AMENDMENT NO. 1 TO LOAN AGREEMENT
AMENDMENT NO. 1 TO LOAN AGREEMENT (this "First Amendment"), made and
executed as of November 29, 1996, by and among:
XXXXXX XXXXXX INTERNATIONAL INC., a Delaware corporation (the
"Borrower");
FLEET BANK, N.A. (formerly NatWest Bank N.A.), a national banking
association, ("Fleet"); and
BANK LEUMI TRUST COMPANY OF NEW YORK, a New York banking corporation
("Bank Leumi"; Fleet and Bank Leumi are hereinafter sometimes referred to
individually as a "Bank" and together as the "Banks");
W I T N E S S E T H:
WHEREAS:
(A) The Borrower has entered into a certain Loan Agreement dated May
14, 1996 (together with all Exhibits and Schedules thereto, hereinafter referred
to as the "Loan Agreement") with the Banks pursuant to which the Banks have
agreed to make Loans to the Borrower in the aggregate principal amount of up to
Twenty-Seven Million Five Hundred Thousand ($27,500,000) Dollars on the terms
and conditions set forth in the Loan Agreement;
(B) All capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed thereto in the Loan Agreement;
(C) The Borrower has requested that the Banks increase the amount of
the Total Commitment from Twenty-Seven Million Five Hundred Thousand
($27,500,000) Dollars to Thirty-Five Million Five Hundred Thousand ($35,500,000)
Dollars; and
(D) The Banks are willing to increase the Total Commitment as
aforesaid, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1. Construction; Changes in Commitments;
Amendments to Loan Agreement; Allonges to Notes.
1.1 Construction. All of the terms and provisions of this
First Amendment are hereby incorporated by reference into the Loan Agreement as
if such terms and provisions were set forth therein.
1.2 Change in Commitments.
1.2.1 From and after the date hereof, the Commitment
of each Bank shall be the amount set forth opposite such Bank's name under the
heading "Commitment" on the signature pages hereto, and such amount shall
supersede and be deemed to amend the amount of such Bank's respective Commitment
as set forth opposite its name under the heading "Commitment" on the signature
pages to the Loan Agreement as in effect immediately prior to the effectiveness
of this First Amendment.
1.2.2 The phrase "the amount set forth opposite such
Bank's name on the signature pages hereof under the caption 'Commitment' as such
amount is subject to reduction in accordance with the terms hereof", appearing
in the definition of "Commitment" in Article 1 of the Loan Agreement, shall be
deemed to refer to the amounts set forth opposite each Bank's name on the
signature pages to this First Amendment.
1.3 Amendments. The Loan Agreement is hereby amended,
effective upon the consummation of the conditions precedent set forth in Article
5 hereof, as follows:
1.3.1 The Recital appearing on page 1 of the Loan
Agreement is amended by deleting the dollar amount "Twenty-Seven Million Five
Hundred Thousand ($27,500,000) Dollars" and substituting therefor the dollar
amount "Thirty-Five Million Five Hundred Thousand ($35,500,000) Dollars".
1.3.2 Article 1 of the Loan Agreement (Definitions)
is amended as follows:
(a) The following definition is added in its
appropriate alphabetic location:
"Amendment No. 1: Amendment No. 1 to Loan Agreement
dated as of November 29, 1996, by and among the Borrower and the Banks."
(b) The definitions of "Cash Flow", and "Total
Commitment" are deleted in their entirety and the following definitions are
substituted therefor, respectively:
"Cash Flow: for any period, the consolidated net
income of any Person after all income taxes paid by such Person during such
period plus, but only to the extent such items shall have been deducted in
determining such net income, depreciation and amortization of assets, minus
all Capital Expenditures incurred by such Person during such period; as to
all of the foregoing, as determined in accordance with GAAP, consistently
applied.
-2-
Total Commitment: the aggregate obligation of the
Banks to make Loans hereunder not exceeding Thirty-Five Million Five
Hundred Thousand ($35,500,000) Dollars, as the same shall and/or may be
reduced from time to time pursuant to Article 2 hereof."
1.3.3 Article 2 of the Loan Agreement (Commitment;
Loans; Guaranties) is amended in the following respects:
(a) Subsection 2.4(a) of the Loan Agreement (Notes)
is deleted in its entirety and the following is substituted therefor:
"Section 2.4 Notes.
(a) The Loans made by each Bank shall be evidenced by
a single promissory note of the Borrower in substantially the form of
Exhibit A hereto as amended by an allonge to note in the form of Exhibit A
to Amendment No. 1 (each, as so amended, a 'Note' and collectively, the
'Notes'). Each Note shall be dated the date of the initial borrowing of the
Loans under this Agreement, shall be payable to the order of such Bank in a
principal amount equal to such Bank's Commitment as in effect on the
effective date of Amendment No. 1, and shall otherwise be duly completed.
