EXHIBIT 99.2
EIGHTH AMENDMENT TO CREDIT AGREEMENT AND AMENDMENT TO
FORBEARANCE AGREEMENT
This Eighth Amendment to Credit Agreement and Amendment to Forbearance
Agreement, dated as of November 6, 2002 (this "Amendment"), is among XXXX
INDUSTRIES, INC., a Delaware corporation (the "Parent"), each of the
Parent's domestic Subsidiaries, as borrowers (together with the Parent,
collectively the "Borrowers"), the Parent and each of the Parent's domestic
Subsidiaries, as guarantors (the "Guarantors" and each a "Guarantor", and
together with the Borrowers, collectively the "Credit Parties" and each a
"Credit Party"), LASALLE BANK NATIONAL ASSOCIATION, as lender ("LaSalle"),
NATIONAL CITY BANK, as lender ("NCB"), U.S. Bank (successor by merger to
Firstar Bank), as lender ("US Bank"), Comerica Bank, as lender
("Comerica"), Associated Bank, N.A., as lender ("Associated Bank", and
together with LaSalle, NCB, US Bank and Comerica, collectively the
"Lenders"), LaSalle, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), and NCB, as syndication agent for
the Lenders (in such capacity, the "Syndication Agent", and together with
the Administrative Agent, the "Agents"). Capitalized terms used in this
Amendment and not otherwise defined have the meanings assigned to such
terms in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS:
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1. The Credit Parties and the Lenders are parties to the Credit
Agreement dated as of March 8, 2001 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), under which the Lenders provided the Borrowers with, among
other things, a $53,000,000 credit facility.
2. The Credit Parties and the Lenders are parties to the Forbearance
Agreement dated as of April 25, 2002 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the
"Forbearance Agreement"), pursuant to which the Lenders agreed to forbear
until November 8, 2002 from exercising their rights under the Credit
Agreement related to the Credit Parties' failure to comply with Section
10.6(E) of the Credit Agreement.
3. The Lenders have extended credit to the Borrowers under the Credit
Agreement as evidenced by, among other things, the Notes evidencing the
Revolving Loan dated as of June 30, 2002 and made by the Borrowers in favor
of the Lenders in the aggregate principal amount of $23,000,000 (the
"Existing Revolving Loan Notes") and the Notes evidencing the Term Loan
dated as of January 8, 2002 and made by the Borrowers in favor of the
Lenders in the aggregate principal amount of $30,000,000 (the "Existing
Term Loan Notes").
4. The Credit Parties and the Lenders desire to amend the Credit
Agreement to, among other things, (a) modify certain covenants of the
Credit Agreement, (b) modify the Revolving Commitment Amount, (c) modify
the Revolving Commitment Availability, (d) modify the Borrowing Base and
(e) amend the payment dates and amounts required under the Existing Term
Loan Notes, all on the terms, and subject to the conditions, of this
Amendment.
5. Cumulatively, for the four consecutive months ending April 30,
2002, the Credit Parties failed to comply with Section 10.6(E) of the
Credit Agreement. On such date, this violation constituted an Event of
Default under the Credit Agreement, and such Event of Default has been
existing since April 30, 2002.
6. The Credit Parties have requested that the Lenders extend the
forbearance period under the Forbearance Agreement until January 31, 2003,
during which period the Lenders will forbear from exercising their rights
under the Credit Agreement and the other Loan Documents with respect to
such Event of Default, and the Lenders have agreed to such request subject
to the terms and conditions of this Amendment.
