Ex 10.22
KATY INDUSTRIES, INC.
THIRD AMENDMENT
TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of April 29, 2002 and entered into by and among KATY INDUSTRIES, INC., a
Delaware corporation ("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and
collectively as "Lenders"), DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly
Bankers Trust Company), as agent for Lenders (in such capacity, "Agent"), and
for purposes of Section 4 hereof, the Credit Support Parties (as defined in
Section 4 hereof) listed on the signature pages hereof, and is made with
reference to that certain Credit Agreement dated as of June 28, 2001, by and
among Company, Lenders and Agent, as amended by that certain First Amendment
thereto dated as of September 27, 2001 and that certain Second Amendment thereto
dated as of November 26, 2001 (as so amended, the "Credit Agreement").
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company has requested that Lenders amend the Credit
Agreement (i) to permit XXXXX'x transfer of its interest in the XXXXX Facility
(defined below) to NEWCO (defined below) and the other transactions contemplated
by that certain Agreement To Enter Into a Joint Venture dated as of March 14,
2002 by and among Company, XXXXX, Xxxx-Xxxxxxx, Inc., Montenay Power
Corporation, Montenay Savannah Operations Inc., Montenay Savannah GP Inc., and
Montenay Savannah Limited Partnership, and (ii) with respect to certain other
matters.
NOW, THEREFORE, subject to the terms and conditions of this
Amendment and in consideration of the premises and the agreements, provisions
and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"`Authority' means the Resource Recovery Development Authority for
the City of Savannah, a public body corporate and politic created
and existing pursuant to O.C.G.A.ss.36-63-1, et seq., as amended."
"`City' means the Mayor and the Aldermen of the City of Savannah,
Georgia, a municipal corporation and political subdivision of the
State of Georgia."
"`Contributed Assets' has the meaning assigned to that term in the
XXXXX Joint Venture Agreement."
"`Energy Purchaser' means Xxxx-XxXxx Pigments (Savannah), Inc., a
Georgia corporation, and its successors and assigns."
"`Existing XXXXX Documents' means collectively, (i) the XXXXX
Guaranty, (ii) the XXXXX Loan Agreement, (iii) the XXXXX Service
Agreement, (iv) the XXXXX Steam Agreement, and (v) any other
agreements, documents and instruments delivered pursuant to or in
connection with the agreements described in the foregoing clauses
(other than the XXXXX/Montenay Transaction Documents), in each case
(for clauses (i) through (v) above) as any such agreement or
document may be amended from time to time after the Third Amendment
Effective Date to the extent permitted by subsection 7.15A."
"`Katy Guaranty' means that certain Guaranty dated as of April 29,
2002 by Company in favor of the Authority, as such guaranty may be
amended from time to time after the Third Amendment Effective Date
to the extent permitted under subsection 7.15A."
"`Katy Letter Agreement' means that certain letter agreement dated
as of April 29, 2002 by and between Company and NEWCO, as such
agreement may be amended from time to time after the Third Amendment
Effective Date to the extent permitted under subsection 7.15A."
"`Xxxx Xxxxxxx' means Katy-Xxxxxxx, Inc., a Delaware corporation and
a Subsidiary of Company."
"`Montenay' means Montenay Savannah GP Inc., a Delaware corporation,
a wholly-owned Subsidiary of Montenay Corp., and the general partner
of NEWCO."
"`Montenay Corp.' means Montenay Power Corporation, a Delaware
corporation."
"`Montenay Operations' means Montenay Savannah Operations Inc., a
Delaware corporation."
"`NEWCO' means Montenay Savannah Limited Partnership, a Delaware
limited partnership."
"`NEWCO LP Agreement' means that certain Amended and Restated
Agreement of Limited Partnership of NEWCO dated as of April 29, 2002
by and between XXXXX and Montenay, as such agreement may be amended
from time to time after the Third Amendment Effective Date to the
extent permitted under subsection 7.15A."
