EXHIBIT 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 22,
2005 (this "Agreement"), is made by and among Xxxxxxx, Inc., a Delaware
corporation ("Xxxxxxx"), Prince, Inc., a Delaware corporation ("Prince"),
Xxxxxxx of Mississippi, Inc., a Delaware corporation ("Xxxxxxx Mississippi"),
Carpet Recycling of Georgia, Inc., a Georgia corporation ("Carpet"), ALG, Inc.,
a Delaware corporation ("ALG"), PermaClear East Incorporated, a Delaware
corporation ("PermaClear"), PTA Resources, LLC, a Delaware limited liability
company ("PTA Resources"), Xxxxxxx Resins, LLC, a Delaware limited liability
company ("Resins") and Fiber Industries, Inc., a Delaware corporation ("Fiber"
and, together with Wellman, Prince, Xxxxxxx Mississippi, Carpet, ALG,
PermaClear, PTA Resources and Resins, each individually referred to herein as a
"Borrower" and collectively as "Borrowers" with Xxxxxxx acting in its capacity
as Funds Administrator for the Borrowers), each of the undersigned Lenders and
Deutsche Bank Trust Company Americas, acting in its capacity as administrative
agent (the "Administrative Agent") and collateral agent ("Collateral Agent") for
the Lenders hereunder (in its capacities as Administrative Agent and Collateral
Agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agent and certain financial institutions
parties thereto (each, a "Lender"; collectively, the "Lenders") are parties to
that certain Credit Agreement dated as of February 10, 2004 (as in effect from
time to time, the "Credit Agreement").
WHEREAS, the Borrowers have requested certain amendments to the
Credit Agreement, and the Agent and the Lenders are willing to effect such
amendments.
NOW, THEREFORE, in consideration of the recitals herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
used herein shall have the meanings given them in the Credit Agreement, as
amended hereby.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
(a) SECTION 1.1 -- DEFINITIONS. Section 1.1 of the Credit Agreement is
amended as follows:
(I) APPLICABLE MARGIN. The definition of "Applicable Margin" is
hereby amended by (A) inserting the clause "or the Leverage Certificate
that is required to be delivered pursuant to Section 7.1(i)" immediately
after the clause "the financial statements that are required to be
delivered pursuant to Section 7.1(b)" and (B) inserting
the phrase "or Leverage Certificate" immediately after the phrase "such
financial statements".
(II) APPLICABLE MARGIN PERIOD. The definition of "Applicable Margin
Period" is hereby amended by deleting such definition in its entirety and
replacing it with the following definition:
"'Applicable Margin Period' shall mean each period which shall
commence on the first Business Day of each March, June, September
and December (each such day, a "Start Date") following delivery of
(a) with respect to the Applicable Margin Periods beginning in June,
September and December, the financial statements and compliance
certificate pursuant to Section 7.1(b) relating to the most recently
ended Fiscal Quarter and (b) with respect to the Applicable Margin
Periods beginning in March, a Leverage Certificate relating to the
most recently ended Fiscal Quarter. The Applicable Margin Period
shall end, in each case, on the earlier of (i) the day immediately
preceding the Start Date of the next Applicable Margin Period or
(ii) the Expiration Date; provided that the first Applicable Margin
Period shall commence on the first Business Day of the month
following the delivery of the financial statements in respect of the
Fiscal Quarter ending on March 31, 2005."
(III) INTERCOMPANY INDEBTEDNESS. The definition of "Intercompany
Indebtedness" is hereby amended by deleting "8.3(d)" where it appears in
such definition and replacing it with "8.3(c)".
(IV) INTEREST PERIOD. The definition of "Interest Period" is hereby
amended by deleting the parenthetical "(and if available to all Lenders,
nine or twelve)" and inserting the parenthetical "(and other longer or
shorter periods if available to all Lenders)" immediately after the words
"six months".
(v) RESPONSIBLE OFFICER. The definition of "Responsible Officer" is
hereby amended by deleting such definition in its entirety and replacing
it with the following definition:
"'Responsible Officer' means the controller, chief financial
officer, treasurer, assistant treasurer, chief accounting officer or
any other similar financial officer or position."
