EXHIBIT 10(t)
XXXXXX XXXXXX INTERNATIONAL INC.
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Second Amendment to Revolving Credit Agreement (herein, the "Amendment") is
entered into as of November 24, 2003, between Xxxxxx Xxxxxx International Inc.,
a Delaware corporation (the "Borrower"), and ABN AMRO Bank N.V., as
Administrative Agent (the "Agent"), ABN AMRO Bank N.V., as a lender ("ABN AMRO")
and Bank Leumi USA, as a lender ("Lami" and together with ABN AMRO, the
"Banks").
PRELIMINARY STATEMENTS
A. The Borrower, the Agent and the Banks entered into a certain
Revolving Credit Agreement, dated as of August 14, 2002, as amended by the First
Amendment to Revolving Credit Agreement between the Borrower and the Banks dated
May 28, 2003 (the Revolving Credit Agreement, as the same has been amended prior
to the date hereof, being referred to herein as the "Credit Agreement"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Banks extend the existing
Termination Date of December 1, 2004 in accordance with Section 24 and the Banks
are willing to do so under the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS
Subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Credit Agreement shall be and hereby is amended as follows:
1.1. The definition of "Termination Date" in Section 1 of the
Credit Agreement shall be amended and restated in its entirety to read
as follows:
Termination Date: December 1, 2005, or such later date as may
be extended pursuant to Section 24 hereof.
1.2. The definition of "Principal Office" of ABN AMRO in
Section 1 of the Credit Agreement shall be amended by revising
ABN AMRO's street address to read "565 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000."
1.3. The definition of "Principal Office" of Xxxxxx Xxxxxx
International Inc. in Section 1 of the Credit Agreement shall be
amended by revising Xxxxxx Xxxxxx International Inc.`s street address
to read "19 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000."
1.4 Present Exhibit C to the Credit Agreement shall be deleted
and there shall be substituted in its place Exhibit C hereto.
SECTION 2. Conditions Precedent.
The Effectiveness of this Amendment is subject to the
satisfaction of all of the conditions precedent:
2.1. The Borrower, the Agent and the Banks shall have executed
and delivered this Amendment, and the Borrower shall have executed
replacement Promissory Notes to the Banks.
2.2. The Agent shall have received copies (executed or
certified, as may be appropriate) of all legal documents or
proceedings taken in connection with the execution and delivery of
this Amendment to the extent the Agent or its counsel may reasonably
request.
2.3. Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to the Agent and its counsel.
2.4. Xxxxxx Xxxxxx Europe Inc., Xxxxxx Xxxxxx Japan Inc. and
Xxxxxx Xxxxxx Africa Inc. shall have executed and delivered to the
Agent their consent to this Amendment in the form set forth beow.
SECTION 3. Representations.
In order to induce the Banks to execute and deliver this
Amendment, the Borrower hereby represents to the Banks that as of the date
hereof the representations and warranties set forth in Section 6 of the Credit
Agreement are and shall be and remain true and correct (except that the
representations contained in Section 6(d) shall be deemed to refer to the most
recent financial statements of the Borrower delivered to the Banks) and the
Borrower is in compliance with the terms and conditions of the Credit Agreement
and no Default or Event of Default has occurred and is continuing under the
Credit Agreement or shall result after giving effect to this Amendment.
SECTION 4. Miscellaneous.
4.1. Except as specifically amended herein, the Credit
Agreement shall continue in full force and effect in accordance with
its original terms. Reference to this specific Amendment need not be
made in the Credit Agreement, the Notes, or any other instrument or
document executed in connection therewith, or in any certificate,
letter or communication issued or made persuant to or with respect to
the Credit Agreement, any referenc in any of such items to the Credit
Agerement being sufficient to refer to the Credit Agreement as amended
hereby.
4.2. The Borrower agrees to pay on demand all costs and
expenses of or incurred by the Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment,
including the fees and expenses of counsel for the Agent.
4.3. This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart
signature pages, all of which taken together shall constitute one and
the same agreement. Any of the parties hereto may execute this
Amendment by signing any such counterpart and each of such counterparts
shall for all
purposes be deemed to be an original. This Amendment shall be governed
by the internal laws of the State of New York.
[SIGNATURE PAGE TO FOLLOW]
This Second Amendment to Revolving Credit Agreement is entered into as of the
date and year first written above.
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
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Title Vice President & CFO
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XXXXXX XXXXXX INTERNATIONAL INC.
Accepted and agreed to.
