Exhibit 10.7
EXCHANGE AGREEMENT
BY AND BETWEEN
XXXXXX INDUSTRIES, INC.,
AND
CONTRARIAN FUNDS, LLC
Dated as of January 14, 2004
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "AGREEMENT") is entered into as of
January 14, 2004, by and between XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("XXXXXX INDUSTRIES"), and CONTRARIAN FUNDS, LLC, a Delaware limited
liability company ("CONTRARIAN"). Capitalized terms used herein but not
otherwise located in the text of this Agreement are defined in SECTION 11.12.
W I T N E S S E T H:
WHEREAS, Contrarian owns $7,715,919.45 principal amount of the
outstanding subordinated debt of Xxxxxx Industries (the "SUBORDINATED DEBT")
under that certain Amended and Restated Credit Agreement, dated July 23, 2001,
as amended (the "NOTE CREDIT AGREEMENT"), by and among Xxxxxx Industries, Xxxxxx
Industries Towing Equipment, Inc., a Delaware corporation, and Bank of America,
N.A., in its capacity as a Lender, and other financial institutions which may be
Lenders from time to time, which Subordinated Debt is evidenced by certain
promissory notes issued by Xxxxxx Industries (the "NOTES");
WHEREAS, in relation to the Subordinated Debt, Contrarian also owns
103,644 of the warrants issued by Xxxxxx Industries (the "WARRANTS") pursuant to
that certain Warrant Agreement, dated July 23, 2001, by and among Xxxxxx
Industries, Bank of America, N.A., SunTrust Bank, Wachovia Bank, N.A. and
AmSouth Bank (the "WARRANT AGREEMENT");
WHEREAS, Contrarian has agreed that as of January 14, 2004, on the
terms and subject to the conditions set forth in this Agreement, it will (i)
exchange the portion of the Subordinated Debt that is over and above
$5,401,143.62, representing 70% of the aggregate principal amount of the
Subordinated Debt (the "BASE AMOUNT"), for shares of common stock of Xxxxxx
Industries, par value $.01 per share ("XXXXXX COMMON STOCK") (the "Exchange"),
and (ii) convert the Warrants, on the terms and conditions set forth herein (the
"WARRANT Conversion") for shares of Xxxxxx Common Stock;
WHEREAS, Contrarian has also agreed that as of January 14, 2004, it
will exchange its Notes (the "NOTE AMENDMENT") for an amended Tranche A
Subordinated Secured Note in a principal amount equal to the Base Amount of the
Notes and in the form attached hereto in EXHIBIT A (the "TRANCHE A NOTE");
WHEREAS, the Board of Directors of Xxxxxx Industries has unanimously
approved this Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements herein contained and other good and valuable
consideration, the parties hereby agree as follows:
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SECTION 1. EXCHANGE OF PORTION OF SUBORDINATED DEBT FOR SHARES OF XXXXXX COMMON
STOCK AND ISSUANCE OF TRANCHE A NOTE.
Upon the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as hereinafter defined):
(a) Xxxxxx Industries shall deliver irrevocable instructions
to SunTrust Bank, as transfer agent of the Xxxxxx Common Stock (the
"TRANSFER AGENT"), to issue and deliver to Contrarian a number of
shares of Xxxxxx Common Stock equal to the Note Stock Amount and the
Warrant Stock Amount (each as hereinafter defined); and
(b) Upon receipt of evidence reasonably satisfactory to it of
the issuance of the instructions referred to in SECTION 1(A),
Contrarian shall deliver to Xxxxxx Industries all of the Notes owned by
it (subject to SECTION 4.3) and Xxxxxx Industries shall deliver to
Contrarian a Tranche A Note in the principal amount equal to the Base
Amount.
SECTION 2. NOTE STOCK AMOUNT.
