EXHIBIT 10.34
SECOND AMENDMENT
TO
CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
effective for all purposes as of the __th day of December, 1995, by and between
Bank of America Texas, N.A. (the "Bank") and Xxxxxxx International, Inc.,
formerly known as Xxxxxxx Graphics Corporation, a Delaware corporation (the
"Borrower").
REFERENCES:
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Reference is made to the Credit Agreement (as amended, the "Credit
Agreement") dated as of May 16, 1995 by and between Bank and Borrower, as by
amended First Amendment to Credit Agreement dated as of August 15, 1995 by and
between Bank and Borrower.
RECITALS:
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Borrower has requested that the Bank amend certain of the covenants of the
Credit Agreement; specifically,
(1) to increase the limitation on Borrower's dispositions of assets
during Borrower's 1995 fiscal year from $500,000 to $585,000; and
(2) to increase the limitation on Borrower's capital expenditures
during Borrower's 1995 fiscal year from $5,000,000 to $5,500,000
Subject to the terms and conditions set forth below, Bank has agreed to
amend the Credit Agreement.
AGREEMENTS:
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECOND AMENDMENT-Page 1
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ARTICLE I
Definitions
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1.1 Capitalized terms used in this Amendment are defined in the Credit
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
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2.1 Asset Dispositions. Section 8.18(d) of the Credit Agreement is hereby
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amended and restated to read as follows:
"(d) lease or dispose of all or a substantial part of the Borrower's
business or assets, except for leases or dispositions of assets having a
fair market value in an aggregate amount not exceeding:
(1) Five Hundred Eighty-Five Thousand Dollars ($585,000) in
Borrower's 1995 fiscal year, and
(2) Five Hundred Thousand Dollars ($500,000) in any fiscal year
thereafter,
(in which events the Bank will agree to release its lien on such assets,
and the Borrower may retain the proceeds of such lease or disposition, so
long as no Event of Default has occurred and is continuing);"
2.2 Capital Expenditures. Section 9.4, Capital Expenditures, of the Credit
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Agreement is hereby amended and restated to read as follows:
9.4 Capital Expenditures. Not to spend or incur obligations
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(including the total amount of any capital leases) to acquire fixed or
capital assets for more than:
(1) Five Million Five Hundred Thousand Dollars ($5,500,000) in
Borrower's 1995 fiscal year, and
(2) Five Million Dollars ($5,000,000) in any fiscal year
thereafter.
For purposes of this Section 9.4, capital expenditures shall not include
amounts spent or obligations incurred in connection with the purchase of
certain assets of Societe Specialisee dans le Materiel d'Imprimerie
Offset.
SECOND AMENDMENT--Page 2
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ARTICLE III
Conditions
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3.1 Conditions to Amendment. The effectiveness of his Amendment is
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conditioned upon and subject to the satisfaction of the following requirements:
(a) The Guarantors shall have consented to this Amendment and
ratified their Guaranties; and
(b) The Borrower shall have paid an amendment fee in the amount of
Two Thousand Five Hundred Dollars ($2,500.00) on or before January 5, 1996.
ARTICLE IV
No Waiver
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4.1 Except as otherwise specifically provided for in this Amendment,
nothing contained herein shall be construed as a waiver by the Bank of any
covenant or provision of this Amendment, or of any other contract or instrument
between Borrower and the Bank; and the Bank's failure at any time or times
hereafter to require strict performance by Borrower of any provision thereof
shall not waive, affect or diminish any right of the Bank to thereafter demand
strict compliance therewith. The Bank hereby reserves all rights granted under
the Credit Agreement, as amended, and any other contract or instrument between
Borrower and the Bank.
ARTICLE V
Ratifications, Representations and Warranties
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5.1 Ratifications. The terms and provisions set forth in this Amendment
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shall modify and supersede all inconsistent terms and provisions set forth in
the Credit Agreement, and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Credit Agreement are ratified and
confirmed and shall continue in full force and effect. Borrower and the Bank
agree that the Credit Agreement, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with its terms.
5.2 Representations and Warranties of Borrower. Borrower hereby
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represents and warrants to the Bank that (a) the execution, delivery and
performance of this Amendment have been authorized by all requisite corporate
action on the part of Borrower and will not violate the certificate of
incorporation or bylaws of Borrower; and (b) Borrower is in full compliance with
all covenants and agreements contained in the Credit Agreement, as amended
hereby.
SECOND AMENDMENT-Page 3
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ARTICLE VI
Miscellaneous Provisions
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6.1 Amendment Fee. Subject to the provisions of Section 12.14 of the
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Credit Agreement, in consideration of the Bank agreeing to amend the terms of
the Credit Agreement, as set forth above, the Borrower will pay the Bank a Two
Thousand Five Hundred Dollar ($2,500) fee for such amendment, as provided by
Section 3.1(d) of the Credit Agreement and by Section 3.1(b) of this Amendment.
6.2 Severability. Any provision of this Amendment held by a court of
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competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.3 Binding Effect. This Amendment shall be binding upon Borrower and
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the Bank and their respective successors and assigns.
6.4 Counterparts. This Amendment may be executed in one or more
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counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.5 Effect of Waiver. No consent or waiver, express or implied, by the
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Bank to or for any breach of or deviation from any covenant or condition by
Borrower shall be deemed a consent to or waiver of any other breach of the same
or any other covenant, condition or duty.
6.6 Headings. The headings, captions, and arrangements used in this
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Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.7 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
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PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.8 Final Agreement. THE CREDIT AGREEMENT, AS AMENDED HEREBY, REPRESENTS
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THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT, AS AMENDED HEREBY,
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES, THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
SECOND AMENDMENT-Page 4
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PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY
PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED
BY BORROWER AND THE BANK.
