Exhibit 10(aa)
XXXXXX XXXXXX INTERNATIONAL INC.
SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Sixth Amendment to Revolving Credit Agreement (herein, the
"Amendment") is entered into as of July ___, 2005, between Xxxxxx Xxxxxx
International Inc., a Delaware corporation (the "Borrower"), and ABN AMRO Bank
N.V., as Administrative Agent (the "Agent"), ABN AMRO Bank N.V., as a lender
("ABN AMRO") and Bank Leumi USA, as a lender ("Leumi" and together with ABN
AMRO, the "Banks").
PRELIMINARY STATEMENTS
A. The Borrower, the Agent and the Banks entered into a certain Revolving
Credit Agreement, dated as of August 14, 2002, as amended by the First Amendment
to Revolving Credit Agreement between the Borrower and the Banks dated as of May
28, 2003, a Second Amendment dated as of November 24, 2003, a Third Amendment
dated as of September 13, 2004, a Fourth Amendment to Revolving Credit Agreement
dated as of November 24, 2004 and a Fifth Amendment to Revolving Credit
Agreement dated as of May 6, 2005 (the Revolving Credit Agreement, as the same
has been amended prior to the date hereof, being referred to herein as 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 (i) ABN AMRO increase its Commitment by
an additional $10,000,000 and ABN AMRO is willing to do so under the terms and
conditions set forth in this Amendment and (ii) the Borrower be permitted to
incur certain additional permitted indebtedness.
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 "Commitment" in Section 1 of the Credit
Agreement shall be amended by deleting the amount of "$25,000,000" as it
relates to ABN AMRO and inserting in its place the amount of "$35,000,000."
1.2. Section 8.1 of the Credit Agreement shall be amended by deleting
the word "and" appearing after Section 8.1(h), deleting the period after
Section 8.1(i) and replacing such period with a semi-colon and the word
"and," and by adding the following additional subsection:
"(j) at all times, maintain the Obligations owing to the Banks on
an equal and pari-passu basis with all other unsecured and
unsubordinated indebtedness and obligations of the Borrower from time
to time outstanding."
1.3. Section 8.2(a)(ii) of the Credit Agreement shall be amended in
its entirety to read as follows:
"(ii) up to $45,000,000 in Indebtedness of the Borrower and/or
Subsidiaries of the Borrower (including, without limitation, Material
Domestic Subsidiaries) under lines of credit from Antwerp Diamond
Bank, including any guaranties thereof by the Borrower or Subsidiaries
of the Borrower,"
1.4. Section 8.2(a)(iii) of the Credit Agreement shall be amended by
deleting "One Billion One Hundred Million Yen" and inserting in its place
"Five Hundred Fifty Million Yen."
1.5. Section 8.2(a) of the Credit Agreement shall be amended by
deleting the word "and" at the end of clause (vi), replacing it with a
comma and adding the following wording after clause (vii):
"and (viii) up to $6,000,000 in Indebtedness of the Borrower
and/or any Subsidiary thereof to Nedbank, Limited, South Africa,
including any guaranties thereof by the Borrower or Subsidiaries of
the Borrower;"
1.6. Section 8.2(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 8.2(b):
"and (vi) Liens granted by any Subsidiaries of the Borrower on
the property of such Subsidiaries located outside of the United States
to secure Indebtedness permitted by Section 8.2(a)(ii) or Section
8.2(a)(viii);"
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, the Agent and the Banks shall have executed and
delivered this Amendment, and the Borrower shall have executed and
delivered a replacement Promissory Note to ABN AMRO.
2.2. The Agent 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 to the extent
the Agent or its counsel may reasonably request.
2.3. Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Agent and its counsel.
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2.4. Xxxxxx Xxxxxx Europe Inc., Xxxxxx Xxxxxx Japan Inc. and Xxxxxx
Xxxxxx Africa Inc. shall have executed and delivered to the Agent their
consent to this Amendment in the form set forth below.
SECTION 3. REPRESENTATIONS.
In order to induce the Banks to execute and deliver this Amendment, the
Borrower hereby represents to the Banks that as of the date hereof the
representations and warranties set forth in Section 6 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 6(d) shall be deemed to refer to the most recent financial
statements of the Borrower delivered to the Banks) 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 Notes, 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 the Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment, including the fees and expenses of counsel for
the Agent.
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 Sixth Amendment to Revolving Credit Agreement is entered into as of
the date and year first above written.
XXXXXX XXXXXX INTERNATIONAL INC.
By
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Name
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Title
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Accepted and agreed to:
ABN AMRO BANK N.V., individually and
as Agent
By
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Name
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Title
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By
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Name
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Title
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BANK LEUMI USA
By
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Name
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Title
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By
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Name
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Title
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GUARANTOR'S ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned heretofore executed and delivered to the Bank a
Guaranty dated August 14, 2002. 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.
By
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Name
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Title
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XXXXXX XXXXXX JAPAN INC.
By
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Name
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Title
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XXXXXX XXXXXX AFRICA INC.
By
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Name
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Title
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