2.1 NOTE STOCK AMOUNT. The "NOTE STOCK AMOUNT" shall be determined as
follows:
(a) If the Exchange Price (as defined below) is not greater
than $7.00 (the "CAP") and not less than $5.00 (the "FLOOR"), the Note
Stock Amount shall be equal to the sum of the Aggregate Conversion
Amount (as defined below) divided by the Exchange Price. The "EXCHANGE
PRICE" shall mean the average closing price per share of Xxxxxx Common
Stock on the New York Stock Exchange ("NYSE") for each trading day in
the calendar fourth quarter of 2003. The "AGGREGATE CONVERSION AMOUNT"
means the sum of the total obligations due under the Subordinated Debt,
being principal, accrued interest and accrued commitment fees (together
with accrued interest thereon), in each case to and including the
Closing Date, MINUS the Base Amount. The parties agree that, as of the
date of this Agreement, the Aggregate Conversion Amount would be
$3,973,926.27, consisting of $7,715,919.45 of principal, $566,538.74 of
accrued interest and $1,023,885.39 of accrued fees and $68,726.29
interest thereon, MINUS the Base Amount of $5,401,143.62.The parties
agree that the Exchange Price is $5.75640625.
(b) If the Exchange Price is less than $5.00, the Note Stock
Amount shall be equal to the sum of the Aggregate Conversion Amount
divided by $5.00.
(c) If the Exchange Price is greater than $7.00, the Note
Stock Amount shall be equal to the sum of the Aggregate Conversion
Amount divided by $7.00.
2.2 CALCULATION EXAMPLES. The following represent illustrative
examples of the calculations set forth in SECTION 2.1 based on a
hypothetical Aggregate Conversion Amount of $3,973,926.27 (assuming
$9,375,069.89 in total outstanding obligations under the Subordinated
Debt, MINUS the Base Amount of $5,401,143.62):
EXAMPLE OF SECTION 2.1(A): IF THE EXCHANGE PRICE
EQUALS $5.50, THEN THE NOTE STOCK AMOUNT WOULD EQUAL
722,532 SHARES OF XXXXXX COMMON STOCK
($3,973,926.27) DIVIDED BY $5.50).
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EXAMPLE OF SECTION 2.1(B): IF THE EXCHANGE PRICE EQUALS $4.00, THEN THE
NOTE STOCK AMOUNT WOULD EQUAL 794,785 SHARES OF XXXXXX COMMON STOCK
($3,973,926.27) DIVIDED BY THE FLOOR PRICE OF $5.00).
EXAMPLE OF SECTION 2.1(C): IF THE EXCHANGE PRICE EQUALS $8.00, THEN THE
NOTE STOCK AMOUNT WOULD EQUAL 567,703 SHARES OF XXXXXX COMMON STOCK
($3,973,926.27) DIVIDED BY THE CAP PRICE OF $7.00).
2.3 CONVERSION OF WARRANTS. On the Closing Date, the Warrants shall be
cancelled and converted into the right of Contrarian to receive the Warrant
Stock Amount. The "WARRANT STOCK AMOUNT" shall mean shares of Xxxxxx Common
Stock equal to (i) the Exchange Price MINUS the exercise price of each of the
Warrants, (ii) MULTIPLIED by the total number of Warrants at each such exercise
price, and (iii) DIVIDED by the Exchange Price.
For example, if the Exchange Price is $5.50, the exercise price of the
Warrants is $1.00 per share and there are 103,644 Warrants, the Warrant Stock
Amount would equal 84,799 shares of Xxxxxx Common Stock (($5.50 - $1.00) X
103,644/$5.50).
2.4 FRACTIONAL SHARES. No fraction of a share of Xxxxxx Common Stock
will be issued under this SECTION 2, but in lieu thereof Contrarian shall
receive an amount of cash equal to such fraction multiplied by the Exchange
Price.
SECTION 3. CONSUMMATION OF THE TRANSACTIONS; CLOSING DATE.
The consummation of the Exchange and the Warrant Conversion
contemplated herein (the "CLOSING") shall take place at the offices of
Xxxxxxxxxx Xxxxxxxx LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxx, on
or as soon as possible after January 14, 2004 (the "CLOSING DATE"); PROVIDED,
HOWEVER, that the Closing shall not occur until the conditions to closing set
forth in SECTIONS 7 and 8 shall have been satisfied or waived by the party or
parties entitled to the benefit thereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF CONTRARIAN.
Contrarian represents and warrants to Xxxxxx Industries that:
4.1 AUTHORITY. It has all necessary limited liability company power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby.