2
"`Operating Guaranty Agreement' means that certain Operating
Guaranty Agreement dated as of April 29, 2002 by and between Company
and Montenay Corp., as such agreement may be amended from time to
time after the Third Amendment Effective Date to the extent
permitted under subsection 7.15A."
"`Operating Services Agreement' means that certain Operating
Services Agreement dated as of April 29, 2002 by and between
Montenay Operations and NEWCO, as such agreement may be amended from
time to time after the Third Amendment Effective Date to the extent
permitted under subsection 7.15A."
"`Xxxxxxx Grate Technology' means that certain technology commonly
known as the Xxxxxxx grate technology, as further described on
Schedule 3.13(b) to the XXXXX Joint Venture Agreement."
"`XXXXX Assignment and Assumption Agreement' means that certain
Assignment and Assumption Agreement dated as of April 29, 2002 by
and between XXXXX and NEWCO, as such agreement may be amended from
time to time after the Third Amendment Effective Date to the extent
permitted under subsection 7.15A."
"`XXXXX Facility' means the waste-to-energy facility located in the
County of Chatham, near Savannah, Georgia, owned and operated by
XXXXX or its successor operator."
"`XXXXX Joint Venture Agreement' means that certain Agreement to
Enter into a Joint Venture dated as of March 14, 2002 by and among
XXXXX, Company, Xxxx Xxxxxxx, Montenay Corp., Montenay Operations,
Montenay and NEWCO, as such agreement may be amended from time to
time after the Third Amendment Effective Date to the extent
permitted under subsection 7.15A."
"`XXXXX Limited Partnership Interest Purchase Agreement' means that
certain Limited Partnership Interest Purchase Agreement dated as of
April 29, 2002 by and between XXXXX and Montenay Corp., as such
agreement may be amended from time to time after the Third Amendment
Effective Date to the extent permitted under subsection 7.15A."
"`XXXXX Note' means that certain promissory note dated April 29,
2002 issued by XXXXX to the Authority in the original principal
amount of $6,600,000, as such promissory note may be amended from
time to time after the Third Amendment Effective Date to the extent
permitted under subsection 7.15A."
"`XXXXX Pledge Agreement' means that certain Partnership Interest
Pledge Agreement dated as of April 29, 2002 by and between XXXXX and
the Authority, as such agreement may be amended from time to time
after the Third Amendment Effective Date to the extent permitted
under subsection 7.15A."
"`XXXXX/Montenay Transaction' means XXXXX'x transfer of its interest
in the XXXXX Facility and the other Contributed Assets to NEWCO, in
accordance with
3
the NEWCO LP Agreement, and the other transactions contemplated by
the XXXXX/Montenay Transaction Documents, including, without
limitation, (i) XXXXX'x assignment of the XXXXX Service Agreement to
NEWCO and (ii) Montenay Operations' entering into of the Operating
Services Agreement pursuant to which Montenay Operations assumes the
obligations of XXXXX as operator under the XXXXX Service Agreement."
"`XXXXX/Montenay Transaction Documents' means collectively, (i) the
XXXXX Joint Venture Agreement, (ii) the NEWCO LP Agreement, (iii)
the XXXXX Note, (iv) the XXXXX Pledge Agreement, (v) the Katy
Guaranty, (vi) the Operating Services Agreement, (vii) the XXXXX
Assignment and Assumption Agreement, (viii) the XXXXX Limited
Partnership Interest Purchase Agreement, (ix) the Katy Letter
Agreement, (x) that certain Transfer of Limited Partner Interest
dated as of April 29, 2002 by and among XXXXX, Montenay Corp. and
Montenay, (xi) that certain Xxxx of Sale and Assignment dated as of
April 29, 2002 by and between Company and Xxxx Xxxxxxx, (xii) that
certain Warranty Xxxx of Sale dated as of April 29, 2002 by XXXXX,
(xiii) the Operating Guaranty Agreement, and (xiv) any agreement or
document entered into by any Loan Party in connection with any of
the foregoing, in each case (for clauses (i) through (xiv) above) as
any such agreement or document may be amended from time to time
after the Third Amendment Effective Date to the extent permitted by
subsection 7.15A."
