
XXXXXXXXXX-XXXXXXX INTERNATIONAL, INC.
By:
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Name:
----------------------------------------
Title:
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