4.2 BINDING AGREEMENT; NO VIOLATION. This Agreement has been, and will
be as of the Closing Date, duly executed and delivered by Contrarian and
constitutes the legal, valid and binding obligation of Contrarian, enforceable
against it in accordance with the respective terms hereof. The execution and
delivery of this Agreement by Contrarian, and the consummation of the
transactions contemplated by this Agreement, will not violate any of the
organizational documents of Contrarian or result in a Conflict (as hereinafter
defined) with the provisions of any material Law or Order to which Contrarian is
a party or is bound.
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4.3 TITLE TO SUBORDINATED DEBT. All of the Notes owned by Contrarian
are held by Contrarian, free and clear of any Liens. Upon the parties' receipt
of all of the Closing deliverables set forth in SECTION 1, the obligations of
Xxxxxx Industries with respect to the portion of the Notes constituting the
Aggregate Conversion Amount will be extinguished, and all obligations under the
remaining Notes will be replaced with the obligations under the Tranche A Note
(subject to SECTION 10).
4.4 INVESTMENT REPRESENTATION. (a) The shares of Xxxxxx Common Stock
are being acquired for Contrarian's own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the United States Securities Act of 1933, as
amended (the "SECURITIES Act"), which is in violation of the Securities Act.
(b) Contrarian is an accredited investor and (i) has such
knowledge, sophistication and experience in business and financial
matters that it is capable of evaluating the merits and risks of its
investment in the shares of Xxxxxx Common Stock, and (ii) can bear the
economic risk of an investment in such shares and can afford a complete
loss of such investment.
(c) Contrarian acknowledges that (i) Xxxxxx
Industries has offered full access to all of the information
that would be necessary or appropriate to make an informed
investment decision with respect to the shares of Xxxxxx
Common Stock to be acquired by Contrarian under this Agreement
and (ii) Contrarian has refused such offers of access to any
information of a nonpublic nature.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF XXXXXX INDUSTRIES.
Xxxxxx Industries represents and warrants to Contrarian that:
5.1 CORPORATE ORGANIZATION. Xxxxxx Industries is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
5.2 CAPITAL STOCK. The shares of Xxxxxx Common Stock to be issued
hereunder have been and will at the Closing be duly authorized and validly
issued. All of the shares of Xxxxxx Common Stock to be issued hereunder will at
the Closing be fully paid and nonassessable. Upon delivery of the shares of
Xxxxxx Common Stock to Contrarian by the Transfer Agent as provided in SECTION
1, Contrarian will acquire good and valid title to the shares of Xxxxxx Common
Stock, free and clear of any Liens.
5.3 CORPORATE POWER AND AUTHORITY; BINDING AGREEMENT.
(a) Xxxxxx Industries has all necessary corporate power and
authority to execute and deliver this Agreement and a Registration
Rights Agreement (as hereinafter defined), to perform its obligations
hereunder and thereunder, and to consummate the Exchange, the Warrant
Conversion, the Note Agreement and the other transactions contemplated
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by this Agreement. The execution, delivery and performance by Xxxxxx
Industries of this Agreement and the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action
(including, without limitation, the approval of the Board) and no other
corporate proceedings on the part of Xxxxxx Industries are necessary to
authorize this Agreement, a Registration Rights Agreement or to
consummate the Exchange, the Warrant Conversion, the Note Agreement or
any other transactions contemplated by this Agreement.
(b) This Agreement has been duly executed and delivered by
Xxxxxx Industries and constitutes the legal, valid and binding
obligation of Xxxxxx Industries, enforceable against Xxxxxx Industries
in accordance with its terms.
5.4 NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated by this Agreement conflict
with, or will result in any violation or breach of or event of default under
(any such event, a "CONFLICT"), any provision of (i) the Charter, as amended, or
the Bylaws, as amended, of Xxxxxx Industries, (ii) any Law or Order, in each
case, applicable to Xxxxxx Industries or its respective properties or assets or
(iii) whether or not with notice or lapse of time, or both, any agreement,
indenture or instrument to which Xxxxxx Industries is a party or by which its
assets are bound.
5.5 OPINION OF FINANCIAL ADVISOR. Prior to the date hereof, the
Financial Advisor has delivered to the Board its oral opinion that, as of such
date and subject to customary assumptions, qualifications and limitations, the
terms of the Exchange are fair, from a financial point of view, to the
shareholders of Xxxxxx Industries other than "insiders" of Xxxxxx Industries as
defined in Section 16 of the Securities Exchange Act of 1934.
