AMENDMENT NO. 1
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 dated as of August 7, 2008 (this “Amendment”)
with
respect to the Credit Agreement, dated as of September 30, 2007 (the
“Credit
Agreement”)
by and
between Xxxxxx Xxxxxx International Inc. (“Borrower”)
and
Bank Leumi USA (the “Bank”).
WITNESSETH:
WHEREAS,
pursuant to the Credit Agreement, the Bank has made Loans and other financial
accommodations to the Borrower which remain outstanding; and
WHEREAS,
the Borrower has requested that the Credit Agreement be modified on the terms
and conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
I
AMENDMENTS
Section
1.1 Amendments.
(a) Section
1
of the Credit Agreement is hereby amended by adding the following
definitions:
“NamGem
Belgium” means NamGem Trading BVBA, a company organized and existing under the
laws of the Kingdom of Belgium and a Subsidiary of the Borrower.
“NamGem
BVI” means NamGem Trading BVI Limited, a company limited by shares organized and
existing under the laws of the British Virgin Islands and a Subsidiary of the
Borrower.
“OPIC”
means the Overseas Private Investment Corporation, an agency of the United
States of America.
“OPIC
Financing Agreement” means that certain First Amended and Restated Finance
Agreement between OPIC and NamGem BVI dated as of June 10, 2008, as the same
may
be amended, modified or supplemented from time to time.”
(b) The
definition of “Total Funded Debt” in Section 1 of the Credit Agreement is hereby
deleted in its entirety and replaced as follows:
“Total
Funded Debt: At any time the same is to be determined, the aggregate of all
Indebtedness of the Borrower and its Subsidiaries at such time, including all
Indebtedness of any other Person which is directly or indirectly guaranteed
by
the Borrower (other than amounts guaranteed by Borrower in respect of the
Gulfdiam Obligation, the Nedbank Loan and up to $25,200,000 in Indebtedness
of
the Borrower and/or any Subsidiary thereof to OPIC and the obligations of
Borrower and NamGem Belgium with respect to the transactions contemplated by
the
OPIC Financing Agreement evidencing such Indebtedness) or any of its
Subsidiaries or which the Borrower or any of its Subsidiaries has agreed
(contingently or otherwise) to purchase or otherwise acquire or in respect
of
which the Borrower or any of its Subsidiaries has otherwise assured a creditor
against loss.”
(c) Section
8.2(a) of the Credit Agreement is hereby amended by deleting the term “and”
appearing immediately prior to clause (x) and adding a new clause (xi) as
follows:
“and
(xi)
up to $25,200,000 in Indebtedness of the Borrower and/or any Subsidiary thereof
to OPIC and the obligations of Borrower and NamGem Belgium with respect to
the
transactions contemplated by the OPIC Financing Agreement evidencing such
Indebtedness.”
(d) Section
8.2(b) of the Credit Agreement is hereby amended by deleting the term “and”
appearing immediately prior to clause (vi) and adding a new clause (vii) as
follows:
“and
(vii) Liens granted by Subsidiaries of the Borrower on the property and capital
stock of such Subsidiaries to secure Indebtedness permitted by Section
8.2(a)(xi) above.”
(e) Section
8.2(c) clause (vi) of the Credit Agreement is hereby amended by adding the
following proviso at the end of such clause as follows:
“;
provided further that such limitation shall not apply to investments by the
Borrower and its Subsidiaries in an aggregate amount of up to $10,800,000 in
NamGem BVI.”
(f) Section
8.3 of the Credit Agreement is hereby amended by adding the following proviso
at
the end of such Section as follows:
“;
provided, that, for the purpose of calculating compliance with any subsection
of
this Section 8.3 for any period, Borrower’s investment in NamGem BVI and NamGem
Belgium shall be accounted for using the equity method of
accounting.”
ARTICLE
II
EFFECTIVE
DATE
Section
2.1 Effective
Date.
This
Amendment shall become effective upon the satisfaction of the following
conditions precedent:
(a) the
Borrower and the Bank shall have executed and delivered this Amendment;
(b) Xxxxxx
Xxxxxx Europe Inc., Xxxxxx Xxxxxx Japan Inc. and Xxxxxx Xxxxxx Africa Inc.
shall
have executed and delivered to the Bank their consent to this Amendment in
the
form set forth below; and
(c) all
of
the representations and warranties set forth in Section 6 of the Credit
Agreement shall be true and correct in all material respects with the same
effect as if made on and as of the date hereof (or if any such representation
or
warranty is expressly stated to have been made as of a specific date, as of
such
date) and the Borrower shall be in compliance with the terms and conditions
of
the Credit Agreement and, after giving effect to this Amendment, no Default
or
Event of Default has occurred under the Credit Agreement.
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ARTICLE
III
INTERPRETATION
Section
3.1. Continuing
Effect of the Credit Agreement.
The
Borrower and the Bank hereby acknowledge and agree that the Credit Agreement
shall continue to be and shall remain unchanged and in full force and effect
in
accordance with its terms, except as expressly modified hereby.
Section
3.2. No
Waiver.
Nothing
contained in this Amendment be construed or interpreted or is intended as a
waiver of any future Default or Event of Default or of any rights, powers,
privileges or remedies that the Bank have or may have under the Credit
Agreement, any other related document or applicable law on account of such
Default or Event of Default.
ARTICLE
IV
MISCELLANEOUS
Section
4.1. Representations
and Warranties.
The
Borrower hereby represents and warrants as of the date hereof that, after giving
effect to this Amendment, (a) no Default or Event of Default has occurred and
is
continuing and (b) all representations and warranties of the Borrower contained
in the Credit Agreement are true and correct in all material respects with
the
same effect as if made on and as of such date (or if any such representation
or
warranty is expressly stated to have been made as of a specific date, as of
such
date).
Section
4.2. Counterparts.
This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
Section
4.3. GOVERNING
LAW.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS THEREOF.
Section
4.4. Reservation
of Rights.
Notwithstanding anything contained in this Amendment, the Borrower acknowledges
that the Bank does not waive, and expressly reserves, the right to exercise,
at
any time, any and all of its rights and remedies under the Credit Agreement,
any
other related document and applicable law on account of any future Default
or
Event of Default.
[Signature
Page to Follow]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date first above written.
By:
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Title:
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BANK
LEUMI USA
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By:
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Title:
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By:
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Guarantor’s
Acknowledgement and Consent
Each
of
the undersigned heretofore executed and delivered to the Bank a Guaranty dated
September 30, 2007. 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.
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By
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Name
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Title
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Xxxxxx
Xxxxxx Japan Inc.
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By
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Name
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Title
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Xxxxxx
Xxxxxx Africa Inc.
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By
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Name
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Title
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