AMENDMENT NO. 2 TO THE LETTER OF CREDIT,
REIMBURSEMENT AND GUARANTY AGREEMENT
THIS AMENDMENT NO. 2 TO THE LETTER OF CREDIT, REIMBURSEMENT AND GUARANTY
AGREEMENT, dated as of October 1, 1996, by and among XXXXXX ENGINEERING COMPANY,
INC., a Delaware corporation (the "Borrower"), XXXXX INDUSTRIES, INC., a
Delaware corporation (the "Guarantor") and FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association organized and existing under the laws
of the United States with its principal offices located in Charlotte, North
Carolina (the "Bank");
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantor and the Bank have previously entered
into the Letter of Credit, Reimbursement and Guaranty Agreement, dated as of
June 1, 1994, as amended by Amendment No. 1 to the Letter of Credit,
Reimbursement and Guaranty Agreement, dated as of August 1, 1996 (collectively,
the "Agreement"), pursuant to which the Bank has issued its irrevocable letter
of credit, dated June 17, 1994; and
WHEREAS, the Borrower, the Guarantor and the Bank now desire to amend
certain provisions of the Agreement;
NOW, THEREFORE, in consideration of the premises, mutual covenants
hereinafter contained and other good and valuable consideration, the Borrower,
the Guarantor and the Bank do hereby amend the Agreement as follows:
Section 1. Section 7.7 of the Agreement Amended. Section 7.7 of the
Agreement is hereby amended by deleting in its entirety said Section 7.7 of the
Agreement and inserting in lieu of the following:
"7.7. Current Ratio. The Guarantor will not permit the ratio of
Consolidated Current Assets to Consolidated Current Liabilities, at any
time, to be less than 2.00 to 1.00."
Section 2. Effect of Modification and Amendment of Agreement. The
Agreement shall be deemed to be modified and amended in accordance with the
provisions of this Amendment No. 2 to the Agreement and the respective rights,
duties and obligations of the Borrower, the Guarantor and the Bank under the
Agreement shall remain to be determined, exercised and enforced under the
Agreement subject in all respects to such modifications and amendments in
writing, and all the terms and conditions of this Amendment No. 2 to the
Agreement shall be part of the terms and conditions of the Agreement for any and
all purposes. All the other terms of the Agreement shall continue in full force
and effect subject to the amendments set forth herein.
Section 3. Representations and Warranties. The Borrower and the Guarantor
each represent and warrant to the Bank as follows:
(a) Representations and Warranties in Agreement. The representations and
warranties of the Borrower and the Guarantor contained in the Agreement
(i) were true and correct when made, and (ii) after giving effect to this
Amendment No. 2, continue to be true and correct on the date hereof
(except to the extent of changes resulting from transactions contemplated
or permitted by the Agreement, as amended hereby, and changes occurring in
the ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and
warranties relate expressly to an earlier date).
(b) Authority. The execution and delivery by each of the Borrower and the
Guarantor of this Amendment No. 2 and the performance by each of the
Borrower and the Guarantor of all of its respective agreements and
obligations under this Amendment No. 2 are within its corporate authority,
have been duly authorized by all necessary corporate action and do not and
will not: (i) contravene any provision of its charter documents or any
amendment thereof; (ii) conflict with, or result in a breach of any
material term, condition or provision of, or constitute a default under or
result in the creation of any mortgage, lien, pledge, charge, security
interest or other encumbrance upon any of its property under any
agreement, deed of trust, indenture, mortgage or other instruments to
which it is a party or by which any of its properties are bound including,
without limitation, any of the Other Agreements; (iii) violate or
contravene any provision of any law, statute, rule or regulation to which
the Borrower or the Guarantor is subject or any decree, order or judgment
of any court or governmental or regulatory authority, bureau, agency or
official applicable to the Borrower or the Guarantor; (iv) require any
waivers, consents or approvals by any of its creditors which have not been
obtained; or (v) require any approval, consent, order, authorization or
license by, or giving notice to, or taking any other action with respect
to, any governmental or regulatory authority or agency under any provision
of any law, except (A) those actions which have been taken or will be
taken prior to the date of execution of this Amendment No. 2 and (B)
filings with the Securities and Exchange Commission to be made on or prior
to May 15 September 30, 1996.
(c) Enforceability of Obligations. This Amendment No. 2 and the Agreement,
as amended hereby, constitute the legal, valid and binding obligations of
the Borrower and the Guarantor enforceable against the Borrower and the
Guarantor in accordance with their respective terms, provided that: (i)
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
affecting the rights and remedies of creditors; and (ii) the availability
of the remedies of specific performance and injunctive relief may be
subject to the discretion of the court before which any proceedings for
such remedies may be brought.
Section 4. Counterparts. This Amendment No. 2 to the Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Borrower, the Guarantor and the Bank have caused
this Amendment No. 2 to the Agreement to be executed in their respective names
and their respective seals to be hereunto affixed and attested by their duly
authorized representatives, all as of the date first above written.
THE BORROWER:
XXXXXX ENGINEERING COMPANY, INC.
By:__________________________________
Title:
THE GUARANTOR:
XXXXX INDUSTRIES, INC.
By:__________________________________
Title:
THE BANK:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
ATTEST: By:_______________________________
Title: _________________________
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Title:
(Corporate Seal)
