FIFTH AMENDMENT AND AGREEMENT TO
LOAN AGREEMENT
This Fifth Amendment and Agreement to Loan Agreement is made as of the
______ day of ____________, 2000, by and between FLEET BANK, N. A., a national
banking association ("Fleet"); and BANK LEUMI USA, formerly known as Bank Leumi
Trust Company of New York, a New York banking corporation ("Bank Leumi"; Fleet
and Bank Leumi are hereinafter referred to together as the "Banks"); and XXXXXX
XXXXXX INTERNATIONAL INC., a Delaware corporation (the "Borrower").
WITNESSETH THAT:
WHEREAS, Fleet has extended a term loan to Xxxxxx Xxxxxx Japan, Inc., a
corporation ("Xxxxxx Xxxxxx Japan") organized under the laws of Delaware in the
sum of One Billion One Hundred Million Japanese Yen ('Y'1,100,000,000) (the
"Xxxxxx Xxxxxx Japan Loan"); and
WHEREAS, the Borrower guaranteed the payment and performance of the
Xxxxxx Xxxxxx Japan Loan and secured its guaranty by pledging the sum of Ten
Million Ten Thousand Ten and 01/100 Dollars ($10,010,010.01) to Fleet (the
"Pledged Collateral"); and
WHEREAS, the Borrower has agreed to assume the obligations under the
Xxxxxx Xxxxxx Japan Loan and will be jointly and severally liable with Xxxxxx
Xxxxxx Japan for the repayment of the Xxxxxx Xxxxxx Japan Loan; and
WHEREAS, in consideration thereof Fleet will release its security
interest in the Pledged Collateral and the Borrower will use the proceeds of the
Pledged Collateral to repay its obligations to Fleet under the Loan Agreement
dated as of May 14, 1996, as amended from time to time (as amended, the "Loan
Agreement") between the Banks and the Borrower; and
WHEREAS, the Banks and the Borrower desire to amend the Loan Agreement,
in order to reduce the availability of the revolving loan extended thereunder by
the US Dollar equivalent of the outstanding principal balance of the Xxxxxx
Xxxxxx Japan Loan;
NOW, THEREFORE, for value received, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have the
definitions assigned by the Loan Agreement.
2. Effective the date hereof, Article One of the Loan Agreement is
amended by adding a new definition for "Xxxxxx Xxxxxx Japan Loan Indebtedness"
to read in its entirety as follows:
"Xxxxxx Xxxxxx Japan Loan Indebtedness means the outstanding
principal balance of the Xxxxxx Xxxxxx Japan Loan from time to time."
3. Effective the date hereof, the definition of "Commitment" set forth
in Article 1 of the Loan Agreement is amended in its entirety as follows:
"Commitment: as to each Bank, the amount set forth opposite
such Bank's name on the signature page hereof under the caption
"Commitment", as such amount is subject to reduction in accordance with
the terms hereof, provided, however, in the case of Fleet, the Xxxxxx
Xxxxxx Japan
Foreign Currency/Interest Rate Risk and the Xxxxxx Xxxxxx Japan Loan
Indebtedness shall be deemed to be included as indebtedness incurred
pursuant to Fleet's Commitment."
4. The Banks and the Borrower hereby acknowledge and agree that the
Xxxxxx Xxxxxx Japan Loan Indebtedness shall be deemed to be indebtedness of the
Borrower to the Banks under the Loan Agreement for all purposes of determining
the amount of the Loans outstanding under the Loan Agreement and for determining
the utilization of the Total Commitment and each Bank's respective Commitment.
The Xxxxxx Xxxxxx Japan Loan Indebtedness shall not be deemed to be indebtedness
under the Loan Agreement for purposes of imposing an interest charge thereon.
5. Notwithstanding the provisions of Paragraph 2.16(iv) of the Loan
Agreement, the Banks agree to the repayments of Loans extended by Fleet to the
Borrower under the Loan Agreement by an amount equal to the outstanding
principal balance of the Pledged Collateral.
