EXHIBIT 10.8
FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT
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FIRST AMENDMENT TO LETTER OF CREDIT AGREEMENT (this "Amendment"),
dated as of November 7, 1996, among MK GROUP, INC. (the "Guarantor"), XXXXXX-
XXXXX INDUSTRIES, INC. (the "Company") and BANKERS TRUST COMPANY (the "Bank").
Unless otherwise defined herein, all capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Letter of Credit Agreement.
W I T N E S S E T H :
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WHEREAS, the Guarantor, the Company and the Bank are parties to a
Letter of Credit Agreement, dated as of September 22, 1995 (the "Letter of
Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Letter of Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Letter of Credit Agreement.
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1. Section 1.01 of the Letter of Credit Agreement is hereby amended
by inserting the word "Original" immediately following the text "Initial
Borrowing Date under the" appearing in said Section.
2. Section 3.09 of the Letter of Credit Agreement is hereby amended
by (i) inserting the word "Original" immediately following the text "in Sections
5 and 6 of the" appearing in said Section and (ii) inserting the word "Original"
immediately following the text "Date under the" appearing in said Section.
3. Section 4.06 of the Letter of Credit Agreement is hereby amended by
inserting the word "Original" immediately following the text "in the" appearing
in said Section.
4. The preamble of Section 5 of the Letter of Credit Agreement is
hereby amended by deleting the phrase "the Effective Date" appearing therein and
inserting in lieu thereof the phrase "(x) the First Amendment Effective Date, in
the case of Section 5.01 and (y) the Effective Date, in the case of Section
5.02,".
5. Section 5.01 of the Letter of Credit Agreement is hereby amended
by (i) deleting the phrase "Each of the Guarantor and the Company will, and will
cause each of its respective" and inserting in lieu thereof the text "(A) The
Guarantor will cause each of its Subsidiaries to and (B) the Company will, and
will cause each of its", (ii) deleting
the phrase "the Guarantor," appearing in the first sentence of said Section,
(iii) deleting the phrase "the Guarantor, the Company and their respective
Subsidiaries" appearing in the second sentence of said Section and inserting in
lieu thereof the phrase "the respective Subsidiaries of the Guarantor and the
Company" and (iv) deleting the phrase "Effective Date" appearing therein and
inserting in lieu thereof the phrase "First Amendment Effective Date".
6. Section 6.03 of the Letter of Credit Agreement is hereby amended
by (i) deleting the phrase "Effective Date" in each place it appears therein and
inserting in lieu thereof the phrase "First Amendment Effective Date" and (ii)
deleting the text ", 9.09, 9.10 and/or 9.11" appearing therein and inserting in
lieu thereof the text "9.08 and/or 9.09".
7. The remedies provision appearing at the end of Section 6 of the
Letter of Credit Agreement is hereby amended by deleting the phrase "Effective
Date" appearing therein and inserting in lieu thereof the phrase "First
Amendment Effective Date".
8. The definition of "Acquisition" appearing in Section 7 of the
Letter of Credit Agreement is hereby amended by inserting the word "Original"
immediately following the text "provided in the" appearing therein.
9. The definition of "Acquisition Documents" appearing in Section 7
of the Letter of Credit Agreement is hereby amended by inserting the word
"Original" immediately following the text "provided in the" appearing therein.
10. The definition of "Credit Agreement" appearing in Section 7 of
the Letter of Credit Agreement is hereby amended by (i) deleting the date
"September 22, 1995" appearing therein and inserting in lieu thereof the date
"November 7, 1996"; (ii) deleting the phrase "the Guarantor, the Company" and
inserting in lieu thereof the phrase "Motors and Gears Industries, Inc."
11. The definition of "Initial Borrowing Date" appearing in Section 7
of the Letter of Credit Agreement is hereby amended by inserting the word
"Original" immediately following the text "provided in the" appearing therein.
12. The definition of "Material Adverse Effect" appearing in Section
7 of the Letter of Credit Agreement is hereby amended by inserting the word
"Original" immediately following the text "as defined in the" appearing therein.
13. The definition of "Mergers" appearing in Section 7 of the Letter
of Credit Agreement is hereby amended by inserting the word "Original"
immediately following the text "provided in the" appearing therein.
14. Section 7 of the Letter of Credit Agreement is hereby further
amended by inserting in the appropriate alphabetical order the following new
definition:
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"First Amendment" shall mean the First Amendment to this Agreement,
dated as of November 7, 1996.
"First Amendment Effective Date" shall have the meaning provided in
the First Amendment.
"Original Credit Agreement" shall mean the Credit Agreement, dated as
of September 22, 1995, among the Guarantor, the Company, various lending
institutions from time to time party thereto and Bankers Trust Company, as
Agent, as in effect on the First Amendment Effective Date (prior to giving
effect to the First Amendment).
15. Section 9.02 of the Letter of Credit Agreement is hereby amended
by deleting the phrase "Effective Date" appearing in said Section and inserting
in lieu thereof the phrase "First Amendment Effective Date".
II. Miscellaneous Provisions.
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1. In order to induce the Bank to enter into this Amendment, each of
the Company and the Guarantor hereby represents and warrants that:
(a) no Default or Event of Default exists as of the First Amendment
Effective Date (as defined below), both before and after giving effect to
this Amendment; and
(b) all of the representations and warranties contained in the Letter
of Credit Agreement and the other L/C Documents are true and correct in all
material respects on the First Amendment Effective Date, both before and
after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the First
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Letter of
Credit Agreement or any other L/C Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Company and the Bank.
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4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of the Guarantor, the Company and the Bank
shall have signed a copy hereof (whether the same or different copies) and shall
have delivered (including by way of facsimile transmission) the same to the Bank
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxx Xxxxx.
6. From and after the First Amendment Effective Date, all references
in the Letter of Credit Agreement and each of the other L/C Documents to the
Letter of Credit Agreement shall be deemed to be references to the Letter of
Credit Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
MK GROUP, INC.
By /s/ Xxxxxxxx X. Xxxxxxx
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Title:
XXXXXX-XXXXX INDUSTRIES, INC.
By /s/ Xxxxxxxx X. Xxxxxxx
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Title:
BANKERS TRUST COMPANY
By /s/ Xxxxxxxx Xxxxx
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Title: Vice President
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