(VI) START DATE. The definition of "Start Date" is hereby amended by
deleting such definition in its entirety and replacing it with the
following definition:
"'Start Date' shall have the meaning ascribed to such term in the
definition of Applicable Margin Period."
(VII) LEVERAGE CERTIFICATE. The following definition is
hereby inserted alphabetically in Section 1.1:
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"'Leverage Certificate' means a certificate signed by a Responsible
Officer of Xxxxxxx in the form of Exhibit F."
(b) SECTION 2.4(e) -- MANDATORY PAYMENTS; MANDATORY REDUCTIONS OF
COMMITMENTS. Section 2.4(e) of the Credit Agreement is hereby amended by
inserting after the clause "On the Business Day on which any Asset Sale occurs"
the clause "which decreases the Eligible Inventory and/or Eligible Accounts
Receivable amounts that are included in computation of the Borrowing Base".
(c) SECTION 7.1 -- FINANCIAL INFORMATION. Section 7.1 of the Credit
Agreement is amended as follows:
(i) SECTIONS 7.1(b), 7.1(c) AND 7.1(f). Sections 7.1(b), 7.1(c) and
7.1(f) are hereby amended by deleting the phrase "the chief accounting
officer or chief financial officer" where it appears in each such section
and inserting in its place in each such section the phrase "a Responsible
Officer".
(II) SECTIONS 7.1(h) AND (i). Section 7.1(h) is hereby amended by
deleting the word "and" found at the end of such section, and Section
7.1(i) is hereby redesignated as Section 7.1(j).
(III) SECTION 7.1(i). The following is added as the new Section
7.1(i) immediately after Section 7.1(h):
"(i) as soon as available but in no event later than the
Business Day preceding the Start Date occurring each March, a
Leverage Certificate duly certified by a Responsible Officer
of Xxxxxxx; and".
(d) SECTION 8.2 -- CAPITAL EXPENDITURES. Section 8.2 of the Credit
Agreement is amended as follows:
(i) SECTION 8.2(d). Section 8.2(d) is hereby amended by deleting the
amount "$50 million" where it appears in such section and replacing it
with the amount "$65 million".
(II) SECTION 8.2(e) AND 8.2(f). Section 8.2(e) is hereby amended by
deleting the phrase "270 days" where it appears in such section and
replacing it with the phrase "365 days" and by deleting the parenthetical
phrase "(whether due to application of a deductible or otherwise)". The
following is added immediately after Section 8.2(e) as Section 8.2(f):
"(f) In addition to the foregoing, to the extent that Xxxxxxx or any
Subsidiary suffers a Casualty Loss (without regard to the minimum
threshold requirement in Section 7.8) on property or assets which
are insured (without regard to the deductible or otherwise), Xxxxxxx
or such Subsidiary may incur Capital Expenditures to repair or
replace such assets within 365 days of such Casualty Loss."
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(e) SECTION 8.3 -- ADDITIONAL INDEBTEDNESS. Section 8.3(c) of the Credit
Agreement is hereby amended by deleting such section in its entirety and
inserting the following in its place:
"(c) subject to Section 8.9(f), a Borrower and its Subsidiaries may
incur and remain liable with respect to Intercompany Indebtedness,
subject to no Lien held by any Person other than a Borrower or a
Subsidiary Guarantor or a Lien permitted by this Credit Agreement,
provided, however, that all Intercompany Indebtedness owed by the
Borrowers and/or any of the Subsidiary Guarantors, on the one hand,
to the Subsidiaries which are not Credit Parties, on the other,
incurred under this clause (c) shall be Subordinated Indebtedness;".
(f) SECTION 8.5 -- SALE OF ASSETS. Section 8.5 is hereby amended by
redesignating clause (d) therein as clause (e) and inserting the following in
such section as the new clause (d):
"(d) any disposition of assets or property which, in the reasonable
judgment of such Borrower, is uneconomical, obsolete, worn out or no
longer useful in such Borrower's or such Subsidiary's business;".