"`Third Amendment' means that certain Third Amendment to Credit
Agreement dated as of April 29, 2002 among Company, Agent and
Lenders."
"`Third Amendment Effective Date' has the meaning assigned to that
term in the Third Amendment."
B. Subsection 1.1 of the Credit Agreement is hereby further amended
by inserting at the end of the definition of the term "Consolidated Leverage
Ratio" the following proviso: "; provided, that in calculating the Consolidated
Leverage Ratio for purposes of subsection 7.6A, the principal amount outstanding
under the XXXXX Note shall be excluded from Consolidated Total Debt (it being
understood that the principal amount outstanding under the XXXXX Note shall not
be excluded from Consolidated Total Debt in calculating the Consolidated
Leverage Ratio for any other purpose (including without limitation for purposes
of determining the interest rate pursuant to subsection 2.2A))."
C. Subsection 1.1 of the Credit Agreement is hereby further amended
by inserting the phrase ", the XXXXX/Montenay Transaction Documents," after the
reference to "the Management Agreement," appearing in the fourth line of the
definition of "Related Agreements."
D. Subsection 1.1 of the Credit Agreement is hereby further amended
by adding at the end of clause (iv) of the definition of the term "Restricted
Junior Payment" the phrase "or the XXXXX Note or any payment under the Katy
Guaranty or any payment under the Katy Letter Agreement."
4
1.2 Amendments to Section 3: Letters of Credit
A. Subsection 3.1B of the Credit Agreement is hereby amended by
inserting the phrase "and in the case of a Commercial Letter of Credit, to Agent
and LaSalle Bank National Association," immediately after the word "Agent"
appearing in the second line of clause (i).
B. Subsection 3.1B of the Credit Agreement is hereby further amended
by deleting the last sentence contained in clause (ii) thereof and substituting
the following therefor:
"In the event that all other Revolving Lenders shall have declined
to issue such Standby Letter of Credit, notwithstanding the prior
election of Agent not to issue such Standby Letter of Credit, Agent
shall be obligated to issue such Standby Letter of Credit and shall
be the Issuing Lender with respect thereto, notwithstanding the fact
that the Letter of Credit Usage with respect to such Standby Letter
of Credit and with respect to all other Letters of Credit issued by
Agent, when aggregated with Agent's outstanding Revolving Loans, may
exceed Agent's Revolving Loan Commitment then in effect; provided
that Agent shall not be obligated to issue any Letter of Credit
denominated in a foreign currency which in the judgment of Agent is
not readily and freely available. In the event that all other
Lenders shall have declined to issue such Commercial Letter of
Credit, then notwithstanding the prior election of LaSalle Bank
National Association not to issue such Commercial Letter of Credit,
so long as LaSalle Bank National Association is a party hereto,
LaSalle Bank National Association shall be obligated to issue such
Commercial Letter of Credit and shall be the Issuing Lender with
respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Commercial Letter of Credit and with
respect to all other Letters of Credit issued by LaSalle Bank
National Association, when aggregated with LaSalle Bank National
Association's outstanding Revolving Loans, may exceed LaSalle Bank
National Association's Revolving Loan Commitment then in effect;
provided that LaSalle Bank National Association shall not be
obligated to issue any Letter of Credit denominated in a foreign
currency which in the judgment of LaSalle Bank National Association
is not readily and freely available. In the event that LaSalle Bank
National Association ceases to be a party hereto, Agent shall
determine which Lender shall undertake the rights and obligations of
LaSalle Bank National Association under this subsection 3.1B."