This Amendment is executed as of the date stated at the top of the first
page.
Bank of America Texas,X.X. Xxxxxxx International, Inc.
formerly known as
Xxxxxxx Graphics Corporation
By By /s/ W. Xxxxx Xxxxxx
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Xxxxxx X. Xxxxxxx Name W. Xxxxx Xxxxxx
Vice President ------------------
Title Treasurer
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SECOND AMENDMENT-Page 5
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CONSENT AND RATIFICATION
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The undersigned, Xxxxxxxx-Xxxxxxx Group, Inc., PMC Liquidation, Inc.,
Zerand-Xxxxxx Group, Inc., Printing & Packaging Equipment Finance Corporation
and Xxxxxxx Securities Systems International, Inc. (together and individually,
the "Guarantors") have executed a Business Loan Continuing Guaranty, dated May
16, 1995 ("Guaranty"), in favor of Bank of America Texas, N.A., a national
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banking association ("Bank"), covering obligations of Xxxxxxx Graphics
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Corporation (presently known as Xxxxxxx International, Inc.).
The Guarantors hereby consent and agree to the terms of the Second
Amendment to Credit Agreement dated to be effective as of December __, 1995 (the
"Amendment") executed by Xxxxxxx International, Inc., formerly known as Xxxxxxx
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Graphics Corporation, a Delaware corporation (the "Borrower"), and Bank. The
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Guarantors agree that the Guaranty shall remain in full force and effect and
shall continue to be the legal, valid and binding obligation of the Guarantors
enforceable against Guarantors in accordance with its terms.
Furthermore, the Guarantors hereby agree and acknowledge that (a) the
obligations, indebtedness and liabilities arising in connection with the
Amendment constitute "Debt," as such term is defined in the Guaranty, (b) as of
the date hereof, the Guaranty is not subject to any claims, defenses or offsets,
(c) nothing contained in the Amendment shall adversely affect any right or
remedy of Bank under the Guaranty, and (d) the execution and delivery of the
Amendment shall in no way reduce, impair or discharge any obligations of the
Guarantors pursuant to the Guaranty.
GUARANTORS.
XXXXXXXX-XXXXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxxx
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Title: Treasurer
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PMC LIQUIDATION, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxxx
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Title: Treasurer
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CONSENT AND RATIFICATION-Page 1
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ZERAND-XXXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: XXXXXX X. XXXXXXXXXXXXX
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Title: TREASURER
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PRINTING & PACKAGING EQUIPMENT
FINANCE CORPORATION
By: /s/ W. Xxxxx XxXxxx
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Name: W. XXXXX XXXXXX
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Title: VICE-PRESIDENT
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XXXXXXX SECURITIES SYSTEMS
INTERNATIONAL, INC.
By: /s/ W. Xxxxx XxXxxx
---------------------------------
Name: W. XXXXX XXXXXX
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Title: VICE-PRESIDENT
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CONSENT AND RATIFICATION-Page 2
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December 1995
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Date of Notice
NOTICE OF FINAL AGREEMENT
To: Borrower and All Other Obligors with Respect to the Loan Which is
Identified below:
1. THE WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
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PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
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OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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2. As used in this Notice:
"Borrower" means the Borrower identified in the signature blocks below in
this Notice.
"Lender" means Bank of America Texas, N.A.
"Loan" means the loan by Lender which is evidenced by the Second Amended
and Restated Master Note: Reference Rate Related or other evidence of
indebtedness dated August 15, 1995 (the "Note") executed by Borrower,
payable to the order of Lender, in the principal face amount of
$27,000,000.00.
"Loan Agreement" means one or more promises, promissory notes, agreements,
undertakings, security agreements, deeds of trust or other documents, or
commitments, or any combination of those actions or documents, relating to
the Loan, including, without limitation, the Credit Agreement dated May 16,
1995, as amended by the First Amendment to Credit Agreement dated August
15, 1995, as further amended by the Second Amendment to Credit Agreement
dated December __, 1995.
3. This Notice is given by Lender with respect to the Loan, pursuant to
Section 26.02 of the Texas Business and Commerce Code. Borrower and each
other obligor with respect to the Loan who signs below acknowledges,
represents and warrants to Lender that Lender has given and such party has
received and retained a copy of this Notice on the Date of this Notice
stated above.
NOTICE OF FINAL AGREEMENT--Page 1
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EXECUTED as of the date first above stated.
LENDER
Bank of America Texas, N.A.
By:
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Xxxxxx X. Xxxxxxx
Vice President
BORROWER
Xxxxxxx International, Inc.
formerly known as Xxxxxxx
Graphics Corporation
By: /s/ W. Xxxxx XxXxxx
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Name: W. XXXXX XXXXXX
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Title: TREASURER
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GUARANTORS
Xxxxxxxx-Xxxxxxx Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: XXXXXX X. XXXXXXXXXXXXX
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Title: TREASURER
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NOTICE OF FINAL AGREEMENT-Page 2
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PMC Liquidation, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: XXXXXX X. XXXXXXXXXXXXX
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Title: TREASURER
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Zerand-Xxxxxx Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
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Name: XXXXXX X. XXXXXXXXXXXXX
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Title: TREASURER
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Printing & Packaging Equipment
Finance Corporation
By: /s/ W. Xxxxx XxXxxx
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Name: W. XXXXX XXXXXX
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Title: VICE PRESIDENT
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Xxxxxxx Securities Systems
International, Inc.
By: /s/ W. Xxxxx XxXxxx
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Name: W. XXXXX XXXXXX
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Title: VICE PRESIDENT
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NOTICE OF FINAL AGREEMENT-PAGE 3
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