EXHIBIT 10.55
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SECOND AMENDMENT
SECOND AMENDMENT, dated as of November 10, 1995 (this
"Amendment"), to the MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT, dated as of September 30, 1994 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein as therein defined),
among XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED, the Subsidiary Borrowers and Subsidiary
Guarantors parties thereto, the Lenders parties thereto,
NATIONSBANK OF NORTH CAROLINA, N.A., as Co-Agent,
CHEMICAL SECURITIES INC., as Arranger and CHEMICAL BANK,
as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the parties to this Amendment wish to
amend the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Amendment is entered into in
accordance with the provisions of subsection 14.1 of the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises,
the parties hereto hereby agree as follows:
1. Amendment of Subsection 1.1 of the Credit
Agreement. The definition of "Termination Date" set forth in subsection
1.1 of the Credit Agreement is hereby amended by deleting the date
"September 30, 1999 and inserting in its place "September 30, 2000".
2. Amendment of Schedule II to the Credit Agreement.
(a) Addition of New Subsidiary Borrowers. (i) Each of
XXXXXX OF NORTH AMERICA, INC., XXXXXXXX AUDIO LABORATORIES,
INC., each a subsidiary of the Company, XXXXXX HOLDING GMBH,
SPIRIT BY SOUNDCRAFT, INC., each a subsidiary of Harman
Investment Company, Inc., itself a wholly owned subsidiary of the
Company, and XXXXXX GMBH, a Subsidiary of Xxxxxx Holding
GmbH (collectively, the "New Subsidiary Borrowers") by its signature
below, hereby acknowledges that it has received and reviewed a copy (in
execution form) of the Credit Agreement, and agrees, from and after the
effective date of this Amendment (the "Effective Date"), to (i) join the
Credit Agreement as a Subsidiary Borrower, (ii) be bound by all
covenants, agreements and acknowledgments attributable to a
Subsidiary Borrower in the Credit Agreement and (iii) perform all
obligations required of it by the Credit Agreement.
(ii) Each New Subsidiary Borrower hereby represents
and warrants that the representations and warranties with respect to it
contained in, or made or deemed made by it in, Section 7 of the Credit
Agreement are true and correct on the date hereof and on the Effective
Date.
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(iii) The address and jurisdiction of incorporation of each
New Subsidiary Borrower are set forth in Annex I to this Amendment.
(iv) Each of the parties hereto agrees that (X) this
Amendment shall be deemed to be a Joinder Agreement, in form and
substance satisfactory for all purposes of the Credit Agreement, and (Y)
the Administrative Agent shall be entitled to, concurrently with the
effectiveness of this Amendment, amend and replace Schedule II to the
Credit Agreement to reflect the addition of the New Subsidiary
Borrowers.
(b) Removal of Restricted Subsidiaries. Schedule II
to the Credit Agreement is further amended by deleting references to
"XXXXXX X.X. ASIA PTE., LTD.," as a Subsidiary Borrower, and
"QUESTED MONITORING SYSTEMS LIMITED," as a Restricted
Subsidiary. Each of the parties hereto agrees that from and after the
Effective Date, Xxxxxx X.X. Asia Pte., Ltd. and Quested Monitoring
Systems Limited shall no longer be bound by the covenants, agreements
or acknowledgments pertaining to a Subsidiary Borrower or a Restricted
Subsidiary in the Credit Agreement.
3. Amendment of Subsection 3.2(b) of the Credit
Agreement. Subsection 3.2(b) of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting in its place the
following:
"Each Lender that makes a Competitive Advance Loan
shall deliver a Notice of Competitive Advance Loan to the
Administrative Agent on the Thursday (or, if such Thursday
is not a Business Day, on the next Business Day following
such Thursday) immediately following the making of such
Competitive Advance Loan."
4. Amendment of Subsection 4.1 of the Credit Agreement.
(a) Subsection 4.1 of the Credit Agreement is amended
by inserting the following additional proviso at the end of the first
sentence of such subsection:
"and provided further, that notwithstanding the foregoing
restrictions, Swing Line Loans to any Borrower incorporated
under the laws of France, Germany or the United Kingdom
may exceed the amounts specified by the foregoing clause (ii)
so long as the aggregate Dollar Equivalent Amount of the
outstanding principal amount of all Swing Line Loans of all
Borrowers incorporated in such country does not exceed
$2,000,000 multiplied by the number of Swing Line Borrowers
in such country."
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5. Amendment of Schedule I to the Credit Agreement.
Schedule I to the Credit Agreement is hereby amended by replacing
it in its entirety with the text set forth in Annex II hereto as the
new Schedule I.
6. Amendment of Schedule IV to the Credit Agreement.
(a) Revision of the notice delivery location.
Schedule IV to the Credit Agreement is hereby amended by replacing the wording
in both II.A. and III.A. after "Deliver to:" in its entirety and inserting in
both places the following:
"Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No: 000-000-0000
Fax No: 000-000-0000"
(b) Revision of the notice delivery time for Competitive
Advance Loan. Schedule IV is further amended by replacing the wording
in II.B. after "Delivery time:" in its entirety and inserting the following:
"By close of business in New York on the Thursday (or,
if such Thursday is not a Business Day, on the next Business
Day following such Thursday) immediately following the day
the Competitive Advance Loan is made."
7. Representations and Warranties. The Company
hereby represents and warrants that, after giving effect to the
amendments effected hereby, the representations and warranties
contained in Section 7 of the Credit Agreement are true and correct on
the date hereof.