1.3 Amendments to Section 5: Representations and Warranties
A. Subsection 5.21 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"5.21 XXXXX.
(i) Company and its Subsidiaries do not guaranty
(pursuant to the XXXXX Guaranty or otherwise) any of XXXXX'x
obligations under the XXXXX
5
Loan Agreement or any repayment obligations in respect of the
principal and interest on the bonds issued in 1984, 1992 or 2001,
the proceeds of which were loaned to XXXXX pursuant to the XXXXX
Loan Agreement. Each of XXXXX and NEWCO are in full compliance under
the XXXXX Service Agreement and the XXXXX Steam Agreement except
where failure to be in compliance could not adversely affect any
Loan Party, Agent or any Lenders and there has not occurred any
"Event of Default" as defined in the XXXXX Service Agreement by
XXXXX, Company or NEWCO. Company and its Subsidiaries are not aware
of any Environmental Claims relating to XXXXX, the XXXXX Facility or
XXXXX'x business operations."
B. Section 5 of the Credit Agreement is hereby further amended by
adding thereto at the end thereof the following:
"5.22 XXXXX/Montenay Transaction Documents.
A. Company has delivered to Lenders complete and correct
copies of the XXXXX/Montenay Transaction Documents, in each case as
in effect as of the Third Amendment Effective Date, and of all
exhibits and schedules thereto.
B. The representations and warranties made by Company and its
Affiliates contained in the XXXXX/Montenay Transaction Documents are
true, correct and complete in all material respects on and as of the
date made or deemed made and Company and its Affiliates have
performed in all material respects all agreements and satisfied all
conditions which the XXXXX/Montenay Transaction Documents provide
shall be performed or satisfied by Company and its Affiliates on or
before the Third Amendment Effective Date.
C. Notwithstanding anything in the XXXXX/Montenay Transaction
Documents to the contrary, the representations and warranties of
Company set forth in subsection 5.22B shall, solely for purposes of
this Agreement, survive the Third Amendment Effective Date for the
benefit of Lenders.
D. All Governmental Authorizations and all consents of other
Persons have been obtained, in each case that are necessary or
advisable in connection with the XXXXX/Montenay Transaction, the
related financings and the other transactions contemplated by the
XXXXX/Montenay Transaction Documents. Each such Governmental
Authorization or consent is in full force and effect. All applicable
waiting periods have expired without any action being taken or
threatened by any competent authority or other Person that would
restrain, prevent or otherwise impose adverse conditions on the
XXXXX/Montenay Transaction, the related financings and the other
transactions contemplated by the XXXXX/Montenay Transaction
Documents. No action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the
foregoing is pending, and the time for any applicable Government
Authority to take action to set aside its consent on its own motion
has expired.
6
E. Company and its Affiliates have all requisite corporate or
other entity power and authority to enter into XXXXX/Montenay
Transaction Documents to which they are a party and to carry out the
transactions contemplated by, and perform their respective
obligations under, the XXXXX/Montenay Transaction Documents.
F. The execution and delivery of the XXXXX/Montenay
Transaction Documents by Company and its Affiliates and the
performance of the XXXXX/Montenay Transaction Documents by Company
and its Affiliates have been duly authorized by all necessary
corporate or other entity action.
G. Company and its Affiliates have duly executed and delivered
the XXXXX/Montenay Transaction Documents to which they are a party
and the XXXXX/Montenay Transaction Documents to which they are a
party are the legally valid and binding obligations of Company and
its Affiliates, enforceable against Company and its Affiliates in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability. Montenay and its Affiliates
have duly executed and delivered the XXXXX/Montenay Transaction
Documents to which they are a party and the XXXXX/Montenay
Transaction Documents to which they are a party are the legally
valid binding obligations of Montenay and its Affiliates,
enforceable against Montenay and its Affiliates in accordance with
their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles
relating to enforceability.
