Exhibit 10.21
XXXXXX ASSOCIATES LLC
SEVENTH AMENDMENT TO REVOLVING AND TERM CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Bank of America, N.A.
Ladies and Gentlemen:
The undersigned, Xxxxxx Associates LLC, an Illinois limited liability
company (the "Borrower"), refers to the Revolving and Term Credit Agreement
dated as of May 28, 1996, as amended and currently in effect among the Borrower,
Xxxxxx Trust and Savings Bank, individually ("Xxxxxx") and as Agent ("Agent")
and Bank of America, N.A. ("Bank of America") (along with Xxxxxx Trust and
Savings Bank in its capacity as a lender, collectively the "Lenders") (as
heretofore amended, the "Credit Agreement "). All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement.
On or prior to the date hereof, the Borrower entered into a
reorganization transaction pursuant to which, among other things, (i) the Parent
created a new subsidiary, Xxxxxx Associates, Inc., a Delaware corporation
("HAI"), (ii) the Borrower distributed an amount not to exceed $207.5 million
comprised of accounts receivable and cash to the Parent, and (iii) the Parent
transferred all of its ownership interests in the Borrower to HAI (collectively,
the foregoing transactions and the related transactions described in the form
S-1 Registration Statement of HAI filed with the U.S. Securities and Exchange
Commission on May 17, 2002, as it may be amended from time to time (the "S-1"),
the "Reorganization Transaction"). In connection with the Reorganization
Transaction, the Borrower requested that the Lenders waive certain Defaults and
Events of Default which would otherwise have occurred as a result thereof, and
amend certain provisions of the Credit Agreement in connection therewith, and
the Lenders did so, all on the terms and conditions set forth in a certain Sixth
Amendment and Waiver to Revolving and Term Credit Agreement of even date
herewith (herein, the "Sixth Amendment"). In addition to the amendments to the
Credit Agreement set forth in the Sixth Amendment, the Borrower is requesting
that the Lenders further amend a certain provision of the Credit Agreement, and
the Lenders are willing to do so, all on the terms and conditions set forth in
this Seventh Amendment to Revolving and Term Credit Agreement (this
"Amendment").
SECTION 1. AMENDMENT.
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. Section 7.11(b) of the Credit Agreement shall be amended to read
in its entirety as follows:
(b) purchase money indebtedness secured by Liens permitted by
Section 7.12(d) hereof heretofore or hereafter incurred to acquire
fixed assets and
not exceeding the purchase price of the assets financed and
Capitalized Lease Obligations not exceeding, in aggregate
principal amount at any one time outstanding, 20% of Owners
Equity, provided that (x) the long term lease of property in
Norwalk, Connecticut in connection with which the Borrower has
incurred Capitalized Lease Obligations in an amount of
approximately $65,000,000, and (y) the long term lease of
property in Newport Beach, California in connection with which
the Borrower has incurred Capitalized Lease Obligations in an
amount not to exceed $25,000,000 shall each be permitted pursuant
to this Section 7.11(b) and shall not be counted against the
maximum amount set forth herein, although each of such leases
shall continue to be counted as Funded Debt for all other
purposes under this Agreement.
SECTION 2. COMMONS PRECEDENT.
The effectiveness of this Amendment is subject to satisfaction of all
of the following conditions precedent:
2.1. The Agent shall have received counterparts hereof signed by the
Borrower and the Lenders.
2.2. The Parent shall have executed an acknowledgment of this Amendment
in the form set forth below.
2.3. All legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to the Lenders and their counsel,
SECTION 3. REPRESENTATIONS.
The Borrower hereby represents and warrants to the Agent and the
Lenders that as of the date hereof:
3.1. No Default and no Event of Default shall have occurred and
be continuing on such date;
3.2. All representations and warranties on the part of the
Borrower contained in the Loan Documents are true and correct in all
material respects at and as of such date as though made on and as of
such date (except as to matters previously disclosed to all Lenders in
writing).
SECTION 4. MISCELLANEOUS.
4.1. Except as specifically modified hereby, all of the terms,
conditions and provisions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. No reference to this Amendment need be
made in any instrument or document at any time referring to the Credit
Agreement, a reference to the Credit Agreement in any of such items to be deemed
to be a reference to the Credit Agreement as modified hereby.
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4.2. he Borrower agrees to pay on demand all reasonable out-of-pocket
costs and expenses of the Agent incurred in connection with the negotiation,
preparation, execution and/or delivery of this Amendment and the other
instruments or documents contemplated hereby or to be delivered hereunder. This
Amendment may be executed in counterparts and by separate parties hereto on
separate counterparts, each to constitute an original but all to constitute but
one and the same instrument. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of Illinois.
4.3. This Amendment has been duly authorized, executed and delivered on
the Borrower's behalf, and the Credit Agreement, as modified hereby, constitutes
its legal, valid and binding obligation enforceable against it in accordance
with its terms except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law).
[SIGNATURE PAGES TO FOLLOW]
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This Seventh Amendment to Revolving and Term Credit Agreement is dated
as of May 31,2002,
BORROWER
XXXXXX ASSOCIATES LLC
By /s/ X. X. Xxxxxxxx III
Its Authorized Representative
LENDERS
XXXXXX TRUST AND SAVINGS BANK,
individually and as Agent
By /s/ Xxxxxxx Whiter
Its Managing Director
BANK OF AMERICA, N.A.
By /s/ Xxxx X. Xxxxxxxx
Its Managing Director
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PARENT GUARANTOR'S ACKNOWLEDGEMENT AND CONSENT
Xxxxxx Holdings LLC (the "Parent") heretofore previously executed and
delivered to the Agent a Guaranty Agreement dated as of May 31, 2002 (the
"Guaranty,") with respect to the Obligations under and as defined in the Credit
Agreement. The Parent hereby consents to the foregoing Seventh Amendment to
Revolving and Term Credit Agreement as set forth above and confirms that the
Guaranty and all of its obligations thereunder remain in full force and effect
with respect to the Obligations under the Credit Agreement as amended by such
Seventh Amendment. The Parent further agrees that the consent of the Parent to
any further amendments to the Credit Agreement shall not be required as a result
of this consent having been obtained.
XXXXXX HOLDINGS LLC
By /s/ X. X. Xxxxxxxx III
Its Authorized Representative
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