(g) SECTION 8.9 -- INVESTMENTS. Section 8.9(f) is hereby amended by
deleting such section in its entirety and replacing it with the following:
"(f) So long as no Default or Event of Default has occurred and is
continuing, (i) Investments consisting of intercompany loans by any
Credit Party to any Foreign Subsidiary made after the Closing Date
in an amount not in excess of $15.0 million in the aggregate at any
time outstanding, (ii) Investments other than intercompany loans
made by any Credit Party in any Foreign Subsidiary after the Closing
Date in an amount not in excess of $5.0 million in the aggregate at
any time outstanding and (iii) Investments by any Credit Party in
any Foreign Subsidiary made after the Closing Date in an amount not
to exceed the amount of cash received by Credit Parties (whether as
a return of capital, dividend, loan, interest or otherwise, but
excluding trade payables or proceeds of asset sales between any
Credit Party and any Foreign Subsidiary) from any Foreign
Subsidiaries after the Closing Date but without duplication of
amounts already credited in determining the amount of loans or other
Investments permitted under clauses (i) and (ii) of this Section
8.9(f);".
(h) SECTION 8.17 -- VOLUNTARY PREPAYMENT OF DEBT. Section 8.17 is hereby
amended by inserting the word "and" before the phrase "(y) Average Normalized
Availability" and deleting the clause "and (z) the Pearl River Project is
complete and substantially all Capital Expenditures required to be made in
connection therewith have been paid".
(i) SECTION 9.1 -- EVENTS OF DEFAULT. Section 9.1(b) is hereby amended by
inserting the phrase "7.1(i)," immediately after the phrase "excluding
Sections". Section 9.1(c) is hereby amended by inserting the phrase "7.1(i) or
Section" immediately in front of the phrase "9.1(a) or (b) above".
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(j) SECTION 10.4, 10.10 AND 11.10 -- SUPER MAJORITY LENDERS.
(i) SECTION 10.4. Section 10.4 is hereby amended by deleting the
phrase "the Super Majority Lenders or" where it appears in such section.
(II) SECTION 10.10. Section 10.10 is hereby amended by deleting the
phrases "or the Super Majority Lenders, as the case may be," and "or Super
Majority Lenders" where such phrases appears in such section.
(III) SECTION 11.10(b). Section 11.10(b) is hereby amended by
deleting clauses (iv) and (v) of such section in their entirety and
inserting the following clauses (iv) and (v) in their place:
(iv) change the percentage of the Commitments, or any minimum
requirement necessary for the Lenders or the Majority Lenders to
take any action hereunder; (v) amend or waive this Section 11.10, or
change the definition of Majority Lenders;
(IV) SECTION 11.10(c). Section 11.10(c) is hereby amended by (A)
deleting the phrase "Super Majority Lenders" where it appears in clause
(i) of such section and replacing it with the phrase "Majority Lenders"
and (B) deleting the text of clause (ii) and replacing such text with the
word "[Reserved.]"
(k) EXHIBIT F -- LEVERAGE CERTIFICATE. The form of Leverage Certificate
attached to this Agreement as Exhibit B is hereby added to the Credit Agreement
as Exhibit F.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Agreement, the Borrowers hereby represent and warrant
to the Agent and the Lenders, in each case after giving effect to this
Agreement, as follows:
(a) POWER AND AUTHORITY. Each Borrower has the power and authority
to execute, deliver and perform this Agreement and, in the case of each Borrower
and each Credit Party, all agreements, documents and instruments executed and
delivered pursuant to this Agreement and each Borrower and each Credit Party has
taken all necessary action to authorize the execution, delivery and performance
by it of this Agreement and all agreements, documents and instruments executed
and delivered by it pursuant to this Agreement, as the case may be.