H. The Operating Services Agreement has been fully executed
and delivered and is in full force and effect, and XXXXX has no
further obligations as operator in respect of the XXXXX Service
Agreement. All Governmental Authorizations and all consents of other
Persons (including, without limitation, the City, the Authority and
the Energy Purchaser) have been obtained, in each case that are
necessary or advisable in connection with the replacement of XXXXX
by Montenay Operations as operator of the XXXXX Facility, and all
conditions required to be performed or satisfied in connection with
such replacement have been satisfied. The experience of Montenay
Operations or the parent company that owns 100% of the outstanding
capital stock of Montenay Operations in operating mass-burn resource
recovery facilities similar to the XXXXX Facility equals or exceeds
that of Company and XXXXX, as determined by a nationally recognized
engineer.
I. Company and its Subsidiaries (other than XXXXX) do not have
any obligations under any Existing XXXXX Documents or XXXXX/Montenay
Transaction Documents other than Company's obligations in respect of
the XXXXX Guaranty, the Katy Guaranty and the Katy Letter Agreement
and Xxxx Xxxxxxx' and Company's obligations in respect of the
Xxxxxxx Grate Technology under the XXXXX Joint Venture Agreement.
7
X. XXXXX does not have any obligations under any Existing
XXXXX Documents or XXXXX/Montenay Transaction Documents other than
XXXXX'x obligations in respect of the Excluded Liabilities (as
defined in the XXXXX Joint Venture Agreement), the XXXXX Note, the
XXXXX Pledge Agreement, the XXXXX Limited Partnership Interest
Purchase Agreement, the NEWCO LP Agreement and the XXXXX Loan
Agreement (for so long as XXXXX shall remain a limited partner of
NEWCO and there shall not be a novation under the XXXXX Loan
Agreement pursuant to the XXXXX Assignment and Assumption Agreement
with respect to XXXXX'x liability and obligation to repay debt
arising out of the XXXXX Loan Agreement).
X. XXXXX'x interest in and rights to NDS (as defined in
Section 8.01 of the XXXXX Service Agreement) payments shall continue
on and after the Third Amendment Effective Date for so long as XXXXX
shall remain a limited partner of NEWCO.
L. No material and adverse tax consequences to any Loan Party
shall result from the consummation of the transactions contemplated
by the XXXXX/Montenay Transaction Documents.
M. On and after the Third Amendment Effective Date, NEWCO
shall not be accounted for as a subsidiary of Company on the
consolidated balance sheet of Company, in conformity with GAAP.
O. None of the amendments to the Existing XXXXX Documents made
in connection with the Revenue Refunding Bonds (Savannah
Waste-to-Energy Project), Series 2001 issued by the Authority to
refinance the Revenue Refunding Bonds (Savannah Energy Systems
Company Project), Series 1992 issued in 1992 by the Authority
constitute a material amendment to, or a waiver of any material
rights of Company or any of its Subsidiaries under, or a termination
or agreement to terminate, any Existing XXXXX Documents, in each
case in a manner that could adversely affect Agent or Lenders.
Neither Company nor any of its Subsidiaries executed and delivered
any new agreements or any amendments to the Existing XXXXX Documents
in connection with the issuance of the Revenue Refunding Bonds
(Savannah Energy Systems Company Project), Series 2001 issued by the
Authority, except for the Third Amendment to Loan Agreement between
the Authority and XXXXX dated as of September 1, 2001, the Second
Amendment to Deed to Secure Debt and Security Agreement between
XXXXX and the Authority dated as of September 1, 2001, and the Third
Amendment Amending Exhibit X among the City, the Authority, XXXXX,
the Company and the Bank of New York, as trustee, dated as of
September 1, 2001, a copy of each of which, in each case as in
effect as of the Third Amendment Effective Date, and all exhibits
and schedules thereto, has been delivered to Agent."