6. Effective the date hereof, the Loan Agreement is amended by adding a
new Paragraph 10 entitled "General Provisions" to read in its entirety as
follows (in the event of any inconsistency between the Loan Agreement and the
provisions of this Paragraph 10, the provisions of this Paragraph 10 shall
prevail and govern):
"10. General Provisions.
10.1 All payments shall be made by the Borrower at the offices
of the Banks herein set forth or such other place as the Banks may from
time to time specify in writing in lawful currency of the United States
of America in immediately available funds, without counterclaim or
setoff and free and clear of, and without any deduction or withholding
for, any taxes or other payments.
10.2 All payments shall be applied first to the payment of all
fees, expenses and other amounts due to the Banks (excluding principal
and interest), then to accrued interest and the balance on account of
outstanding principal; provided, however, that after the occurrence of
an Event of Default, payments will be applied to the obligations of the
Borrower to the Banks as the Banks determines in their sole discretion.
10.3 The Following Business Day Convention shall be used to
adjust any relevant date if that date would otherwise fall on a day
that is not a Business Day. For the purposed herein, the term Following
Business Day Convention shall mean that an adjustment will be made if
any relevant date would otherwise fall on a day that is not a Business
Day so that the date will be the first following day that is a Business
Day. "Business Day" means, in respect of any date that is specified in
this Loan Agreement to be subject to adjustment in accordance with the
Following Business Day Convention, a day on which commercial banks
settle payments in New York, if the payment obligation is calculated by
reference to Prime Rate. All payments hereunder shall be adjusted in
accordance with the Following Business Day Convention.
10.4 If this Loan Agreement or any payment hereunder becomes
due on a day which is not a Business Day (as defined below), the due
date of this Loan Agreement or payment shall be extended to the next
succeeding Business Day, and such extension of time shall be included
in computing interest and fees in connection with such payment. As used
herein, "Business Day" shall mean any day other than a Saturday, Sunday
or day which shall be in the State of New York a legal holiday or day
on which banking institutions are required or authorized to close.
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10.5 The Borrower shall pay on demand all expenses of the
Banks in connection with the preparation, administration, default,
collection, wavier or amendment of loan terms, or in connection with
the Banks' exercise, preservation or enforcement of any of their
rights, remedies or options hereunder, including, without limitation,
fees of outside legal counsel or the allocated costs of in-house legal
counsel, accounting, consulting, brokerage or other costs relating to
any appraisals or examinations conducted in connection with the loan or
any collateral therefor, and the amount of all such expenses shall,
until paid, bear interest at the rate applicable to principal hereunder
(including any default rate) and be an obligation secured by any
collateral.
10.6 The term "Prime Rate" means the variable per annum rate
of interest so designated from time to time by Fleet National Bank as
its prime rate. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any the
Borrower.
10.7 Changes in the rate of interest resulting from changes in
the Prime Rate shall take place immediately without notice or demand of
any kind.
10.8 All computations of interest shall be made on the basis
of a three hundred sixty (360) day year and the actual number of days
elapsed.
10.9 Upon default (whether or not the Banks have accelerated
payment of this Loan Agreement), or after maturity or after judgment
has been rendered on this Notes, the Borrower's right to select pricing
options shall cease and the unpaid principal of all Advances shall, at
the option of the Banks, bear interest at a rate which is four (4)
percentage points per annum greater than that which would otherwise be
applicable.
10.10 If the entire amount of any required principal and/or
interest is not paid in full within ten (10) days after the same is
due, the Borrower shall pay to the Banks a late fee equal to five
percent (5%) of the required but unpaid payment.
10.11 All agreements between the Borrower and the Banks are
hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of the indebtedness
evidenced hereby or otherwise, shall the amount paid or agreed to be
paid to the Banks for the use or the forbearance of the indebtedness
evidenced hereby exceed the maximum permissible under applicable law.