AGREEMENT:
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In consideration of the mutual agreements contained in this Amendment,
and other good and valuable consideration the receipt and sufficiency of
which are acknowledged, the parties to this Amendment agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
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1.1 On the date this Amendment becomes effective, after satisfaction
by the Credit Parties of each of the conditions set forth in Section 7 (the
"Effective Date"), Section 1.1 of the Credit Agreement is amended by
deleting the definition of "Borrowing Base" in its entirety and replacing
it as follows:
Borrowing Base means, at any time, an amount equal to the sum of
(i) 85% of the face amount (less discounts, credits, allowances and
payments that may be taken by or granted to Account Debtors of the
Eligible Accounts Receivable in connection with such Accounts) of all
existing Eligible Accounts Receivable that are set forth in the
Borrowing Base Certificate most recently delivered by the Parent on
behalf of the Borrowers to the Administrative Agent, which amount will
be reduced by 100% of the face amount of all payments that any
Borrower has received on or in connection with the Eligible Accounts
Receivable since the date of such Borrowing Base Certificate; plus
(ii) 50% of the Value of Eligible Inventory, as set forth in the
Borrowing Base Certificate then most recently delivered by the Parent
on behalf of the Borrowers to the Administrative Agent; provided that,
in determining the Borrowing Base, the maximum amount contributed
pursuant to this clause (ii) shall not exceed (a) for the period
through and including November 29, 2002, $10,000,000, (b) for the
period commencing on November 30, 2002 through and including December
30, 2002, $9,500,000, and (c) for the period commencing on December
31, 2002 and continuing thereafter, $7,500,000; plus, (iii) for the
period commencing on September 15, 2002 and continuing thereafter, (a)
for the period through and including October 31, 2002, $1,500,000, (b)
for the period commencing on November 1, 2002 through and including
November 30, 2002, $2,750,000, (c) for the period commencing on
December 1, 2002 through and including December 30, 2002, $3,500,000,
(d) for the period commencing on December 31, 2002 through and
including January 15, 2003, $2,500,000, (e) for the period commencing
on January 16, 2003 through and including January 31, 2003,
$2,000,000, and (f) for the period commencing on February 1, 2003 and
continuing thereafter, $0; provided that, notwithstanding anything in
this Agreement to the contrary, any of the Agents may elect (if no
Event of Default exists, based on the results of a field audit or, if
an Event of Default exists, at any time), in its commercially
reasonable discretion, to change the foregoing method of calculating
the Borrowing Base by reducing advances against Eligible Accounts
Receivable or Eligible Inventory or by reducing the amount provided
for under clause (iii) above.
1.2 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Revolving Commitment Amount"
in its entirety and replacing it as follows:
Revolving Commitment Amount means, (i) for the period through and
including November 15, 2002, $21,500,000, (ii) for the period
commencing on November 16, 2002 through and including December 15,
2002, $20,000,000, (iii) for the period commencing on December 16,
2002 through and including December 30, 2002, $18,000,000, and (iv)
for the period commencing on December 31, 2002 and continuing
thereafter, $16,000,000, as such amount may be reduced from time to
time pursuant to Section 6.1.
1.3 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Revolving Commitment
Availability" in its entirety and replacing it as follows:
Revolving Commitment Availability means the Revolving Commitment
Amount.
1.4 On the Effective Date, Section 2.1 of the Credit Agreement is
amended by deleting subsection (C) from Section 2.1 in its entirety and
replacing it as follows:
(C) Letter of Credit Commitment. (i) The Issuing Bank will issue
letters of credit, in each case containing such terms and conditions
as are permitted by this Agreement and are reasonably satisfactory to
the Issuing Bank (each, a "Letter of Credit"), at the request of and
for the joint and several account of the Borrowers from time to time
before the Revolver Termination Date and (ii) as more fully set forth
in Section 2.3(B), each Lender agrees to purchase a participation in
each such Letter of Credit; provided that, the aggregate Stated Amount
of all Letters of Credit shall not at any time exceed $1,250,000 for
Letters of Credit issued solely for bonding purposes and $3,750,000
for all other Letters of Credit.
1.5 On the Effective Date, Section 2.3 of the Credit Agreement is
amended by deleting subsection (A) from Section 2.3 in its entirety and
replacing it as follows:
(A) Letter of Credit Applications. The Parent, on behalf of the
Borrowers, shall give notice to the Administrative Agent and the
Issuing Bank of the proposed issuance of each Letter of Credit on a
Business Day that is at least three Business Days (or such lesser
number of days as the Administrative Agent and the Issuing Bank shall
agree in any particular instance) prior to the proposed date of
issuance of such Letter of Credit. Each such notice shall be
accompanied by a Letter of Credit Application, completed and duly
executed by the Parent on behalf of the Borrowers and in all respects
reasonably satisfactory to the Administrative Agent and the Issuing
Bank, together with such other documentation as the Administrative
Agent or the Issuing Bank may request in support thereof, it being
understood that each Letter of Credit Application shall specify, among
other things, the date on which the proposed Letter of Credit is to be
issued, the expiration date of such Letter of Credit (which shall not
be later than January 31, 2003) and whether such Letter of Credit is
to be transferable in whole or in part. So long as the Issuing Bank
has not received written notice that the conditions precedent set
forth in Section 11 with respect to the issuance of such Letter of
Credit have not been satisfied, the Issuing Bank shall issue such
Letter of Credit on the requested issuance date. The Issuing Bank
shall promptly advise the Administrative Agent of the issuance of each
Letter of Credit and of any amendment thereto, extension thereof or
event or circumstance changing the amount available for drawing
thereunder. In the event of any inconsistency between the terms of any
Letter of Credit Application and the terms of this Agreement, the
terms of this Agreement shall control.