(b) BINDING OBLIGATION. This Agreement has been duly executed and
delivered by each Borrower and the Acknowledgement and Consent (as hereinafter
defined) has been duly executed by each Subsidiary Guarantor, and such documents
are the legal, valid and binding obligation of each such entity a party thereto,
enforceable against such entity in accordance with its terms, except to the
extent that the enforcement thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
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(c) INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM THE CREDIT
AGREEMENT. After giving effect to this Agreement, the representations and
warranties contained in the Credit Agreement and the other Credit Documents are
true and correct in all material respects on and as of the Effective Date as
though made on such date, except to the extent that such representations and
warranties are expressly made as of a specific date (in which event such
representations and warranties shall have been true and correct in all material
respects on and as of such specified date).
(d) NO VIOLATION OR CONFLICT. Neither execution, delivery and
performance of this Agreement nor the transactions contemplated hereby will (i)
contravene in any material respect any Requirement of Law, (ii) conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien upon
any of the properties or assets of any Borrower or any Subsidiary pursuant to
the terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other agreement, contract or instrument, to which a Borrower
or any Subsidiary is a party or by which it or any of its property or assets is
bound or to which it may be subject, except for any such conflict, breach or
Lien which would not individually or in the aggregate reasonably be expected to
have a Material Adverse Effect, or (iii) will violate or conflict with the
Governing Documents of any Credit Party.
(e) NO ADDITIONAL CONSENTS REQUIRED. No authorization or approval or
other action by, and no notice to or filing or registration with, any
Governmental Authority or other Person is required in connection with the
execution, delivery and performance of this Agreement and all agreements,
documents and instruments executed and delivered pursuant to this Agreement
other than those obtained and in full force and effect.
(f) ABSENCE OF DEFAULT. No Default or Event of Default will exist or
be continuing.
(g) GOOD STANDING. On the Effective Date, each Credit Party is a
duly organized and validly existing entity in good standing in its jurisdiction
of incorporation or formation.
SECTION 4. CONDITIONS PRECEDENT
4.1. CONDITIONS TO EFFECTIVENESS OF AGREEMENT. This Agreement shall become
effective upon the date when each of the following conditions precedent have
been satisfied (the "Effective Date"):
(a) EXECUTION AND DELIVERY OF AGREEMENT. Each Borrower, the
Administrative Agent and the Majority Lenders shall have executed and delivered
this Agreement.
(b) ACKNOWLEDGEMENT AND CONSENT. The Administrative Agent shall have
received an acknowledgement and consent dated the Effective Date in the form of
Exhibit A attached hereto (the "Acknowledgement and Consent"), duly executed and
delivered by each Subsidiary Guarantor.
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(c) NO DEFAULTS. After giving effect to this Agreement, no Default
or Event of Default under the Credit Agreement shall have occurred and be
continuing.
(d) REPRESENTATIONS AND WARRANTIES. After giving effect to this
Agreement, the representations and warranties of the Borrower and the other
Credit Parties contained in the Credit Agreement and the other Credit Documents
are true and correct in all material respects on and as of the Effective Date as
though made on such date, except to the extent that such representations and
warranties are expressly made as of a specific date (in which event such
representations and warranties shall have been true and correct in all material
respects on and as of such specified date).
4.2 ADDITIONAL CONDITIONS TO EFFECTIVENESS OF SECTION 2(j). Section 2(j)
of this Agreement shall, notwithstanding the prior effectiveness of the
Agreement, become effective only if all Lenders shall have executed and
delivered this Agreement.
SECTION 5. MISCELLANEOUS
5.1. MISCELLANEOUS. The parties hereto hereby further agree as follows:
(a) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Agreement to produce more than one (1) such counterpart.
(b) HEADINGS. Headings used in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
(c) INTEGRATION. This Agreement, the other agreements and documents
executed and delivered pursuant to this Agreement and the Credit Agreement
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND THE RIGHTS AND DUTIES OF THE
FUNDS ADMINISTRATOR, THE BORROWERS, THE AGENT, EACH ISSUING BANK AND THE LENDERS
UNDER THIS AGREEMENT AND ANY OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH
SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
(e) BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by each Borrower, the Agent and the Lenders
and their respective successors and assigns. Except as expressly set forth to
the contrary herein, this Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the each Borrower, the Agent and the
Lenders and their respective successors and permitted assigns.