5.6 SOLVENCY. Xxxxxx Industries is, and after consummation of the
transactions contemplated by this Agreement will be, Solvent. "SOLVENT" as used
herein, means that Xxxxxx Industries is able to realize upon its assets and pay
its debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (ii) Xxxxxx Industries does not
intend to, and does not believe that it will, incur such debts or liabilities
beyond Xxxxxx Industries' ability to pay as such debts and liabilities mature in
their ordinary course, (iii) Xxxxxx Industries is not engaged in a business or a
transaction and is not about to engage in a business or a transaction, for which
Xxxxxx Industries' property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
Xxxxxx Industries is engaged or is to engage, (iv) the fair value of the
property of Xxxxxx Industries is greater than the total amount of liabilities,
including without limitation, contingent liabilities, of Xxxxxx Industries and
(v) the present fair salable value of the assets of Xxxxxx Industries is not
less than the amount that will be required to pay the probable liability of
Xxxxxx Industries on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
5.7 DISCLOSURE. Xxxxxx Industries hereby represents that all documents
filed by it with the Securities and Exchange Commission ("SEC") have contained
all material information required to be disclosed therein, and have not
contained any misstatements of a material fact or
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omitted to state any material fact necessary to make the statements set forth
therein not misleading.
5.8 NO CONFIDENTIAL INFORMATION. Xxxxxx Industries confirms that it has
offered, but has not provided, information to Contrarian that is not available
to the general public.
5.9 INDEBTEDNESS OUTSTANDING. Xxxxxx Industries issued $14,000,000.00
principal amount of notes under the Note Credit Agreement and, as of the date of
this Agreement, the outstanding principal amount of such is $13,849,086.18. True
and correct copies of the Note Credit Agreement and the Warrant Agreement have
been provided to Contrarian and such agreements have not been amended or
modified and remain in full force and effect. The exercise price and the number
of Warrant shares for which a Warrant is exercisable has not been adjusted
pursuant to the terms of the Warrant Agreement or otherwise.
SECTION 6. ADDITIONAL COVENANTS AND AGREEMENTS.
6.1 FURTHER ASSURANCES. Each party hereto, at the request of the other
party hereto, shall execute and deliver such other instruments of transfer,
conveyance, assignment or other documents and do and perform such other acts and
things as may be necessary or desirable for effecting completely and promptly
the consummation of the Exchange, the Warrant Conversion and the other
transactions contemplated hereby, including providing any documentation
requested by any third party lender; PROVIDED, HOWEVER, that nothing in this
SECTION 6.1 shall be construed to obligate any party to waive any of the closing
conditions set forth in SECTIONS 7 or 8 or to obligate Contrarian to incur any
expense or assume any obligation other than as otherwise provided in this
Agreement.
6.2 REGISTRATION RIGHTS. The parties shall proceed to negotiate a
registration rights agreement with respect to the shares of Xxxxxx Common Stock
to be issued hereunder (a "REGISTRATION RIGHTS AGREEMENT") that is mutually
satisfactory to the parties.
6.3 NOTE REPURCHASES, ETC. Xxxxxx Industries agrees that it will not
repurchase, directly or indirectly, any notes issued under the Note Credit
Agreement or any warrants issued under the Warrant Agreement other than on terms
substantially identical to those set forth in this Agreement, without the prior
written consent of Contrarian.
6.4 INDEMNITY. (a) Xxxxxx Industries shall indemnify, defend, and hold
Contrarian and its affiliates and their respective officers, directors, agents,
partners, members, affiliates and employees (collectively, "INDEMNITEES")
harmless from and against any liability, claim, cost, loss, judgment, damage or
expense (including reasonable attorneys' fees and expenses) that Indemnitees
incur or suffer as a result of, or arising out of (i) breach of any of Xxxxxx
Industries' representations, warranties, covenants or agreements in this
Agreement, (ii) any third party claim arising out of the actions or inactions of
Xxxxxx Industries in connection with this Agreement or the transactions
contemplated hereby or (iii) any payments, setoffs or recoupments suffered by
Contrarian as a result of Xxxxxx Industries not being Solvent as of the Closing.