8
1.4 Amendments to Section 6: Company's Affirmative Covenants
A. Subsection 6.5 of the Credit Agreement is hereby amended by
inserting the following proviso before the "." contained in the penultimate
sentence therein:
"; provided, that, notwithstanding anything to the contrary in this
Agreement, the assets of any Domestic Subsidiary acquired by Company
after the Third Amendment Effective Date shall not be included in
the calculation of the Revolving Borrowing Base unless and until the
first such audit has occurred with respect to such Domestic
Subsidiary and is satisfactory to Agent".
B. Section 6 of the Credit Agreement is hereby further amended by
adding thereto at the end thereof the following:
"6.13 XXXXX.
Company shall not, and shall not permit any of its
Subsidiaries to, (x) purchase Montenay's interest in NEWCO as its
general partner and/or assume responsibility for the maintenance and
operation of the XXXXX Facility, or (y) cause Montenay (or its
designee) to purchase its limited partnership interest in NEWCO and
transfer any liability or obligation related to the XXXXX Facility
then remaining with XXXXX to NEWCO pursuant to Section 2.6(a) of the
NEWCO LP Agreement without the prior written consent of Requisite
Lenders. Company shall not, and shall not permit any of its
Subsidiaries to, take any other action (other than electing to
terminate the XXXXX Guaranty pursuant to Section 3(a)(i) of the
Operating Guaranty Agreement) which shall have the effect of
terminating any of Montenay Corp.'s indemnification obligations
under Section 11.2(b)(ii) or any other section of the Operating
Guaranty Agreement without the consent of Requisite Lenders. Company
shall, and shall cause each of its Subsidiaries to, diligently
enforce all of their respective rights (including, without
limitation, their indemnification rights) under the XXXXX/Montenay
Transaction Documents."
1.5 Amendments to Section 7: Company's Negative Covenants
A. Subsection 7.1 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (vi), (ii) deleting the "." at the
end of clause (vii) and substituting "; and" therefor, and (iii) adding the
following clause (viii) at the end thereof:
"(viii) XXXXX may become and remain liable with respect to
Indebtedness evidenced by the XXXXX Note, provided that the
aggregate outstanding principal amount of such XXXXX Note shall not
exceed $6,600,000 (as such initial principal amount is reduced from
time to time by any payments thereof) at any time."
9
B. Subsection 7.2A of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (vii), (ii) deleting the "." at the
end of clause (viii) and substituting "; and" therefor, and (iii) adding the
following clause (ix) at the end thereof:
"(ix) Liens granted by XXXXX to the Authority pursuant to the XXXXX
Pledge Agreement."
C. Subsection 7.3(ii)(b) of the Credit Agreement is hereby amended
by deleting the phrase "$750,000 in any Fiscal Year" set forth therein and
substituting therefor the phrase "the following amounts for the following
periods: (1) $750,000 for the period from the Closing Date to the Third
Amendment Effective Date; (2) $800,000 for the period after the Third Amendment
Effective Date to December 31, 2002; (3) $1,000,000 in calendar years 2003 and
2004; (4) $1,050,000 in calendar year 2005; (5) $1,100,000 in calendar years
2006 and 2007; and (6) $550,000 in calendar year 2008 and, in the case of
clauses (2) through (6), only to the extent used for the sole purpose of making
payments on the XXXXX Note".
D. Subsection 7.3 of the Credit Agreement is hereby further amended
by (i) deleting the word "and" at the end of clause (x), (ii) deleting the "."
at the end of clause (xi) and substituting "; and" therefor, and (iii) adding
the following clause (xii) at the end thereof:
"(xii) XXXXX may own the limited partnership interest in NEWCO
transferred to XXXXX on the Third Amendment Effective Date in
accordance with the XXXXX/Montenay Transaction Documents."