ABN AMRO BANK N.V., individually and as
By /s/ Xxx Xxxxxxxxx
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Name Xxx Xxxxxxxxx
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Title VP
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By /s/ Xxxxxxxxx X. Xxxxxxxx
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Name Xxxxxxxxx X. Xxxxxxxx
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Title VP
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BANKLEUMIUSA
By /s/ Xxxxxxx Xxxxx
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Name Xxxxxxx Xxxxx
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Title V.P.
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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
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
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
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Title Secretary
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XXXXXX XXXXXX JAPAN INC,
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
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Title Secretary
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XXXXXX XXXXXX AFRICA INC
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
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Title Secretary
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AMENDED
PROMISSORY NOTE
August 14, 2002
$10,000,000 New York, New York
On December 1, 2005, FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX
INTERNATIONAL INC., a Delaware corporation (the "Borrower") promises to pay to
the order of BANK LEUMI USA at its New York office at 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000 the principal sum of Ten Million Dollars ($lO,OOO,OOO), or such
lesser amount as may be advanced to the Borrower hereon pursuant to the
Agreement hereinafter identified.
The Borrower hereby promises to pay interest (computed on the basis of
a year of 360 days for the actual number of days elapsed) on the principal
amount from time to time remaining unpaid hereon from the date hereof until paid
at the rates, and payable in the manner and on the dates, specified in the
Agreement.
All loans made by the payee hereof against this Note, and all payments
made by the Borrower on account of the unpaid principal amount hereof, shall be
recorded on the books and records of the holder hereof and endorsed hereon prior
to any transfer hereof, and the Borrower agrees that in any action or proceeding
instituted to collect or enforce collection of this Note, the amount shown as
owing on this Note on the books and records of the holder hereof shall be deemed
prima facie correct.
This Note is issued in replacement of the prior Promissory Note of the
Borrower dated August 14, 2002, issued under the terms and provisions of
Revolving Credit Agreement bearing even date herewith by and among the Borrower,
ABN AMRO BANK N.V and Bank Leumi USA (the "Agreement"), and this replacement
Note and the holder hereof are entitled to all of the benefits provided for by
said Agreement or referred to therein, including the ability of the Bank to
accelerate the payment of this Note upon the occurrence of an Event of Default,
to which Agreement reference is hereby made for a statement thereof. All
obligations of the Borrower evidenced by the prior Promissory Note shall
continue and shall be deemed to be evidenced hereby.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of New York.
The Borrower hereby promises to pay all costs and expenses (including
attorney's fees) suffered or incurred by the holder hereof in collecting this
Note or in enforcing any rights in any collateral therefor. The Borrower hereby
waives presentment for payment and notice of dishonor.
XXXXXX XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Vice President and Chief Financial Officer
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AMENDED PROMISSORY NOTE
New York, New York
August 14, 2002
$20,000,000
On December l, 2005, FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX
INTERNATIONAL INC., a Delaware corporation (the "Borrower") promises to pay to
the order of ABN AMRO Bank N.V. at its New York office at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000 the principal sum of Twenty Million Dollars
($20,000,000), or such lesser amount as may be advanced to the Borrower hereon
pursuant to the Agreement hereinafter identified.
The Borrower hereby promises to pay interest (computed on the basis of
a year of 360 days for the actual number of days elapsed) on the principal
amount from time to time remaining unpaid hereon from the date hereof until paid
at the rates, and payable in the manner and on the dates, specified in the
Agreement.
All loans made by the payee hereof against this Note, and all payments
made by the Borrower on account of the unpaid principal amount hereof, shall be
recorded on the books and records of the holder hereof and endorsed hereon prior
to any transfer hereof, and the Borrower agrees that in any action or proceeding
instituted to collect or enforce collection of this Note, the amount shown as
owing on this Note on the books and records of the holder hereof shall be deemed
prima facie correct.
This Note is issued in replacement of the prior Promissory Note of the
Borrower dated August 14, 2002, issued under the terms and provisions of
Revolving Credit Agreement bearing even date herewith by and among the Borrower,
ABN AMRO BANK N.V and Bank Leumi USA (the "Agreement"), and this replacement
Note and the holder hereof are entitled to all of the benefits provided for by
said Agreement or referred to therein, including the ability of the Bank to
accelerate the payment of this Note upon the occurrence of an Event of Default,
to which Agreement reference is hereby made for a statement thereof. All
obligations of the Borrower evidenced by the prior Promissory Note shall
continue and shall be deemed to be evidenced hereby.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of New York.
The Borrower hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or in enforcing any rights in any collateral therefor. dishonor.The
Borrower hereby waives presentment for payment and notice of dishonor.
XXXXXX XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Vice President and Chief Financial Officer
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