This SECTION 6.4 is a continuing obligation, separate and independent from the
other obligations of the parties to this Agreement and survives termination of
this Agreement and it is not necessary for an
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Indemnitee to incur expense or make payment before enforcing a right of
indemnity conferred by this Agreement.
(b) With respect to any claim by a third party as to which
Contrarian is entitled to indemnification under SECTION 6.4(A)(II),
Xxxxxx Industries shall have the right to assume control of the defense
of such claim at its own expense, and Contrarian shall cooperate fully
with Xxxxxx Industries in the defense of such claim at the expense of
Xxxxxx Industries. If Xxxxxx Industries elects to assume control of the
defense of any third-party claim, Contrarian shall have the right to
participate in the defense of such claim and retain separate co-counsel
at its own expense.
6.5 NYSE LISTING. Xxxxxx Industries shall use its best efforts to have
the shares of Xxxxxx Common Stock to be issued to Contrarian hereunder be
approved for listing on the NYSE.
SECTION 7. CONDITIONS TO OBLIGATIONS OF EACH PARTY.
The respective obligations of each party hereto to consummate the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, by agreement of all the parties hereto (it being understood
that each such condition is solely for the benefit of the parties hereto and may
be waived in writing by their mutual agreement without notice, liability, or
obligation to any Person):
7.1 NO ORDER PREVENTING CONSUMMATION; ILLEGALITY. No Order issued by
any Governmental Authority (as hereinafter defined) or other Law preventing the
consummation of the transactions contemplated herein shall be in effect, nor
shall any proceeding brought by a Governmental Authority seeking any of the
foregoing be pending.
7.2 LITIGATION. There shall be no Action pending against Contrarian or
Xxxxxx Industries, its properties or any of its respective officers or
directors, arising out of, or in any way connected with the Exchange or the
other transactions contemplated by the terms of this Agreement.
7.3 NYSE LISTING. The shares of Xxxxxx Common Stock to be issued
hereunder shall have been approved for listing on the NYSE.
7.4 REGISTRATION RIGHTS AGREEMENT. The parties shall have entered into
and delivered executed counterparts to each other of a Registration Rights
Agreement mutually acceptable to the parties.
7.5 AMENDMENT TO NOTE CREDIT AGREEMENT. Xxxxxx Industries, Contrarian
and Harbourside Investments, LLLP shall have entered into and delivered executed
counterparts to each other of an amendment to the Note Credit Agreement in the
form attached hereto as EXHIBIT A (the "CREDIT AGREEMENT AMENDMENT").
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SECTION 8. ADDITIONAL CONDITIONS TO OBLIGATIONS OF CONTRARIAN. In
addition to the general closing conditions set forth in SECTION 7, the
obligations of Contrarian to consummate the transactions contemplated hereby
shall be subject to the following additional conditions:
8.1 COMPLIANCE WITH COVENANTS. Xxxxxx Industries shall have performed
or complied with all agreements and covenants required to be performed by it
under this Agreement at or prior to the Closing Date in all material respects
and all representations and warranties of Xxxxxx Industries set forth in this
Agreement shall be true and correct in all material respects.
8.2 OPINION. Contrarian shall have received an opinion from counsel of
Xxxxxx Industries, in form and substance reasonably acceptable to Contrarian and
its counsel, dated the Closing Date, covering the matters set forth in SECTIONS
5.1, 5.2, 5.3 and 5.4, including due authorization and delivery,
noncontravention and enforceability.
SECTION 9. TERMINATION.
9.1 TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
(a) at any time, by mutual written consent of Xxxxxx
Industries and Contrarian; or
(b) by Xxxxxx Industries or Contrarian, at any time after
January 31, 2004, if the Closing shall not have occurred on or prior to
such date; PROVIDED, HOWEVER, that the right to terminate this
Agreement under this SECTION 9.1(B) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been
the primary cause of, or resulted in, the failure of the Closing to
have occurred on or before such date.
9.2 EFFECT OF TERMINATION. Upon termination of this Agreement pursuant
to SECTION 9.1, this Agreement shall become void and there shall be no liability
on the part of Contrarian or Xxxxxx Industries, except as otherwise provided in
this Agreement. Notwithstanding the foregoing, nothing contained herein shall
relieve any party from liability for any willful breach of any covenant or
agreement in this Agreement or for the incorrectness of any representation or
warranty set forth in this Agreement.