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(f) LIMITATIONS. Except as expressly provided herein, the execution
and delivery of this Agreement shall not: (a) constitute an extension,
modification, or waiver of any aspect of the Credit Agreement or the other
Credit Documents; (b) extend the terms of the Credit Agreement or the due date
of any of the Obligations; (c) give rise to any obligation on the part of the
Agent and the Lenders to extend, modify or waive any term or condition of the
Credit Agreement or any of the other Credit Documents; or (d) give rise to any
defenses or counterclaims to the right of the Agent and the Lenders to enforce
its or their rights and remedies under the Credit Agreement and the other Credit
Documents.
(g) REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. The parties
hereto agree and acknowledge that nothing contained in this Agreement in any
manner or respect limits or terminates any of the provisions of the Credit
Agreement or any of the other Credit Documents other than as expressly set forth
herein and further agree and acknowledge that the Credit Agreement (as amended
hereby) and each of the other Credit Documents remain and continue in full force
and effect and are hereby ratified and confirmed. Except to the extent expressly
set forth herein, the execution, delivery and effectiveness of this Agreement
shall not operate as an amendment of any rights, power or remedy of the Lenders
or the Agent under the Credit Agreement or any other Credit Document, nor
constitute an amendment of any provision of the Credit Agreement or any other
Credit Document. On 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 to the Credit Agreement in the Credit Documents and
all other documents delivered in connection with the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended hereby. Each Borrower
acknowledges and agrees that this Agreement constitutes a "Credit Document" for
purposes of the Credit Agreement. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner, whatsoever,
except in accordance with Section 11.10 of the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
BORROWERS:
XXXXXXX, INC.,
a Delaware corporation, individually, as a
Borrower and as Funds Administrator
By:/s/ Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
PRINCE, INC., as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: President
WELLMAN OF MISSISSIPPI, INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
CARPET RECYCLING OF GEORGIA,
INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
Signature Page to First Amendment to Credit Agreement
ALG, INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
PERMACLEAR EAST INCORPORATED,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
FIBER INDUSTRIES, INC.,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
XXXXXXX RESINS LLC,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
PTA RESOURCES, LLC,
as a Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Title: Vice President
Signature Page to First Amendment to Credit Agreement
AGENT:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender, Administrative
Agent and Collateral Agent
By: /s/ Xxxxx Xxxxx
---------------
Title: Director
Signature Page to First Amendment to Credit Agreement
LENDERS:
XX Xxxxxx Chase Bank, NA
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Managing Director
LENDERS:
General Electric Capital Corporation
By: /s/ Xxxxx X. Xxxxx
------------------
Title: Duly Authorized Signatory
LENDERS:
LASALLE BUSINESS CREDIT, LLC
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------
Title: Senior Vice President
LENDERS:
PB Capital Corporation
By: /s/ Xxxxx X. XxXxxxxx
---------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Title: Assistant Vice President
LENDERS:
CONGRESS FINANCIAL CORPORATION
BY: /s/ Xxxxx Xxxxxx
----------------
Title: Associate
LENDERS:
XXXXX FARGO FOOTHILL, LLC
By: /s/ Yelenda Kravshuk
--------------------
Title: Assistant Vice President
Signature Page to First Amendment to Credit Agreement
LENDERS:
GMAC COMMERCIAL FINANCE LLC
By: /s/ Xxxxxx Xxxxx
----------------
Title: Director
LENDERS:
Xxxxxx Xxxxx Capital, a division of
Xxxxxxx Xxxxx Business Financial Services
Inc.