As used herein, the term "applicable law" shall mean the law in effect
as of the date hereof; provided, however, that in the event there is a
change in the law which results in a higher permissible rate of
interest, then this Loan Agreement shall be governed by such new law as
of its effective date. In this regard, it is expressly agreed that it
is the intent of the Borrower and the Banks in the execution, delivery
and acceptance of this Loan Agreement to contract in strict compliance
with the laws of the State of New York from time to time in effect. If,
under or from any circumstances whatsoever, fulfillment of any
provision hereof or of any of the Loan Documents at the time of
performance of such provision shall be due, shall involve transcending
the limit of such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits
of such validity, and if under or from circumstances whatsoever the
Banks should ever receive as interest an amount which would exceed the
highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the principal balance evidenced
hereby and not to the
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payment of interest. This provision shall control every other
provision of all agreements between the Borrower the Banks.
10.12 The Borrower and, by affirming its Guaranty, the
Guarantors hereby grant to the Banks, a continuing lien, security
interest and right of setoff as security for all liabilities and
obligations to the Banks, whether now existing or hereafter arising,
upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of the
Banks or any entity under the control of FleetBoston Financial
Corporation and its successors and assigns or in transit to any of
them. At any time, without demand or notice (any such notice being
expressly waived by the Borrower), the Banks may setoff the same or any
part thereof and appy the same to any liability or obligation of the
Borrower and any Guarantor even though unmatured and regardless of the
adequacy of any other collateral securing the Loan. ANY AND ALL RIGHTS
TO REQUIRE THE BANKS TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT
TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING
THEIR RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE BORROWER OR THE GUARANTORS, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
10.13 THE BORROWER AND THE BANKS MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN ) OR
ACTIONS OF ANY PART, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE BANKS
RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN
DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE BORROWER HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANKS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANKS WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANKS TO ACCEPT THIS LOAN
AGREEMENT AND EXTEND THE LOAN FACILITY.
10.14 The Banks may at any time pledge or assign all or any
portion of their rights under the loan documents, including any portion
of their respective Note, to any of the twelve (12) Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
341. No such pledge or assignment or enforcement thereof shall release
the Banks from their obligations under any of the loan documents.
10.15 Each of the Banks shall have the unrestricted right at
any time or from time to time, and without the Borrower's or any
Guarantor's consent, to assign all or any portion of its
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rights and obligations hereunder to one or more banks or other
financial institutions (each, an "Assignee"), and the Borrower and the
Guarantors agree that they shall execute, or cause to be executed,
such documents, including without limitation, amendments to this Loan
Agreement and to any other documents, instruments and agreements
executed in connection herewith as the Banks shall deem necessary to
effect the foregoing. In addition, at the request of the Banks and any
such Assignee, the Borrower shall issue one or more new promissory
notes, as applicable, to any such Assignee and, if the applicable Bank
has retained any of its rights and obligations hereunder following
such assignment, to such Bank, which new promissory notes shall be
issued in replacement of, but not in discharge of, the liability
evidenced by the promissory note held by such Bank prior to such
assignment and shall reflect the amount of the respective commitments
and loans held by such Assignee and such Bank after giving effect to
such assignment. Upon the execution and delivery of appropriate
assignment documentation, amendments and any other documentation
required by the Banks in connection with such assignment, and the
payment by Assignee of the purchase price agreed to by such Bank, and
such Assignee, such Assignee shall be a party to this Loan Agreement
and shall have all of the rights and obligations of the Banks
hereunder (and under any and all other guaranties, documents,
instruments and agreements executed in connection herewith) to the
extent that such rights and obligations have been assigned by a Bank
pursuant to the assignment documentation between such Bank and such
Assignee, and such Bank shall be released from its obligations
hereunder and thereunder to a corresponding extent. The Banks may
furnish any information concerning the Borrower in their possession
from time to time to prospective Assignees, provided that such Bank
shall require any such prospective Assignees to agree in writing to
maintain the confidentiality of such information.