The Notes shall be payable as provided in Sections 2.1 and 2.5 hereof."
(b) Section 2.7(a) of the Loan Agreement (Fees) is
deleted in its entirety and the following is substituted therefor:
"Section 2.7 Fees.
(a) The Borrower shall pay to the Banks pro rata
according to their respective Commitments, a commitment fee (the
'Commitment Fee') as follows:
(i) simultaneously with the execution and delivery of
Amendment No. 1, an amount equal to the product of: (A) $83.33
[representing 3/8 of 1% of $8,000,000, divided by 360], multiplied by (B)
the number of days during the period commencing on the effective date of
Amendment No. 1 and ending on May 14, 1997; and
(ii) on each of May 14, 1997 and May 14, 1998 or, if
earlier, on the date the Commitments are terminated, $133,125.
1.3.4 Article 6 of the Loan Agreement
(Affirmative Covenants) is amended by adding a new Section 6.13 thereto as
follows:
-3-
"Section 6.13 Notice of Additional Indebtedness.
Subject to compliance with Section 7.1
hereof, use its best efforts to notify the Banks in writing, not less than
fifteen (15) days prior to the incurrence thereof (but in any event, shall
notify the Banks in writing not less than five (5) days prior to the incurrence
thereof), of any Indebtedness for borrowed money from an institutional lender
proposed to be incurred by the Borrower (including, without limitation any
extension or renewal of any Debt Instrument to which the Borrower was or is then
a party)."
1.3.5 Schedule 3 (Cash Flow) to Exhibit C (No
Default Certificate) to the Loan Agreement is deleted in its entirety and a new
schedule, in the form attached hereto as Schedule 3, is substituted therefor.
1.4 Allonges to Notes. In order to evidence the increase in
the Commitments, the Borrower shall, simultaneously with the execution and
delivery of this First Amendment, execute and deliver to each Bank an allonge to
such Bank's Note in the form of Exhibit A annexed hereto (each, an "Allonge" and
together, the "Allonges").
Article 2. Confirmation.
In order to induce the Banks to enter into this First Amendment and to
increase the Commitments, each of the Guarantors hereby acknowledges and
confirms that: (a) the guarantee by each of them of the due payment and
performance by the Borrower of all the indebtedness, liabilities and obligations
of the Borrower to the Banks shall be deemed to include all of the indebtedness,
liabilities and obligations of the Borrower to the Banks arising under this
First Amendment and the Notes as amended by the Allonges, and (b) the term
"Guaranteed Obligations", as used in the Guaranties (or any other term used
therein to describe or refer to the indebtedness, liabilities, and obligations
of the Borrower to the Banks) includes, without limitation, all of the
indebtedness, liabilities and obligations of the Borrower to the Banks arising
under this First Amendment and the Notes as amended by the Allonges.
Article 3. References in the Loan Documents.
The Borrower hereby acknowledges and confirms to, and agrees
with, the Banks that all references in the Loan Agreement as amended hereby, the
Notes as amended by the Allonges, the Guaranties, and all other documents
executed and delivered in connection therewith, including all amendments,
modifications and supplements thereto, to:
-4-
(a) the "Loan Agreement" or "this Agreement" (to the extent
such term refers to the Loan Agreement) shall be deemed to refer to the Loan
Agreement as amended hereby and as hereafter amended, modified and/or
supplemented;
(b) the "Loan Documents" shall be deemed to refer to this
First Amendment, the Loan Agreement as amended hereby, the Allonges, the Notes
as amended by the Allonges, the Guaranties as acknowledged and confirmed hereby,
and all other agreements, instruments and documents relating to the transactions
covered by the Loan Agreement as amended hereby;
(c) the "Commitments" shall be deemed to refer to the
Commitments as increased by this First Amendment;
(d) a "Note" or the "Notes" shall be deemed to refer
to a Note or the Notes, each as amended by its respective
Allonge; and
(g) the "Guaranties" shall be deemed to refer to the
Guaranties as acknowledged and confirmed hereby.
Article 4. Representation and Warranties.
The Borrower hereby represents and warrants to the Banks that:
4.1 Article 3 of Loan Agreement; No Defaults.
4.1.1 Each and every one of the representations
and warranties set forth in Article 3 of the Loan Agreement is true in all
respects as of the date hereof, except for changes which, either singly or in
the aggregate, are not materially adverse to the business or financial condition
of the Borrower and the Corporate Guarantors, taken as a whole.
4.1.2 As of the date hereof, there exists no
Event of Default under the Loan Agreement, and no event which, with the giving
of notice or lapse of time or both, would constitute such an Event of Default.
