SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
the 30th day of September, 1996, by and among Xxxxxxx Australia, Inc., a
Delaware corporation (the "Borrower"), The Toronto-Dominion Bank, Nations Bank
of Texas, N.A. (collectively herein referred to as the "Lenders"), and Toronto
Dominion (Texas), Inc., in its capacity as administrative agent for the Lenders
(the "Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, and the Lenders are
parties to that certain Credit Agreement dated as of February 29, 1996, as
amended by that certain First Amendment to Credit Agreement dated as of August
29, 1996 (the "Credit Agreement"); and
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
agreed to amend the Credit Agreement as set forth herein;
NOW THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement, and further agree as follows:
1. Amendment to Article 1. Article 1 of the Credit Agreement,
Definitions, is hereby amended by deleting the existing definition of "Maturity
Date" set forth therein and substituting the following therefor:
"Maturity Date" shall mean the earlier to occur of (a) October
31, 1996 or (b) such earlier date as payment of the Loans shall be due (whether
by acceleration or otherwise)."
2. No Other Amendment or Waiver. Notwithstanding the agreement of the
Administrative Agent and the Lenders to the terms and provisions of this
Amendment, the Borrower acknowledges and expressly agrees that this Amendment is
limited to the extent expressly set forth herein and shall not constitute a
modification of the Credit Agreement or a course of dealing at variance with the
terms of the Credit Agreement (other than as expressly set forth above) so as to
require further notice by the Administrative Agent or the Lenders, or any of
them, of its or their intent to require strict adherence to the terms of the
Credit Agreement in the future. All of the terms, conditions, provisions and
covenants of the Credit Agreement and the other Loan Documents shall remain
unaltered and in full force and effect except as expressly modified by this
Amendment.
3. Representations and Warranties. The Borrower hereby represents and
warrants in favor of the Administrative Agent and each Lender, as follows:
(i) Each representation and warranty set forth in Article 4 of
the Credit Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent previously
fulfilled in accordance with the terms of the Credit Agreement, as amended
hereby, and to the extent relating specifically to the Agreement Date or
otherwise inapplicable;
(ii) The Borrower has the corporate power and authority to
enter into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(iii) This Amendment has been duly authorized, validly
executed and delivered by Authorized Signatories, and constitutes the legal,
valid and binding obligation of the Borrower enforceable against it in
accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an injunction
are discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law, and (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower); and
(iv) The execution and delivery of this Amendment and the
Borrower's performance hereunder do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict with
the certificate of incorporation or the by-laws of the Borrower, or the
provision of any statute, judgment, order, indenture, instrument, agreement, or
undertaking to which the Borrower is party or by which the Borrower's assets or
properties are or may become bound.
4. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to the following:
(i) the truth and accuracy of the representations and
warranties contained in Section 3 hereof;
(ii) receipt by each of the Lenders of an amendment fee in the
amount of $25,000, which fee shall be fully earned when due and non-refundable
when paid; and
(iii) receipt by the Administrative Agent of such documents as
the Administrative Agent shall reasonably request.
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5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
6. Loan Documents. Each reference in the Credit Agreement or any other
Loan Document to the term "Credit Agreement" shall hereafter mean and refer to
the Credit Agreement as amended hereby or as the same may hereafter be amended.
7. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of New York, without giving effect to any
conflict of laws principles.
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute, deliver and, in the case of
the Borrower, seal this Amendment as of the day and year first above written, to
be effective as of the day and year first above written.
BORROWER: XXXXXXX AUSTRALIA, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
[CORPORATE SEAL] Its: Executive Vice President
Attest: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Its: Assistant Secretary
--------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
------------------------------------
Its:
--------------------------
LENDERS: THE TORONTO-DOMINION BANK
By:
------------------------------------
Its:
--------------------------
NATIONS BANK OF TEXAS, N.A.
By:
------------------------------------
Its:
--------------------------
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute, deliver and, in the case of
the Borrower, seal this Amendment as of the day and year first above written, to
be effective as of the day and year first above written.
BORROWER: XXXXXXX AUSTRALIA, INC., a Delaware
corporation
[CORPORATE SEAL] By:
------------------------------------
Its:
--------------------------
Attest:
------------------------------------
Its:
---------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Its: Vice President
LENDERS: THE TORONTO-DOMINION BANK
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Its: Manager Syndications & Credit
------------------------------
Administration
------------------------------
NATIONS BANK OF TEXAS, N.A.
By:
------------------------------------
Its:
--------------------------
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IN WITNESS WHEREOF, the parties hereto cause their respective duly
authorized officers or representatives to execute, deliver and, in the case of
the Borrower, seal this Amendment as of the day and year first above written, to
be effective as of the day and year first above written.
BORROWER: XXXXXXX AUSTRALIA,.INC., a Delaware
corporation
[CORPORATE SEAL] By:
------------------------------------
Its:
--------------------------
Attest:
---------------------------------
Its:
--------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
------------------------------------
Its:
--------------------------
LENDERS: THE TORONTO-DOMINION BANK
By:
------------------------------------
Its:
--------------------------
NATIONS BANK OF TEXAS, N.A.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Its: Vice President
--------------------------
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