10.16 Each of the Banks shall have the unrestricted right at
any time and from time to time, and without the consent of or notice to
the Borrower or the Guarantors, to grant to one or more banks or other
financial institutions (each, a "Participant") participating interests
in such Bank's obligation to lend hereunder and/or any or all of the
loans held by such Bank hereunder. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon
notice to the Borrower, such Bank shall remain responsible for the
performance of its obligations hereunder and the Borrower shall
continue to deal solely and directly with the Banks in connection with
such Bank's rights and obligations hereunder. The Banks may furnish any
information concerning the Borrower in their possession from time to
time to prospective Participants, provided that the Banks shall require
any such prospective Participant to agree in writing to maintain the
confidentiality of such information.
10.17 This Loan Agreement and the rights and obligations of
the parties hereunder shall be construed and interpreted in accordance
with the laws of the State of New York (the "Governing State")
(excluding the laws applicable to conflicts or choice of law).
10.18 THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY
MAIL AT THE ADDRESS SET FORTH IN THIS LOAN AGREEMENT. THE BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT
IN AN INCONVENIENT FORUM.
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10.19 This Loan Agreement is intended by the parties as the
final, complete and exclusive statement of the transactions evidenced
by this Loan Agreement. All prior or contemporaneous promises,
agreements and understandings, whether oral or written, are deemed to
be superseded by this Loan Agreement, and no party is relying on any
promise, agreement or understanding not set forth in this Loan
Agreement. This Loan Agreement may not be amended or modified except by
a written instrument describing such amendment or modification executed
by the Borrower and the Banks.
10.20 No portion of the proceeds of the loan shall be used, in
whole or in part, for the purpose of purchasing or carrying any "margin
stock" as such term is defined in Regulation U of the Board of
Governors of the Federal Reserve System.
10.21 Upon receipt of an affidavit of an officer of a Bank as
to the loss, theft, destruction or mutilation of a Note or any other
security document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of
such Note or other security document in the same principal amount
thereof and otherwise of like tenor.
7. All references to the "Loan Agreement" in the Loan Agreement, the
Notes and in all documents executed or delivered in connection with the Loan
Agreement shall from and after the effective date hereof refer to the Loan
Agreement, as amended hereby.
8. Except as amended hereby, the Loan Agreement shall remain in full
force and effect and is in all respects hereby ratified and affirmed.
9. The Borrower y covenants and agrees to pay all out-of-pocket
expenses, costs and charges incurred by the Banks (including reasonable fees and
disbursements of counsel) in connection with the preparation and execution of
this Fifth Amendment and Agreement to Loan Agreement.
IN WITNESS WHEREOF, the undersigned parties have caused this Fifth
Amendment and Agreement to Loan Agreement to be executed by their duly
authorized officers as of the date first above written.
WITNESS: XXXXXX XXXXXX INTERNATIONAL INC.
___________________________ By:___________________________
Title:
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Commitment (including the indebtedness FLEET BANK, N.A.
under the Xxxxxx Xxxxxx Japan
Foreign Currency/Interest Rate Risk and
the Xxxxxx Xxxxxx Japan Loan Indebtedness)
$24,000,000 By:________________________
Title:
By:________________________
Title:
Commitment: BANK LEUMI USA
$16,000,000
By:________________________
Title:
By:________________________
Title:
Acknowledged and Agreed to:
XXXXXX XXXXXX EUROPE INC.
By:____________________________
Title:
XXXXXX XXXXXX BELGIUM, N.V.
By:____________________________
Title:
XXXXXX XXXXXX GHANA LTD.
By:____________________________
Title:
SUPREME GEMS N.V.
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By:____________________________
Title:
XXXXXX XXXXXX AFRICA, INC.
By:____________________________
Title:
XXXXXX XXXXXX JAPAN, INC.
By:____________________________
Title:
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