4.2 Power, Authority, Consents. The Borrower and each
Guarantor has the power to execute, deliver and perform this First Amendment and
the Borrower has the power to execute, deliver and perform the Allonges. The
Borrower has the power to borrow under the Loan Agreement as amended hereby and
has taken all necessary corporate action to authorize the borrowing under the
Loan Agreement as amended hereby on the terms and conditions thereof. The
Borrower and each Guarantor has taken all necessary action, corporate or
otherwise, to authorize the execution, delivery and performance of this First
Amendment and the Allonges, as applicable. Other than due authorization by the
-5-
Board of Directors of the Borrower and of each corporate Guarantor, each of
which has been duly obtained, no consent or approval of any Person (including,
without limitation, any stockholder of the Borrower or any Guarantor), no
consent or approval of any landlord or mortgagee, no waiver of any Lien or right
of distraint or other similar right and no consent, license, approval,
authorization or declaration of any governmental authority, bureau or agency,
is or will be required in connection with the execution, delivery or performance
by the Borrower or any Guarantor, or the validity, enforcement or priority, of
this First Amendment and the Allonges, as applicable.
4.3 No Violation of Law or Agreements. The execution and
delivery by the Borrower and each Guarantor of this First Amendment and the
Allonges, as applicable, and performance by each of them hereunder and
thereunder, will not violate any provision of law and will not conflict with or
result in a breach of any order, writ, injunction, ordinance, resolution,
decree, or other similar document or instrument of any court or governmental
authority, bureau or agency, domestic or foreign, or any certificate of
incorporation or by-laws of the Borrower or any Guarantor, or create (with or
without the giving of notice or lapse of time, or both) a default under or
breach of any agreement, bond, note or indenture to which the Borrower or any
Guarantor is a party, or by which any of them is bound or any of their
respective properties or assets is affected, or result in the imposition of any
Lien of any nature whatsoever upon any of the properties or assets owned by or
used in connection with the business of the Borrower or any Guarantor.
4.4 Due Execution, Validity, Enforceability. Each of
this First Amendment and the Allonges has been duly executed and
delivered by the Borrower and/or each Guarantor, as applicable,
and each constitutes the valid and legally binding obligation of
the Borrower or such Guarantor, as applicable, enforceable in
accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws, now or hereafter in effect,
relating to or affecting the enforcement of creditors' rights
generally and except that the remedy of specific performance and
other equitable remedies are subject to judicial discretion.
Article 5. Conditions Precedent to the
Effectiveness of this First Amendment.
The effectiveness of this First Amendment and the obligation
of the Banks to increase the Commitments shall be subject to the fulfillment (to
the satisfaction of the Banks) of the following conditions precedent:
-6-
5.1 First Amendment. The Borrower shall have
executed and delivered to the Banks this First Amendment.
5.2 Allonges. The Borrower shall have executed and
delivered to each Bank its Allonge.
5.3 Guarantors. Each of the Guarantors shall have executed and
delivered to the Banks this First Amendment and shall have duly complied with
all of the terms and conditions hereof.
5.4 Commitment Fee. The Banks shall have received the
Commitment Fee referred to in Subsection 2.7(a)(i) of the Loan
Agreement as amended hereby.
5.5 Corporate Action. The Banks shall have received true and
complete copies of all action, corporate or otherwise, taken by the Borrower and
each Guarantor to authorize the execution, delivery and performance of this
First Amendment and the Allonges, as applicable, certified by its respective
secretary.
5.6 Compliance.
5.6.1 The Borrower shall have complied and shall
then be in compliance with all of the terms, covenants and
conditions of this First Amendment and the Loan Agreement as
amended hereby;
5.6.2 There shall exist no Default or Event of
Default under the Loan Agreement as amended hereby; and
5.6.3 The representations and warranties
contained in Article 3 hereof shall be true and correct on the
date hereof;
and the Banks shall have received a Compliance Certificate dated the date hereof
certifying, inter alia, that the conditions set forth in this Section 5.6 are
satisfied on such date.
5.7 Legal Matters. All legal matters incident hereto
shall be satisfactory to counsel to the Banks.
Article 6. Miscellaneous.
6.1 Full Force and Effect. Except as specifically
amended herein, the Loan Agreement and each of the other Loan
Documents shall remain in full force and effect in accordance
with its terms.