1.6 On the Effective Date, Section 3.1 of the Credit Agreement is
amended by deleting Section 3.1 in its entirety and replacing it as
follows:
3.1 Notes. The Loans of each Lender shall be evidenced by a
promissory note (each, a "Note") substantially in the form set forth
in Exhibits A-1 and A-2, with appropriate insertions, payable to the
order of such Lender in a face principal amount equal to the sum of
such Lender's Percentage of the Revolving Commitment Amount plus the
principal amount of such Lender's Term Loan. Each Note shall be
payable to the order of the applicable Lender in an amount equal to
the aggregate unpaid principal amount of all of such Lender's Loans,
as follows:
(A) each Revolving Loan of such Lender shall be repaid in full
on the Revolver Termination Date; and
(B) each Term Loan of such Lender shall be repaid in (i) monthly
installments on the first Business Day of each month
commencing with the month ending January 31, 2002 through
and including the month ending November 30, 2002, with such
installments to be equal to such Lender's Percentage of
$500,000, (ii) an installment on the first Business Day of
the month ending December 31, 2002, with such installment to
be equal to such Lender's Percentage of $1,500,000, (iii) an
installment on the first Business Day of the month ending
January 31, 2003, with such installment to be equal to such
Lender's Percentage of $2,000,000, (iv) monthly installments
on the first Business Day of each month commencing with the
month ending February 28, 2003 and continuing thereafter,
with such installments to be equal to such Lender's
Percentage of $500,000, and (v) a final installment on June
30, 2003 in an amount equal to such Lender's Percentage of
the remaining aggregate outstanding amount of the Term
Loans; provided that, each installment of the Term Loan
payments under clauses (i), (ii), (iii) and (iv) above may
be repaid on the last Business Day of such month when due
if, upon the prior request of the Borrowers, each Agent, in
its commercially reasonable discretion, consents to the
repayment of such installment on the last Business Day of
such month.
1.7 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by adding new subsection (I) of Section 10.6 as follows:
(I) Cumulative Sales. Not permit the aggregate consolidated
cumulative sales of the Parent and its Subsidiaries, based on the
financial budget of the Credit Parties delivered to the Lenders, to be
less than, (i) for the two month period ending on November 30, 2002,
$13,200,000, and (ii) for the three month period ending December 31,
2002, $18,100,000.
1.8 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by adding new subsection (J) of Section 10.6 as follows:
(J) Cumulative Collections. Not permit the aggregate consolidated
cumulative collections on the Notes from any source whatsoever made by
the Borrowers to the Administrative Agent, based on the financial
budget of the Credit Parties delivered to the Lenders, to be less
than, (i) for the two month period ending on November 30, 2002,
$17,100,000, and (ii) for the three month period ending December 31,
2002, $25,800,000.
1.9 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by adding new subsection (K) of Section 10.6 as follows:
(K) Loan Disbursements by the Lenders. Not permit the aggregate
consolidated cumulative Loan disbursements to the Borrowers by the
Lenders, based on the financial budget of the Credit Parties delivered
to the Lenders, to exceed, (i) for the two month period ending on
November 30, 2002, $16,900,000, and (ii) for the three month period
ending December 31, 2002, $23,100,000.
SECTION 2. AMENDMENT TO EXISTING TERM LOAN NOTES.
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On the Effective Date, the Existing Term Loan Notes are amended by
deleting the second paragraph of each Existing Term Loan Note and replacing
it as follows:
Unless otherwise paid sooner under the provisions of Section 6.2
or Section 12.2 of the Credit Agreement, the principal indebtedness
represented by this Note is payable in accordance with and under the
provisions of the Credit Agreement. No portion of the indebtedness
represented by this Note that has been repaid may be reborrowed.