8. Conditions to Effectiveness. (a) This
Amendment shall become effective upon the receipt by the
Administrative Agent (which effectiveness shall be confirmed to the
other parties hereto by the Administrative Agent's delivery to such
parties of notice of such effectiveness) of (i) counterparts of this
Amendment, duly executed and delivered by the Company and all of the
Lenders, (ii) the amendment fee referred to in Section 9 of this
Amendment and (iii) a written legal opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, addressed to the Administrative Agent and the Lenders, to the
effect that (x) this Amendment has been duly authorized, executed and
delivered by the Company and (y) this Amendment, and the Credit
Agreement as amended hereby, constitute the valid, binding and
enforceable obligations of the Company and the Domestic Subsidiaries
parties thereto (which opinion may contain exceptions and assumptions
similar to those contained in the opinion of such firm delivered on the
Closing Date).
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(b) In addition to the foregoing conditions to effectiveness, this
Amendment shall become effective with respect to the addition of each
New Subsidiary Borrower upon the receipt by the Administrative Agent
(which effectiveness shall be confirmed to the other parties hereto by the
Administrative Agent's delivery to such parties of a fully executed copy
of this Amendment) of the following:
(i) counterparts of this Amendment, duly executed by the
New Subsidiary Borrower; and
(ii) copies of corporate resolutions, other corporate
documents and legal opinions in respect of such New Subsidiary
Borrower, which resolutions, documents and opinions are substantially
equivalent to comparable materials delivered on the Closing Date in
respect of the other Subsidiary Borrowers.
9. Amendment Fee. The Company agrees to pay to
the Administrative Agent, for the account of each Lender, on the
Effective Date, a one-time fee of .075% of the amount by which such
Lender's Commitment is increased pursuant to this Amendment.
10. Miscellaneous. Except as expressly amended
herein, the Credit Agreement shall continue to be, and shall remain, in
full force and effect in accordance with its terms. 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. The Company agrees to pay or reimburse
the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution
of this Amendment including, without limitation, the fees and
disbursements of counsel to the Agent. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused
this Amendment to be duly executed and delivered by its proper and duly
authorized officer(s) as of the day and year first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Operating Officer
XXXXXX HOLDING GMBH
By: /s/ W.S. Palin
---------------------------
Name: W.S. Palin
Title: Vice President
XXXXXX GMBH
By: /s/ W.S. Palin
---------------------------
Name: W.S. Palin
Title: Vice President
XXXXXX OF NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Operating Officer
XXXXXXXX AUDIO LABORATORIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Operating Officer
SPIRIT BY SOUNDCRAFT, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Operating Officer
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ACKNOWLEDGED AND AGREED TO:
CHEMICAL BANK,
as Administrative Agent and Lender
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Title: Senior Vice President
BANK OF MONTREAL
By: /s/ Xxxxxx Peer
-----------------------
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ J.R. Trimble
---------------------------
Title: Senior Relationship Manager
CITIBANK, N.A.
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------
Title: Vice President
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Christian Jagenberg
------------------------------
Title: Senior Vice President and Manager
By: /s/ Xxxxx Xxxxx
---------------------------
Title: Assistant Treasurer
GIROCREDIT BANK
By: /s/ Xxxxxxx Xxxxx
------------------------
Title: Vice President
MIDLAND BANK PLC, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Title: Vice President
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THE MITSUBISHI BANK, LTD.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Joint General Manager
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Xxxx Xxxxxxx
---------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
------------------------------
Title: Vice President
SOCIETE GENERALE
By: /s/ Xxxxxx Saint-Xxxxx
--------------------------------
Title: Vice President
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ANNEX I
INFORMATION FOR NEW SUBSIDIARY BORROWERS
Name and Address Jurisdiction of Incorporation
Xxxxxx Holding GmbH Germany
Xx Xxxxxxxxxx 0
00000 Xxxxxxxx
Xxxxxxx
Xxxxxx GmbH Germany
Xx Xxxxxxxxxx 0
00000 Xxxxxxxx
Xxxxxxx
Xxxxxx of North America, Inc. New Jersey
00 Xxxx Xxx
Xxxxx Xxxxxx Xxxxx, XX 00000
Xxxxxxxx Audio Laboratories, Inc. Connecticut
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Spirit by Soundcraft, Inc. Delaware
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
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ANNEX II
LENDERS AND COMMITMENTS
Commitment
Lenders Commitments Percentage
Chemical Bank $ 60,000,000 21.818181818182
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
NationsBank, N.A. $ 50,000,000 18.181818181818
0000 Xxxxxxxxx Xxxxx
0xx Xxxxx, XX0-000-00-00
Xxxxxxxx, XX 00000-0000
Commerzbank $ 27,500,000 10.000000000000
000 X. Xxxxxxxx Xxxxxx
#0000
Xxx Xxxxxxx, XX 00000
PNC Bank, N.A. $ 25,000,000 9.090909090909
000 X. Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Midland Bank, PLC $ 25,000,000 9.090909090909
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Mitsubishi Bank, Ltd. $ 18,750,000 6.818181818182
000 Xxxxxxx Xxxxxx
Two World Financial Center
Xxx Xxxx, XX 00000
Societe Generale $ 18,750,000 6.818181818182
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Citibank, N.A. $ 12,500,000 4.545454545455
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
GiroCredit $ 12,500,000 4.545454545455
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Bank of Nova Scotia $ 12,500,000 4.000000000000
Xxx Xxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Bank of Montreal $ 12,500,000 4.000000000000
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Total $275,000,000 100.000000000000
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