▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL INC.
SEVENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Seventh Amendment to Revolving Credit Agreement (herein, the
"Amendment") is entered into as of December 1, 2005, between ▇▇▇▇▇▇ ▇▇▇▇▇▇
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 to Revolving Credit Agreement dated as of November
24, 2003, a Third Amendment to Revolving Credit Agreement dated as of September
13, 2004, a Fourth Amendment to Revolving Credit Agreement dated as of November
24, 2004, a Fifth Amendment to Revolving Credit Agreement dated as of May 6,
2005, and a Sixth Amendment to Revolving Credit Agreement dated as of July 15,
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 the Banks extend the existing
Termination Date of December 1, 2006 in accordance with Section 24 of the Credit
Agreement, and make certain other amendments thereto and the Banks are 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 "Termination Date" in Section 1 of the Credit
Agreement shall be amended and restated in its entirety to read as follows:
"Termination Date: December 1, 2007, or such later date as may be
extended pursuant to Section 24 hereof."
1.2. Section 8.2(a)(ii) of the Credit Agreement shall be amended in
its entirety to read as follows:
"(ii) up to $70,000,000 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,"
1.3. Section 8.2(h) of the Credit Agreement shall be amended in its
entirety to read as follows:
"(h) make or become obligated to make any Capital Expenditures,
except that during any fiscal year the Borrower and its Subsidiaries
may make, or become obligated to make, Capital Expenditures so long as
the aggregate amount of such Capital Expenditures (net of proceeds
from the sale of capital or fixed assets) does not exceed $4,000,000
in any fiscal year through fiscal year ending May 31, 2007, and
$1,500,000 in any fiscal year thereafter."
1.4. Present Exhibit C to the Credit Agreement shall be deleted and
there shall be substituted in its place Exhibit C hereto.
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 replacement Promissory Notes to the Banks.
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.
2.4. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Europe Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Japan Inc. and ▇▇▇▇▇▇
▇▇▇▇▇▇ 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
-2-
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]
-3-
This Seventh Amendment to Revolving Credit Agreement is entered into as of
the date and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL INC.
By
Name_________________________________
Title________________________________
Accepted and agreed to:
ABN AMRO BANK N.V., individually and as
Agent
By
Name_________________________________
Title________________________________
By
Name_________________________________
Title________________________________
BANK LEUMI USA
By
Name_________________________________
Title________________________________
By
Name_________________________________
Title________________________________
-4-
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
Seventh 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.
▇▇▇▇▇▇ ▇▇▇▇▇▇ EUROPE INC.
By
Name_________________________________
Title________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ JAPAN INC.
By
Name_________________________________
Title________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ AFRICA INC.
By
Name_________________________________
Title________________________________
EXHIBIT C
AMENDED PROMISSORY NOTE
New York, New York
$_______________ December __, 2005
On December 1, 2007, FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇
INTERNATIONAL INC., a Delaware corporation (the "Borrower") promises to pay to
the order of __________________________________________ at its ____________
office at____________ _________________________________________, the principal
sum of ___________________ Dollars ($________________), or such lesser amount as
may be advanced to the Borrower hereon pursuant to the Agreement hereinafter
identified.
The Borrower hereby promises to pay interest (computed on the basis of a
year of 360 days for the actual number of days elapsed) on the principal amount
from time to time remaining unpaid hereon from the date hereof until paid at the
rates, and payable in the manner and on the dates, specified in the Agreement.
All loans made by the payee hereof against this Note, and all payments made
by the Borrower on account of the unpaid principal amount hereof, shall be
recorded on the books and records of the holder hereof and endorsed hereon prior
to any transfer hereof, and the Borrower agrees that in any action or proceeding
instituted to collect or enforce collection of this Note, the amount shown as
owing on this Note on the books and records of the holder hereof shall be deemed
prima facie correct.
This Note is issued in replacement of the prior Amended Promissory Note of
the Borrower dated _____________, under the terms and provisions of Revolving
Credit Agreement dated August 14, 2002, by and among the Borrower, ABN AMRO BANK
N.V and Bank Leumi USA (the "Agreement"), and this replacement Note and the
holder hereof are entitled to all of the benefits provided for by said Agreement
or referred to therein, including the ability of the Bank to accelerate the
payment of this Note upon the occurrence of an Event of Default, to which
Agreement reference is hereby made for a statement thereof. All obligations of
the Borrower evidenced by the prior Amended Promissory Note shall continue
outstanding and shall be deemed to be evidenced hereby.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of New York.
The Borrower hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or in enforcing any rights in any collateral therefor. The Borrower hereby
waives presentment for payment and notice of dishonor.
▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL INC.
By:_____________________________________
Its:_________________________________