SECTION 3. ACKNOWLEDGMENT OF THE BORROWER.
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3.1 Outstanding Balance. As of the date of this Amendment, the Credit
Parties acknowledge and agree that the Borrowers owe the Lenders an
aggregate principal amount of $36,710,134.31 of under the Credit Agreement
and the other Loan Documents, plus accrued and unpaid interest, fees and
other expenses (if any). The Borrowers have made all payments under the
Credit Agreement and the other Loan Documents required to be made as of the
date hereof.
3.2 Default. The Credit Parties acknowledge that an Event of Default
has occurred and is continuing under Section 12.1(D) of the Credit
Agreement due to the Credit Parties' violation of the financial covenant
set forth in Section 10.6(E) of the Credit Agreement for the four
consecutive months ending April 30, 2002 (the "Existing Default").
SECTION 4. FORBEARANCE.
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4.1 Forbearance. During the Forbearance Period (as defined below), the
Lenders will not exercise any of their rights or remedies under the Credit
Agreement, the Loan Documents or applicable law with respect to the
Existing Default and the financial covenants set forth in Sections 10.6(A),
(B), (C), (D) and (F) of the Credit Agreement. For purposes of this
Amendment, "Forbearance Period" means the period commencing on the
Effective Date and ending on the earlier of (x) January 31, 2003 and (y)
the date the Forbearance Period is terminated upon the occurrence of any of
the events described in Section 4.6 (the "Termination Date").
4.2 Eurodollar Loan Limitations. Notwithstanding the terms of the
Credit Agreement, the Borrowers acknowledge and agree that, during the
Forbearance Period, the Borrowers may only request a Eurodollar Loan
borrowing pursuant to Section 2.2(B) of the Credit Agreement, or request a
conversion into or a continuation of a Eurodollar Loan pursuant to Section
2.2(D) of the Credit Agreement, with an Interest Period of one month;
provided that, during the Forbearance Period, the Borrowers may not select
any Interest Period for a Eurodollar Loan that would extend beyond the
Forbearance Period
4.3 Interest Rates. Notwithstanding the terms of the Credit Agreement,
the Borrowers acknowledge and agree that, during the Forbearance Period,
the Borrowers shall pay interest on the unpaid principal amount of each
Loan (a) at all times while such Loan is a Base Rate Loan at a rate per
annum equal to the sum of the Base Rate from time to time in effect plus
1.75% and (b) at all times while such Loan is a Eurodollar Loan at a rate
per annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) plus
4.00%.
4.4 Daily Borrowing Base Certificates. Notwithstanding the terms of
the Credit Agreement, the Credit Parties acknowledge and agree that, during
the Forbearance Period and continuing thereafter until further notice by
the Administrative Agent, the Credit Parties will furnish to the
Administrative Agent and each Lender, by 1:00 P.M. (Chicago, Illinois time)
of each Business Day, a Borrowing Base Certificate, in form reasonably
satisfactory to the Agents, dated as of the end of the immediately
preceding Business Day and executed by a Responsible Officer of the Parent
on behalf of the Credit Parties. Any failure of the Credit Parties to
provide any Borrowing Base Certificate as provided in this Section 4.4
shall constitute an Event of Default under the Credit Agreement.
4.5 Monthly Telephonic Updates. Notwithstanding the terms of the
Credit Agreement, the Credit Parties acknowledge and agree that, during the
Forbearance Period and continuing thereafter until further notice by the
Administrative Agent, the Credit Parties shall conduct telephonic updates
with the Administrative Agent and the Lenders, once a month, at such times
as the Administrative Agent or any Lender shall reasonably request, to
discuss financial or other matters of the Credit Parties. Any failure of
the Credit Parties to conduct monthly telephonic updates as provided in
this Section 4.5 shall constitute an Event of Default under the Credit
Agreement.
