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EXHIBIT 10.26.1
FIRST AMENDMENT TO PLEDGE AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AGREEMENT (this "First Amendment"),
dated as of October 12, 1999, is made by WESTAR CAPITAL II, LLC, a Delaware
limited liability company (the "Pledgor").
X. Xxxxxxxx Manufacturing Company, Inc., the Lenders and Bank of
America, N.A. as Administrative Agent (the "Administrative Agent") are parties
to that certain Credit Agreement, dated as of August 12,1999 (as amended,
modified, or supplemented from time to time, the "Credit Agreement"; the terms
defined in the Credit Agreement and not otherwise defined herein shall be used
herein as defined in the Credit Agreement).
B. Pursuant to the Credit Agreement, the Pledgor executed that certain
Pledge Agreement dated as of August 12, 1999 (the "Pledge Agreement") in favor
of Bank of America, N.A., as the Administrative Agent for Bank of America, N.A.
and each other lender a party to the Credit Agreement.
C. The Pledgor desires to amend the Pledge Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Pledgor
covenants and agrees as follows:
1. AMENDMENT TO PLEDGE AGREEMENT.
(a) Section 8 of the Pledge Agreement is hereby amended in its entirety
to read as follows:
"Collateral Adjustment. The Pledgor acknowledges that the
value of Collateral pledged hereunder shall at all times be in an
amount not less than the greater of (a) the remainder of the aggregate
principal amount of Credit Advances outstanding at any time minus
$5,000,000 and (b) the lesser of (i) $5,000,000 or (ii) the principal
amount of Credit Advances outstanding at any time (such amount, the
"Required Collateral Amount"). If at any time the Collateral pledged
hereunder exceeds the Required Collateral Amount, the Administrative
Agent, upon the written request of the Pledgor, shall release such
amount of the Collateral (by issuing replacement certificates of
deposit) such that the Collateral remaining subject to the Pledge
Agreement shall equal the Required Collateral Amount. The Pledgor
acknowledges that the Administrative Agent shall have no obligation to
make any Revolving Credit Advances under the Credit Agreement if after
making such requested Revolving Credit Advance the aggregate principal
amount of outstanding Revolving Credit Advances would exceed the
Required Collateral Amount (such excess, a "Collateral Deficiency"). If
after making a requested Revolving Credit Advance a Collateral
Deficiency would occur, the Pledgor shall, prior to the receipt of any
such requested Revolving Credit Advance, deposit additional Collateral
in form and substance satisfactory to the Administrative Agent in an
amount equal to the Required Collateral Amount."
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2. REPRESENTATIONS AND WARRANTIES TRUE. By its execution and delivery
hereof, the Pledgor represents and warrants that, as of the date hereof and
after giving effect to the amendments contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the Pledge
Agreement are true and correct on and as of the date hereof as if made on and as
of such date;
(b) the Pledgor has full power and authority to execute and deliver
this First Amendment, and this First Amendment and the Pledge Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Pledgor, enforceable against the Pledgor in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief laws
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as rights to indemnity may be
limited by federal or state securities laws; and
(c) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person (including the
managers of the Pledgor), is required that has not been obtained for the
execution, delivery or performance by the Pledgor of this First Amendment.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective
as of October 12, 1999, subject to the following:
(a) the Administrative Agent shall have received counterparts of this
First Amendment executed by the Pledgor;
(b) the representations and warranties set forth in Section 2 of this
First Amendment shall be true and correct; and
(c) the Administrative Agent and the Lenders shall have received in
form and substance satisfactory to the Administrative Agent and the Lenders,
such other documents and certificates as the Administrative Agent shall require.
4. REFERENCE TO THE PLEDGE AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in
the Pledge Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Pledge Agreement, as affected and amended
by this First Amendment.
(b) The Pledge Agreement, as amended by this First Amendment, the Lien
granted thereunder and all other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
5. COSTS, EXPENSES AND TAXES. The Pledgor agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this First Amendment, and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the
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Administrative Agent as to its rights and responsibilities under the Pledge
Agreement, as amended by this First Amendment).
6. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon the Pledgor and its successors and assigns.
7. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of this
First Amendment for any other purpose.
8. ENTIRE AGREEMENT. THE PLEDGE AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the Pledgor has executed this First Amendment as of
the date first above written.
PLEDGOR: WESTAR CAPITAL II, LLC
By: Westar Capital Associates II, LLC, as manager
By:
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Name:
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Title:
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