XXXXXX XXXXXX INTERNATIONAL INC.
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This First Amendment to Revolving Credit Agreement (herein, the
"Amendment") is entered into as of December ___, 2005, between Xxxxxx Xxxxxx
International Inc., a Delaware corporation (the "Borrower") and HSBC Bank USA,
National Association, as Lender (the "Lender").
PRELIMINARY STATEMENTS
A. The Borrower and Lender entered into a certain Revolving Credit
Agreement, dated as of September 28, 2004 (the "Credit Agreement"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement.
B. The Borrower has requested that Lender amend the Credit Agreement to
(i) amend certain provisions with respect to permitted Indebtedness of Borrower
and (ii) modify the terms of Borrower's Capital Expenditure covenant as set
forth below, and Lender is willing to do so under the terms and conditions set
forth in this Amendment.
Now, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows: SECTION 1. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Credit Agreement shall be and hereby is amended as follows:
1.1 The definition of "Antwerp Diamond Bank Line" appearing in
Section 1 of the Credit Agreement shall be amended in its entirety as
follows:
"Antwerp Diamond Bank Line: Collectively, subject to Section
7.2(b)(vi), the unsecured line of credit given to the Borrower
by Antwerp Diamond Bank and the unsecured line of credit given
to the Borrower's wholly-owned Subsidiary, Xxxxxx Xxxxxx
Belgium (LKB) NV by Antwerp Diamond Bank, in the aggregate
amount of up to $70,000,000.
1.2 Section 7.2(a) of the Credit Agreement shall be amended in
its entirety as follows:
"(a)create, incur or assume any Indebtedness other than (i)
Indebtedness to Bank, (ii) up to $45,000,000 in unsecured
Indebtedness under the ABN AMRO Leumi Credit Agreement, (iii)
up to $70,000,000 in, subject to Section 7.2(b)(vi), unsecured
Indebtedness (which shall include any Indebtedness of Xxxxxx
Xxxxxx Belgium (LKB) NV) under lines of credit from Antwerp
Diamond Bank to it and such Subsidiary, including guaranties
by Subsidiaries of the Borrower (including, without
limitation, Material Domestic Subsidiaries) in connection with
such Indebtedness, (iv) up to five hundred fifty million Yen
in unsecured Indebtedness to ABN AMRO Bank N.V., Tokyo branch,
including guaranties by Subsidiaries of the Borrower
(including, without limitation, Material Domestic
Subsidiaries) in connection with such Indebtedness, (v)
current liabilities of the Borrower not incurred through the
borrowing of money or the obtaining of credit on an open
account basis customarily extended, (vi) Indebtedness in
respect of taxes or other governmental charges contested in
good faith and by appropriate proceedings and for which
adequate reserves have been taken, (vii) up to $6,000,000 in
Indebtedness (which shall include all Indebtedness of
Subsidiaries of Borrower) to Nedbank, Limited, South Africa,
including guaranties by the Borrower and Subsidiaries of the
Borrower in connection with such Indebtedness, and (viii)
other unsecured Indebtedness not in excess of $250,000;"
1.3 Section 7.2(b) of the Credit Agreement shall be amended by
deleting the word "and" in front of clause (v) and by adding the
following wording to the end of Section 7.2(b):
"and (vi) Liens granted by Subsidiaries of the Borrower on the
property of such Subsidiaries located outside of the United
States to secure Indebtedness permitted by
Section7.2(a)(iii) or Section 7.2(a)(vii);"
1.4 Section 7.2(h) of the Credit Agreement shall be amended by
replacing "$1,5000,000" with "$4,000,000" in such Section.
SECTION 2. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
2.1 The Borrower and Lender shall have executed and delivered
this Amendment.
2.2 Lender shall have received copies (executed or certified,
as may be appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Amendment.
2.3 Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to Lender.
2.4 Xxxxxx Xxxxxx Europe Inc. and Xxxxxx Xxxxxx Japan Inc.
shall have executed and delivered to Lender their consent to this
Amendment in the form set forth below.
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SECTION 3. REPRESENTATIONS.
In order to induce Lender to execute and deliver this Amendment, the
Borrower hereby represents to Lender that as of the date hereof the
representations and warranties set forth in Section 5 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 5(d) shall be deemed to refer to the most recent financial
statements of the Borrower delivered to Lender) and the Borrower is in
compliance with the terms and conditions of the Credit Agreement and no Default
or Event of Default has occurred and is continuing under the Credit Agreement or
shall result after giving effect to this Amendment.
SECTION 4. MISCELLANEOUS.
4.1 Except as specifically amended herein, the Credit
Agreement shall continue in full force and effect in accordance with
its original terms. Reference to this specific Amendment need not be
made in the Credit Agreement, the Note, or any other instrument or
document executed in connection therewith, or in any certificate,
letter or communication issued or made pursuant to or with respect to
the Credit Agreement, any reference in any of such items to the Credit
Agreement being sufficient to refer to the Credit Agreement as amended
hereby.
4.2 The Borrower agrees to pay on demand all costs and
expenses of or incurred by Lender in connection with the negotiation,
preparation, execution and delivery of this Amendment, including the
fees and expenses of counsel for Lender.
4.3 This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart
signature pages, all of which taken together shall constitute one and
the same agreement. Any of the parties hereto may execute this
Amendment by signing any such counterpart and each of such counterparts
shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of New York.
[SIGNATURE PAGE TO FOLLOW]
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This First Amendment to Revolving Credit Agreement is entered into as
of the date and year first above written.
XXXXXX XXXXXX INTERNATIONAL INC.
By:
Name:
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Title:
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Accepted and agreed to.
HSBC BANK USA, NATIONAL ASSOCIATION
By:
Name:
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Title:
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GUARANTOR'S ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned heretofore executed and delivered to Lender a
Guaranty dated September 28, 2004. 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,
specifically required by the Guaranty referred to above.
XXXXXX XXXXXX EUROPE INC.
By:
Name:
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Title:
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XXXXXX XXXXXX JAPAN INC.
By:
Name:
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Title:
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