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EXHIBIT 10.24(d)
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made and entered into as of the 11th day of October, 1996,
among NORWOOD PROMOTIONAL PRODUCTS, INC., a Texas corporation ("Norwood"), and
THE FROST NATIONAL BANK ("Frost Bank"), individually, as the Issuing Bank and
as the Agent, and each financial institution that is a signatory hereto or
becomes a party hereto as provided in Section 10.7 (individually, a "Bank" and
collectively, the "Banks").
RECITALS
A. Norwood, the Agent, the Issuing Bank and the other Banks have
heretofore entered into the Amended and Restated Credit Agreement dated as of
July 26, 1995 (as amended, modified, restated and supplemented from time to
time, the "Credit Agreement").
B. Norwood and the Banks desire to amend the Credit Agreement to
extend the Acquisition Availability Period and the Term Loan Availability
Period as provided herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good, fair and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that the terms and provisions of the Original Credit Agreement are
amended and restated as follows:
1. Defined Terms and Related Matters.
(a) Unless otherwise defined herein, the capitalized
terms used herein which are defined in the Credit Agreement shall have
the meanings specified therein.
(b) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement.
2. Amendments. The Credit Agreement shall be amended as follows:
(a) The definition of Term Commitment Termination Date in
Annex B attached to the Credit Agreement is hereby amended to read in
its entirety as follows:
"Term Commitment Termination Date" means the earlier
of (i) December 31, 1997 and (ii) the date upon which the Term
Commitments of all Banks have been terminated pursuant to the
terms of this Agreement.
(b) The definition of Acquisition Commitment Termination
Date in Annex B attached to the Credit Agreement is hereby amended to
read in its entirety as follows:
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"Acquisition Commitment Termination Date" means the
earlier of (i) December 31, 1997 and (ii) the date upon which
the Acquisition Commitments of all Banks have been terminated
pursuant to the terms of this Agreement.
3. In order to induce the Agent and the Banks to enter into this
Amendment, Norwood and each Subsidiary of Norwood hereby represent and warrant
to the Agent and the Banks that, as of the date of this Amendment, (a) the
representations and warranties set forth in the Credit Agreement and each other
Loan Document to which it is a party are true and correct as if made on and as
of the date hereof (other than those representations and warranties expressly
limited by their terms to a specific date), (b) no Default or Event of Default
has occurred and is continuing, except to the extent that such Default or Event
of Default has been waived in Waiver Letter signed by the Banks, and (c) no
event has occurred since the date of the most recent financial statements
delivered pursuant to Section 5.1 of the Credit Agreement that has caused a
Material Adverse Effect.
4. Norwood hereby acknowledges and agrees that no facts, events,
status or conditions presently exist which, either now or with the passage of
time or the giving of notice or both, presently constitute or will constitute a
basis for any claim or cause of action against any of the Banks, or any defense
to the payment of any of the indebtedness evidenced or to be evidenced by any
of the Loan Documents.
5. Each Subsidiary of Norwood covenants and agrees that, as to
the Subsidiary Guaranty Agreement executed and delivered by such Subsidiary in
favor of the Banks as part of the Security Documents, (a) such Subsidiary
Guaranty Agreement is an unconditional guarantee of payment and performance and
not of collection, (b) such Subsidiary Guaranty Agreement represents the
primary, absolute and unconditional obligation of such Subsidiary, and (c) such
Subsidiary Guaranty Agreement is a continuing guarantee and shall remain in
full force and effect until the termination of the obligations of the Banks to
make Loans or issue Letters of Credit and the indefeasible payment in full of
the Obligations (as defined in each such Subsidiary Guaranty Agreement).
6. As to each Security Document executed in favor of the Banks,
Norwood and each Subsidiary of Norwood hereby ratify and confirm the liens and
security interests of the Banks in and to all collateral covered by each such
Security Document to which it is a party as security for the prompt and full
payment and performance of the obligations secured by each such Security
Document. In furtherance of the foregoing, all liens and security interests of
each such Security Document (which are hereby acknowledged to be valid and
subsisting) are hereby carried forward, continued, extended, modified and
renewed to secure the prompt and full payment and performance of the
obligations secured by each such Security Document.
7. As to each Security Document executed in favor of Norwood or
Norcorp and collaterally assigned, ultimately, in favor of the Banks, Norwood
and each Subsidiary of Norwood hereby ratify and confirm the liens and security
interests of the Banks, as collateral assignees, in and to all collateral
covered by each such Security Document to which it is a party as security for
the prompt and full payment and performance of the obligations secured by each
such Security Document. In furtherance of the foregoing, all liens and
security interests of each such Security Document (which are hereby
acknowledged to be valid and subsisting) are hereby carried forward, continued,
extended, modified and renewed to secure the prompt and full payment and
performance of the obligations secured by each such Security Document.