SECTION 10. RIGHT TO RESCIND EXCHANGE AND WARRANT CONVERSION.
The parties acknowledge that Xxxxxx Industries intends to submit a
proposal to its shareholders seeking approval of the exchange of Subordinated
Debt and conversion of Warrants owned by Harbourside Investments, LLLP, which
exchanges will be on terms identical (except as provided in the Credit Agreement
Amendment) to the Exchange and Warrant Conversion contemplated herein (the
"HARBOURSIDE EXCHANGE PROPOSAL"). If the Harbourside Exchange Proposal is not
approved by the shareholders of Xxxxxx Industries at a properly called meeting,
then Contrarian shall have the right until 5 p.m., eastern time, on the fifth
(5th) business day after such failure to approve is made known to it, to
surrender to Xxxxxx Industries all (but not less than all) of the Xxxxxx Common
Stock received in the Exchange and Warrant Conversion, which Xxxxxx Industries
shall be obligated to accept, in exchange for Xxxxxx Industries issuing to
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Contrarian (x) an amended promissory note or notes in the form of the
Replacement Note under and as defined in the Note Credit Agreement in an
aggregate principal amount equal to the original Notes exchanged at the Closing
pursuant to SECTION 1(A) hereunder less any principal payments made after the
Closing (which amended Note shall preserve the holder's right to accrued but
unpaid interest) and (y) a warrant or warrants to purchase 103,644 shares of
Xxxxxx Common Stock on terms identical in all respects to the Warrants
surrendered at the Closing. Upon receipt of the stock certificates representing
the Xxxxxx Common Stock received in the Exchange and the Warrant Conversion,
Xxxxxx Industries shall promptly issue and deliver to Contrarian the note and
warrants described herein and the transactions consummated and deliveries made
at the Closing shall be void ab initio, and this Agreement shall immediately
terminate as if terminated by Contrarian pursuant to SECTION 9.1(B).
Notwithstanding anything to the contrary in this section, the right of
Contrarian to surrender the Xxxxxx Common Stock under this SECTION 10 shall not
be available to Contrarian if it (a) does not deliver the stock certificates
representing the Xxxxxx Common Stock within the five (5) business day period
specified above or (b) has pledged, assigned, or otherwise encumbered or
transferred any or all of the shares of Xxxxxx Common Stock that it received in
the Exchange or Warrant Conversion, which pledge remains in effect.
SECTION 11. MISCELLANEOUS.
11.1 PAYMENT OF EXPENSES. Except as otherwise specifically set forth
below in this SECTION 11.1, each party hereto shall pay its own fees and
expenses incident to preparing for, entering into, and carrying out this
Agreement, the Exchange and any other transactions contemplated hereby.
Notwithstanding the foregoing, Xxxxxx Industries shall pay on demand all fees
and expenses of Contrarian (including reasonable legal fees, consultant fees,
search fees, filing fees, documentation fees and travel expenses) incurred by
Contrarian in connection with the origination, structuring and negotiation of
the Tranche A Notes and the Tranche B Subordinated Secured Notes to be issued to
Harbourside Investments, LLLP and the transactions contemplated thereby, whether
or not the transaction closes, subject to a cap of $50,000.
11.2 PUBLICITY AND REPORTS. Contrarian shall not issue any press
release or otherwise make any public statement or make any other public (or
non-confidential) disclosure (regardless of whether it is in response to an
inquiry) regarding the terms of this Agreement, the Exchange or the transactions
contemplated hereby, except as required by Law. The parties hereto acknowledge
that Xxxxxx Industries is a publicly traded company and, as such, will be
entitled to make such public statements or disclosures as it reasonably believes
to be required by applicable Law, including the rules of the NYSE.
11.3 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, in whole or in part, by
operation of law or otherwise by either party hereto without the prior written
consent of the other party hereto, except that Contrarian may assign this
Agreement in connection with an assignment of the Notes to a third party as long
as the assignment provisions of the Notes are complied with (or properly waived)
in connection with such assignment.
11.4 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be
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performed in the State of New York, without regard to any laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
11.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by telecopy), all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
11.6 AMENDMENT. Except as is otherwise required by applicable Law, this
Agreement may be amended by the parties hereto at any time only by execution of
an instrument in writing signed on behalf of each of the parties hereto.