6.2 Miscellaneous. The miscellaneous provisions
under Article 9 of the Loan Agreement as amended hereby, together
-7-
with the definitions of all terms used therein, and all other sections of the
Loan Agreement as amended hereby to which Article 9 refers are hereby
incorporated herein by reference as if the provisions thereof were set forth in
full herein, except that: (i) the term "Loan Agreement" shall be deemed to refer
to the Loan Agreement as amended hereby; (ii) the term "Notes" shall be deemed
to refer to the Notes as amended by the Allonges; (iii) the term "this Loan
Agreement" shall be deemed to refer to this First Amendment; and (iv) the terms
"hereunder" and "hereto" shall be deemed to refer to this First Amendment. This
First Amendment together with the Loan Agreement and the other Loan Documents
embody the entire agreement and understanding among the Banks, the Borrower, and
each of the Guarantors and supersedes all prior agreements and understandings
relating to the subject matter hereof.
6.3 Counterparts. This First Amendment may be signed in any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument.
[SIGNATURE PAGES TO FOLLOW]
-8-
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed on the date first above written.
XXXXXX XXXXXX INTERNATIONAL INC.
By_____________________________
Title
Agreed to and Accepted
and Acknowledged as
to Article 3 hereof:
XXXXXX XXXXXX EUROPE INC.
By__________________________
Title
XXXXXX XXXXXX GHANA LTD.
By__________________________
Title
XXXXXX XXXXXX BELGIUM, N.V.
By__________________________
Title
SUPREME GEMS N.V.
By__________________________
Title
-9-
Commitment:
$21,300,000 FLEET BANK, N.A.
By_______________________________
Xxxxx X. Xxxxxxx,
Vice President
Lending Office for Prime Rate
Loans, LIBOR Loans and Designated
Rate Loans:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Vice President
Address for Notices:
Fleet Bank, N.A.
1133 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Vice President
Telex: 232369
Answer-Back Code: NBNA UR
Telecopier: (000) 000-0000
-10-
Commitment:
$ 14,200,000 BANK LEUMI TRUST COMPANY OF
NEW YORK
By_____________________________
Xxxx Xxxxxxx
Senior Vice President
By_____________________________
Title
Lending Office for Prime Rate
Loans; LIBOR Loans and Designated
Rate Loans:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Senior Vice President
Address for Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Senior Vice President
Telecopier: (000) 000-0000
-11-
EXHIBIT A TO
AMENDMENT NO. 1 TO LOAN AGREEMENT
BY AND AMONG
XXXXXX XXXXXX INTERNATIONAL INC.,
FLEET BANK, N.A. AND
BANK LEUMI TRUST COMPANY OF NEW YORK
FORM OF ALLONGE
The undersigned, XXXXXX XXXXXX INTERNATIONAL INC. (the "Borrower") and
______________________ (the "Bank"), hereby amend the Note dated May 14, 1996
made by the Borrower payable to the order of the Bank in the original principal
amount of $_____________ (the "Original Note") by deleting the heading thereof
and the first paragraph set forth therein and substituting the following
therefor:
"$____________ New York, New York
May 14, 1996
FOR VALUE RECEIVED, the undersigned XXXXXX XXXXXX INTERNATIONAL INC., a
Delaware corporation (the 'Borrower'), hereby promises to pay to the order of
____________________ ______________________ (the 'Bank') on the Maturity Date
(as defined in the Loan Agreement dated the date hereof between the Borrower,
___________________________ and the Bank (as such Loan Agreement may be amended,
modified or supplemented, the 'Loan Agreement')), the lesser of (i) the
principal sum of __________________________ Dollars ($____________), or (ii) the
aggregate unpaid principal amount of the Loans (as defined in the Loan
Agreement) made by the Bank to the Borrower pursuant to the Loan Agreement, and
to pay interest on the unpaid principal amount of each Loan from the date
thereof at the rates per annum and for the periods set forth in or established
by the Loan Agreement and calculated as provided therein."
The Original Note shall be deemed amended by this Allonge and a copy of
this Allonge shall be attached to the Original Note. The amendment evidenced by
this Allonge shall be effective November 29, 1996.
Except as expressly amended by this Allonge, all terms and conditions
of the Original Note shall continue in full force and effect.
XXXXXX XXXXXX INTERNATIONAL INC.
By______________________________
Title
Accepted and Agreed to:
[BANK]
By_________________________
Title
[By________________________
Title]
-2-
SCHEDULE 3 TO
AMENDMENT NO. 1 TO LOAN AGREEMENT
BY AND AMONG
XXXXXX XXXXXX INTERNATIONAL INC.,
FLEET BANK, N.A. AND
BANK LEUMI TRUST COMPANY OF NEW YORK
SCHEDULE 3
TO FORM OF NO DEFAULT CERTIFICATE
ANNUAL CASH FLOW
Date: _____________
Period: Four consecutive fiscal quarters ending ___________
Net Income $__________________
(ADD) + Depreciation $__________________
+ Amortization $__________________
(SUBTRACT) - Capital Expenditures $__________________
Incurred
(EQUALS) = Annual Cash Flow $__________________
Required Amount $__________________
Compliance (Y/N): _____________