4.6 Termination of Forbearance. Upon the occurrence of any Termination
Event (as defined below) and at any time after such occurrence during which
a Termination Event is continuing, the Agents are entitled to, without
prior notice to the Credit Parties, immediately terminate the Forbearance
Period, unless such Termination Event is an Event of Default described in
Section 12.1(C) of the Credit Agreement, in which case the Forbearance
Period automatically terminates without demand or notice of any kind. For
purposes of this Amendment, "Termination Event" means:
(A) the failure of the Credit Parties to provide an asset
disposition plan of the Credit Parties and its Subsidiaries to the
Administrative Agent and each of the Lenders, in form and substance
reasonably satisfactory to the Required Lenders, on or before December
1, 2002, which asset disposition plan shall outline, among other
things, the sale of substantially all of the assets of the Credit
Parties and its Subsidiaries;
(B) the occurrence of an Event of Default under the Credit
Agreement (other than the Existing Default or the occurrence of a
financial covenant default that may arise under Section 10.6(A), (B),
(C), (D) or (F) of the Credit Agreement); or
(C) any representation or warranty made by the Credit Parties
under this Amendment or any agreement, instrument or other document
executed or delivered by the Credit Parties in connection with this
Amendment is untrue or incorrect in any respect when made or any
schedule, certificate, statement, report, financial data, notice or
writing furnished at any time by the Credit Parties to the Agents or
any Lender is untrue or incorrect in any respect on the date as of
which the facts set forth therein are stated or certified.
4.7 Effect at End of Forbearance Period. On the Termination Date, the
Existing Default will be deemed to exist and, without regard to any matters
transpiring during the Forbearance Period or the financial condition or
prospects of the Credit Parties as of such date, the Agent and each Lender
shall be fully entitled to exercise any rights and remedies they may have
under the Credit Agreement, the other Loan Documents or applicable law.
4.8 ACKNOWLEDGMENT. THE CREDIT PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE
THAT THE FORBEARANCE PROVISION SET FORTH IN SECTION 4.1 IS EFFECTIVE ONLY
DURING THE FORBEARANCE PERIOD AND THAT, AFTER THE TERMINATION DATE, THE
CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND THE LENDERS WILL BE FULLY
ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY
MATTERS TRANSPIRING DURING THE FORBEARANCE PERIOD OR THE FINANCIAL
CONDITION OR PROSPECTS OF THE CREDIT PARTIES. THE CREDIT PARTIES UNDERSTAND
THAT THE LENDERS ARE EXPRESSLY RELYING ON THE TERMS OF THIS SECTION 4.8 AND
WOULD NOT HAVE ENTERED INTO THIS AMENDMENT BUT FOR THE CREDIT PARTIES'
ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION 4.8.
4.9 No Waiver. Nothing in this Amendment shall in any way be deemed to
be (a) a waiver of any Event of Default including the Existing Default or
(b) an agreement to forbear from exercising any remedies with respect to
any Event of Default except as specifically set forth in Section 4.1.
SECTION 5. FURTHER ASSURANCES OF THE BORROWERS.
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The Credit Parties agree that at any time and from time to time, at
the cost and expense of the Credit Parties, the Credit Parties will (a)
execute and deliver all further instruments and documents, and take all
further action, that may be reasonably necessary to complete the
transactions contemplated by this Amendment and (b) cooperate fully with
the Agents' or any Lender's personnel and representatives with respect to
any reasonable request for information by such personnel and
representatives.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
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To induce the Lenders to enter into this Amendment, the Credit Parties
represent and warrant to the Lenders that:
6.1 Due Authorization; No Conflict; No Lien; Enforceable Obligation.
The execution, delivery and performance by each Credit Party of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental,
regulatory or other approvals (if any is required), do not and will not
contravene or conflict with any provision of (a) any law, (b) any judgment,
decree or order or (c) its articles or certificate of incorporation, bylaws
or trust documents and do not and will not contravene or conflict with, or
cause any lien to arise under, any provision of any agreement or instrument
binding upon any Credit Party or upon any of its property. This Amendment,
the Credit Agreement, as heretofore amended and as amended by this
Amendment, and the Notes, as amended by this Amendment, are the legal,
valid and binding obligations of each Credit Party, enforceable against it
in accordance with its respective terms.
6.2 Representations and Warranties; Default. As of the Effective Date,
except for those representations or warranties specifically made as of
another date or relating to the Existing Default or specifically relating
to Section 9.5 of the Credit Agreement, the representations and warranties
of the Credit Parties contained in the Credit Agreement are true and
correct. As of the Effective Date, except for the Existing Default and
except for any Default or Event of Default that may have occurred under
Section 12.1(J) of the Credit Agreement, no Default or Event of Default has
occurred and is continuing.