By: /s/ Xx Xxxxxxx
--------------
Title: Assistant Vice President
LENDERS:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
-------------------
Title: Vice President
LENDERS:
ALLIED IRISH BANK, PLC
By: /s/ Xxxxxx Xxxx
---------------
Title: Senior Vice President
LENDERS:
XXXXXXX BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxxxx Xxxxx
------------------
Title: Vice President
Signature Page to First Amendment to Credit Agreement
EXHIBIT A
FORM OF
ACKNOWLEDGMENT AND CONSENT
The undersigned entities, constituting Subsidiaries of the Borrowers
(each, a "Subsidiary Guarantor"), hereby (a) acknowledge that they have reviewed
the terms and provisions of (i) the Credit Agreement dated as of February 10,
2004 (as amended, the "Agreement"), by and among Xxxxxxx, Inc. ("Xxxxxxx"),
Prince, Inc. ("Prince"), Xxxxxxx of Mississippi, Inc. ("Xxxxxxx Mississippi"),
Carpet Recycling of Georgia, Inc. ("Carpet"), ALG, Inc. ("ALG"), PermaClear East
Incorporated ("PermaClear"), PTA Resources, LLC ("PTA Resources"), Xxxxxxx
Resins, LLC ("Resins") and Fiber Industries, Inc. ("Fiber" and, together with
Wellman, Prince, Xxxxxxx Mississippi, Carpet, ALG, PermaClear, PTA Resources and
Resins, each individually referred to herein as a "Borrower" and collectively as
"Borrowers" with Xxxxxxx acting in its capacity as Funds Administrator for the
Borrowers), the financial institutions party thereto as Lenders and Deutsche
Bank Trust Company Americas, acting in its capacity as administrative agent (the
"Administrative Agent") and collateral agent ("Collateral Agent") for the
Lenders hereunder (in its capacities as Administrative Agent and Collateral
Agent, the "Agent") and (ii) the First Amendment to Credit Agreement (the
"Amendment") and (b) consent to the amendment of the Agreement pursuant to the
Amendment and the other matters contemplated under the Amendment.
Each Subsidiary Guarantor hereby acknowledges and agrees that any of the
Credit Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or affected by the execution or
effectiveness of the Amendment. Each Subsidiary Guarantor represents and
warrants that all representations and warranties applicable to it contained in
the Agreement as amended by this Amendment and the Credit Documents to which it
is a party or otherwise bound are true and correct in all material respects on
and as of the Effective Date (except to the extent that such representations and
warranties are expressly made as of a specific date, in which event such
representations and warranties shall have been true and correct in all material
respects on and as of such specified date).
Each Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in the Amendment, each Subsidiary
Guarantor is not required by the terms of the Agreement or any other Credit
Document to consent to the amendment of the Agreement effected pursuant to the
Amendment and (ii) nothing in the Agreement or the Amendment or any other Credit
Document shall be deemed to require the consent of any Subsidiary Guarantor to
any future amendment of the Agreement or any other Credit Document.
[SIGNATURE PAGE FOLLOWS]
Exhibit A
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Acknowledgement and Consent to First Amendment to Agreement to be duly executed
and delivered by its proper and duly authorized officer as of the ___th day of
December, 2005.
WAREHOUSE ASSOCIATES, INC. USA
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Treasurer
FINWELL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Director & President
MRF, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Treasurer
JOSDAV INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Treasurer
Signature Page to Acknowledgement and Consent
FIISB, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
MED RESINS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: President
XXXXXXX EXPORTS V.I.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer
Signature Page to Acknowledgement and Consent
EXHIBIT B
FORM OF LEVERAGE CERTIFICATE
This Leverage Certificate is given by Xxxxxxx, Inc. for itself and
its Subsidiaries ("Xxxxxxx") pursuant to Section 7.1(i) of that certain Credit
Agreement, dated as of February 10, 2004, among Xxxxxxx, the other Borrowers
named therein, the Lenders signatory thereto from time to time, and Deutsche
Bank Trust Company Americas, as Agent (as such agreement may have been amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Credit Agreement.
The undersigned is duly authorized to execute and deliver this
Leverage Certificate on behalf of Borrowers. By executing this Leverage
Certificate such officer hereby certifies to Agent and Lenders that the Leverage
Ratio for the Fiscal Quarter ending December 31, [____], is ____, and the
Applicable Margins shall be calculated using Level ___.
IN WITNESS WHEREOF, Xxxxxxx has caused this Leverage Certificate to
be executed by its ________________________ this _______ day of _____________.
XXXXXXX, INC.
By:___________________________________________
its:__________________________________________
Exhibit B