11.7 PARTIES IN INTEREST. No provisions of this Agreement are intended,
nor shall be interpreted, to provide or create any third party beneficiary
rights or any other rights of any kind in any client, customer, affiliate,
partner of any party hereto or any other Person unless specifically provided
otherwise herein.
11.8 NOTICES. Any notice or communication required or permitted
hereunder shall be in writing, shall be effective when received, and shall in
any event be deemed to have been received (a) when delivered, if delivered
personally or by commercial delivery service, (b) one (1) business day after the
business day of deposit with FedEx or similar overnight courier for next day
delivery (or two (2) business days after such deposit if deposited for second
business day delivery), if delivered by such means, or (c) one (1) business day
after delivery by facsimile transmission with copy by U.S. Mail, if sent via
facsimile plus mail copy (with acknowledgment of complete transmission), to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to Xxxxxx Industries, addressed to:
Xxxxxx Industries, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: A. Xxxxxxx Xxxxxxxx, III, Chairman
of the Special Committee
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Contrarian, addressed to:
Contrarian Funds, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
11.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral, including the Xxxxxx
Industries, Inc. Binding Restructuring Agreement executed by Xxxxxx Industries,
Contrarian and Harbourside Investments, LLLP on December 24, 2003, among the
parties with respect to the subject matter hereof and is not intended to confer
upon any other person any rights or remedies hereunder.
11.10 HEADINGS. The section headings and subheadings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.11 SEVERABILITY. If any provision of this Agreement is held or
declared by a court of competent jurisdiction to be illegal, invalid or
unenforceable under any present or future Law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance herefrom and
(d) in lieu of such illegal, invalid or unenforceable provision, there will
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be added automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
11.12 CERTAIN DEFINITIONS. Capitalized terms that are not defined in
other Sections of this Agreement shall have the following meanings:
"GOVERNMENTAL APPROVALS" shall mean any notices, reports,
declarations or other filings to be made, or any Permits to be obtained
from, any Governmental Authority;
"GOVERNMENTAL AUTHORITY" shall mean any supranational,
national, federal, state, municipal, local or foreign government, any
court, tribunal, arbitrator, administrative agency, commission or other
governmental official, authority or instrumentality, in each case
whether domestic or foreign, any stock exchange or similar
self-regulatory organization or any quasi-governmental or private body
exercising any regulatory, taxing or other governmental or
quasi-governmental authority;
"LAW" shall mean all laws, statutes, constitutions and
ordinances, and all regulations, rules and other pronouncements issued,
enacted, adopted, promulgated, implemented or otherwise put into effect
by or under the authority of any Governmental Authority having the
effect of law of the United States, any foreign country, or any
domestic or foreign state, province, commonwealth, city, country,
municipality, territory, protectorate, possession or similar
instrumentality, or any Governmental Authority thereof;
"LIEN" shall mean any pledge, lien, collateral assignment,
security interest, deed of trust, mortgage, title retention device,
collateral assignment, claim, license or other contractual restriction
(including any restriction on the transfer of any asset, the receipt of
income derived from any asset or on the possession, exercise or
transfer of any other attribute of ownership of any asset), conditional
sale or other security arrangement, or any charge, adverse claim of
title, ownership or right to use or any other encumbrance of any kind
whatsoever;
"ORDER" shall mean any order, writ, judgment, decree,
injunction, ruling, directive or other requirement of any Governmental
Authority (in each case, whether preliminary or final); and
"PERSON" shall mean any individual, a general or limited
partnership, a corporation, a trust, a joint venture, an unincorporated
organization, a limited liability entity, any other entity and any
Governmental Authority.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date and year first above written.
XXXXXX INDUSTRIES:
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and Co-Chief
Executive Officer
CONTRARIAN:
CONTRARIAN FUNDS, LLC
By: /s/ Xxx X. Xxxxx
----------------------------------
Name: Xxx X. Xxxxx
--------------------------------
Title: Managing Member
-------------------------------
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EXHIBIT A
AMENDMENT TO NOTE CREDIT AGREEMENT (INCLUDING FORM OF TRANCHE A NOTE)
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