SECTION 7. CONDITIONS PRECEDENT.
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Notwithstanding any other provision contained in this Amendment, the
effectiveness of this Amendment and the obligation of the Lenders to waive
the Existing Default contemplated by this Amendment are subject to the
following:
7.1 Documents and Fees. The Administrative Agent has received all of
the following, each duly executed and dated, or received, by such date as
is satisfactory to the Agents and, if applicable, in form and substance
satisfactory to the Agents:
(A) Eight Amendment to Credit Agreement and Amendment to
Forbearance Agreement. This Amendment;
(B) Consents. Certified copies of all documents evidencing any
necessary corporate consents and governmental approvals, if
any, with respect to this Amendment;
(C) Costs and Expenses. All reasonable out-of-pocket costs and
expenses to the Agents, including the reasonable fees and
out-of-pocket charges of counsel for the Agents;
(D) Amendment and Forbearance Fee. A fee to the Administrative
Agent by the Borrowers for the account of each Lender in the
amount equal to the product of each such Lender's Percentage
times $106,250 required pursuant to the Seventh Amendment to
Credit Agreement and Amendment to Forbearance Agreement
dated as of August 29, 2002. Additionally, the Borrowers
hereby agree and acknowledge that the Borrowers shall pay a
fee to the Administrative Agent for the account of each
Lender party to this Amendment in the amount equal to the
product of each such Lender's Percentage times $500,000 in
two installments, payable (i) on or before November 1, 2002,
in the amount of $125,000 and (ii) on or before December 31,
2002 in the amount of $375,000; provided that, if the
aggregate amount of (i) the Revolving Commitment Amount plus
(ii) the aggregate principal amount of all outstanding Term
Loans does not exceed $23,500,000 on December 31, 2002, then
the Borrowers shall not be required to pay the fee required
under clause (ii) above; and provided, further, that, the
Borrowers hereby acknowledge and agree that the failure to
pay the fees required hereunder to the Administrative Agent
for the account of each Lender party to this Amendment shall
constitute an Event of Default under the Credit Agreement;
and
(E) Other. Such other documents as the Administrative Agent may
reasonably request.
7.2 Representations and Warranties. The representations and warranties
of the Credit Parties set forth in this Amendment are true and correct.
SECTION 8. MISCELLANEOUS.
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8.1 Captions. The recitals to this Amendment (except for definitions)
and the section captions used in this Amendment are for convenience only
and do not affect the construction of this Amendment.
8.2 Governing Law; Severability. THIS AMENDMENT IS A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. Wherever
possible, each provision of this Amendment will be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Amendment is prohibited by or invalid under such law,
such provision will be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
8.3 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each
such counterpart will be deemed to be an original, but all such
counterparts together constitute but one and the same Amendment.
8.4 Successors and Assigns. This Amendment is binding upon the Credit
Parties, the Lenders and their respective successors and assigns, and
inures to the sole benefit of the Credit Parties, the Lenders and their
successors and assigns. The Credit Parties have no right to assign their
rights or delegate their duties under this Amendment.
8.5 Continued Effectiveness. Notwithstanding anything contained in
this Amendment, the terms of this Amendment are not intended to and do not
serve to effect a novation as to the Credit Agreement or any other Loan
Document. The parties to this Amendment expressly do not intend to
extinguish the Credit Agreement or any other Loan Document. Instead, the
parties to this Amendment expressly intend to reaffirm the indebtedness
created under the Credit Agreement and the other Loan Documents. The Credit
Agreement and the other Loan Documents remain in full force and effect and
the terms and provisions of the Credit Agreement and the other Loan
Documents are ratified and confirmed.