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8. Each Loan Document is hereby amended and modified to the
extent necessary to give full force and effect to the terms of this Amendment,
and each such Loan Document shall hereafter be construed and interpreted after
giving full force and effect to the terms of this Amendment. As amended,
modified and supplemented pursuant to this Amendment, Norwood and each
Subsidiary of Norwood hereby ratify, confirm and restate each Loan Document to
which it is a party and agrees that each such Loan Document shall continue in
full force and effect. Each of the Loan Documents now or hereafter executed
and delivered pursuant to the terms hereof or pursuant to the terms of the
Credit Agreement, as amended hereby, or as further evidence of or security for
or in connection with the Credit Agreement, as amended hereby, is hereby
amended to the extent necessary so that any reference in any such documents,
instruments or agreements to the Credit Agreement shall be a reference to the
Credit Agreement, as amended hereby.
9. In the event that any one or more of the provisions contained
in this Amendment shall be determined invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision or provisions in every other respect and the remaining provisions of
this Amendment shall not be impaired in any way.
10. When required or implied by the context used, defined terms
used herein shall include the plural as well as the singular, and vice versa.
11. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Texas and applicable federal
laws of the United States of America. This Amendment has been entered into in
Bexar County, Texas and shall be performable for all purposes in Bexar County,
Texas. The courts within the State of Texas shall have jurisdiction over any
and all disputes arising under or pertaining to this Amendment; and any such
dispute shall be heard in the county or judicial district of the principal
place of business of The Frost National Bank.
12. This Amendment shall be binding upon and inure to the benefit
of all parties hereto and their respective successors and assigns; provided,
however, that neither Norwood nor any of its Subsidiaries nor any of their
respective successors or assigns may, without the prior written consent of all
of the Banks, assign any rights, powers, duties or obligations hereunder.
13. This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument.
14. This Amendment constitutes a Loan Document.
15. Upon execution of this Agreement by the Banks, Norwood and
each of its Subsidiaries shall deliver to the Agent, in form and substance
satisfactory to the Agent, the certificates and documents described on Annex A.
16. Upon execution of this Agreement by the Banks, Norwood shall
pay the Agent, for the ratable account of the Banks, a non-refundable amendment
fee equal to $11,516.69.
[signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized signatories as of the day and
year first above written.
NORWOOD:
NORWOOD PROMOTIONAL PRODUCTS, INC.
By: /s/ J. Max Waits
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J. Max Waits,
Secretary, Treasurer and Chief
Financial Officer
BANKS:
THE FROST NATIONAL BANK,
Individually, as the Agent and the
Issuing Bank
By: /s/ Victor J. Harris
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Victor J. Harris, Vice President
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By: /s/ Juan A. Cazorla
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Juan A. Cazorla, Vice President
BANQUE PARIBAS
By: /s/ Deanna C. Walker
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Deanna C. Walker, Assistant Vice
President
By: /s/ Kenneth E. Moore, Jr.
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Kenneth E. Moore, Jr.,
Vice President
[signatures continued on next page]
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SUBSIDIARIES:
NORCORP, INC.
By: /s/ J. Max Waits
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J. Max Waits, Secretary, Treasurer
and Chief Financial Officer
RADIO CAP COMPANY, INC.
By: /s/ J. Max Waits
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J. Max Waits, Secretary
BARLOW PROMOTIONAL PRODUCTS, INC.
By: /s/ J. Max Waits
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J. Max Waits, Secretary
KEY INDUSTRIES, INC.
By: /s/ J. Max Waits
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J. Max Waits, Secretary
ARTMOLD PRODUCTS CORPORATION
By: /s/ J. Max Waits
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J. Max Waits, Secretary
AIR-TEX CORPORATION
By: /s/ J. Max Waits
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J. Max Waits, Secretary
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ANNEX A
1. Norwood and each of its Subsidiaries shall have provided to
the Agent a certificate signed by the secretary of such corporation, which
secretary's office and signature shall be confirmed by another officer of such
corporation, dated as of the effective date of this Amendment attaching thereto
or containing therein, and certifying as to the following: (i) corporate
resolutions, as in effect and neither revoked nor rescinded, duly adopted by
the board of directors of such corporation authorizing the execution, delivery
and performance of this Amendment and all other documents, instruments and
agreements in connection therewith (the "Amendment Documents") to which it is
or will be a party, and the transactions contemplated thereby; and (ii) names,
incumbency and specimen signatures of the officers of such corporation
authorized to execute and deliver the Amendment Documents to which such
corporation is a party.
2. All other documents requested by the Agent in connection with
this Amendment.
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