8.6 Indemnification. The Lenders shall indemnify upon demand the
Administrative Agent and its directors, officers, employees and agents (to
the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), pro rata, from and
against any and all actions, causes of actions, suits, losses, liabilities,
damages and related expenses, including reasonable attorneys' fees and
charges and allocated costs of staff counsel, of any liability of the
Administrative Agent to any independent auditor related to any tax-related
services provided by such independent auditor on behalf of the
Administrative Agent and the Lenders; provided that, no Lender shall be
liable for any payment to the Administrative Agent of any portion of the
Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Agents upon demand for their ratable share of
any costs or out-of-pocket expenses (including reasonable fees of attorneys
for the Administrative Agent (including the allocable costs of internal
legal services and all disbursements of internal counsel)) incurred by the
Administrative Agent in connection with the preparation, execution,
delivery, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, the Credit Agreement, any
other Loan Document or any document contemplated by or referred to therein,
to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrowers. The undertaking in this Section
8.6 shall survive repayment of the Loans, cancellation of the Notes,
expiration or termination of the Letters of Credit, any foreclosure under,
or any modification, release or discharge of, any or all of the Collateral
Documents, any termination of the Credit Agreement and the resignation or
replacement of the Administrative Agent.
8.7 Revival of Obligations. If all or any part of any payment under or
on account of the Credit Agreement, the other Loan Documents, this
Amendment or any agreement, instrument or other document executed or
delivered by the Credit Parties in connection with this Amendment is
invalidated, set aside, declared or found to be void or voidable or
required to be repaid to the issuer or to any trustee, custodian, receiver,
conservator, master, liquidator or any other person pursuant to any
bankruptcy law or pursuant to any common law or equitable cause then, to
the extent of such invalidation, set aside, voidness, voidability or
required repayment, such payment would be deemed to not have been paid, and
the obligations of the Credit Parties in respect thereof shall be
immediately and automatically revived without the necessity of any action
by the Lenders.
8.8 References. From and after the Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein",
or words of like import, and each reference in the Credit Agreement or any
other Loan Document to the Credit Agreement, the Notes or to any term,
condition or provision contained "thereunder", "thereof", "therein", or
words of like import, mean and are a reference to the Credit Agreement or
the Notes (or such term, condition or provision, as applicable) as amended,
supplemented, restated or otherwise modified by this Amendment.
8.9 Costs, Expenses and Taxes. The Credit Parties affirm and
acknowledge that Section 15.5 of the Credit Agreement applies to this
Amendment and the transactions and agreements and documents contemplated
under this Amendment.
8.10 Waiver of Jury Trial. Each of the Credit Parties, the Agents and
the each Lender waives any right to a trial by jury in any action or
proceeding to enforce or defend any rights under this Agreement, and agrees
that any such action or proceeding shall be tried before a court and not
before a jury.
8.11 WAIVER OF CLAIMS. THE CREDIT PARTIES, IN EVERY CAPACITY,
INCLUDING, BUT NOT LIMITED TO, AS SHAREHOLDERS, PARTNERS, OFFICERS,
DIRECTORS, INVESTORS AND/OR CREDITORS OF ANY CREDIT PARTY, OR ANY ONE OR
MORE OF THEM, HEREBY WAIVE, DISCHARGE AND FOREVER RELEASE EACH AGENT AND
EACH LENDER AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS,
STOCKHOLDERS AND SUCCESSORS AND ASSIGNS FROM AND OF ANY AND ALL KNOWN
CLAIMS, CAUSES OF ACTION, DEFENSES, COUNTERCLAIMS OR OFFSETS AND/OR
ALLEGATIONS THE CREDIT PARTIES MAY HAVE OR MAY HAVE MADE OR THAT ARE BASED
ON FACTS OR CIRCUMSTANCES OF WHICH ANY CREDIT PARTY HAS KNOWLEDGE ARISING
AT ANY TIME UP THROUGH AND INCLUDING THE DATE OF THIS AGREEMENT AGAINST ANY
OR ALL OF ANY AGENT, ANY LENDER, OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, ATTORNEYS, STOCKHOLDERS AND SUCCESSORS AND ASSIGNS.
[Balance of page intentionally left blank.]
Delivered at Chicago, Illinois, as of the date and year first above
written.
CREDIT PARTIES:
XXXX INDUSTRIES, INC.
XXXX INSTALLATION SERVICES, INC.
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX PRODUCTS, INC.
XXXX CONSTRUCTION, INC.
FOLDING CARRIER CORP.
XXXX FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By: /s/ Xxxx Xxx
----------------------------------------
Name: Xxxx Xxx
Title: Vice President
(for each of the foregoing entities)
ADMINISTRATIVE AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SYNDICATION AGENT:
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
U.S. BANK
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ASSOCIATED BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