E. Subsection 7.5 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (iii) and (ii) adding the following
clauses (v) and (vi) at the end thereof:
", (v) XXXXX may make the scheduled principal payments on the XXXXX
Note, and Company may make payments under the Katy Guaranty to pay
its obligations under the Katy Guaranty in respect of the scheduled
principal payments on the XXXXX Note, in each case so long as the
aggregate amount paid by XXXXX and Company does not exceed the
following amounts in the following calendar years: $800,000 in
calendar year 2002; $1,000,000 in calendar years 2003 and 2004;
$1,050,000 in calendar year 2005; $1,100,000 in calendar years 2006
and 2007; and $550,000 in calendar year 2008, and (vi) Company may
prepay the XXXXX Note pursuant to the Katy Letter Agreement upon the
satisfaction of the following condition: the repayment of all
outstanding Revolving Loans (other than in connection with the
refinancing or the replacement of the credit facilities hereunder);
provided, that the amount of such prepayment of the XXXXX Note shall
not exceed the aggregate amount of cash and Cash Equivalents owned
by Company and its Subsidiaries immediately after (and after giving
effect to) such repayment of all outstanding Revolving Loans;
provided, further, that Company shall not borrow under this
Agreement in order to fund such prepayment of the XXXXX Note."
10
F. Subsection 7.7 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (v), (ii) deleting the "." at the
end of clause (vi) and substituting "; and" therefor, and (iii) adding the
following clause (vii) at the end thereof:
"(vii) XXXXX may transfer its interest in the XXXXX Facility and the
other Contributed Assets to NEWCO in accordance with the NEWCO LP
Agreement, and each of Company and Xxxx Xxxxxxx may transfer all of
their respective rights in and to the Xxxxxxx Grate Technology to
Montenay Corp. in accordance with the XXXXX Joint Venture
Agreement."
G. Subsection 7.12 of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service)
with XXXXX or NEWCO other than the transactions contemplated by the
XXXXX/Montenay Transaction Documents executed and delivered on or
before the Third Amendment Effective Date."
H. Subsection 7.15A of the Credit Agreement is hereby amended by
inserting after the reference "Closing Date" appearing therein the phrase
"(except in the case of the XXXXX Loan Agreement, the XXXXX Service Agreement,
the XXXXX Steam Agreement and the XXXXX Guaranty to the extent amended by the
XXXXX/Montenay Transaction Documents executed and delivered on or before the
Third Amendment Effective Date, a copy of which has been delivered to Agent on
or before the Third Amendment Effective Date) or any XXXXX/Montenay Transaction
Documents (as in effect on the Third Amendment Effective Date)".
1.6 Amendments to Section 8: Events of Default
Subsection 8.17 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"8.17 XXXXX.
(i) The occurrence and continuance of an "Event of
Default" as defined in the XXXXX Service Agreement by XXXXX, Company
or NEWCO that would entitle (upon the granting of any necessary
consents) the Authority or the Trustee (as defined in the XXXXX
Service Agreement) to terminate the XXXXX Service Agreement; (ii)
the payment by Company of an aggregate amount exceeding $1,000,000
under the XXXXX Guaranty (whether in one payment or in multiple
payments) or the occurrence of any event (including a call on the
XXXXX Guaranty) which would obligate Company to make a payment or
payments in an aggregate amount exceeding $1,000,000 under the XXXXX
Guaranty; (iii) the occurrence and continuance of a default by
Montenay Corp. of any of its obligations under the Operating
Guaranty Agreement that could adversely affect any Loan Party, Agent
or any Lenders; (iv) the termination of the XXXXX Steam
11
Agreement; or (v) the XXXXX/Montenay Transaction, or any of the
other transactions to be consummated on or prior to the Third
Amendment Effective Date pursuant to the XXXXX/Montenay Transaction
Documents shall not be consummated in accordance with this Agreement
and the applicable XXXXX/Montenay Transaction Documents on or prior
to the Third Amendment Effective Date, or the XXXXX/Montenay
Transaction or any of the other such transactions shall be unwound,
reversed or otherwise rescinded in whole or in material part for any
reason (other than any such unwinding, reversal or rescission in
material part that could not adversely affect any Loan Party, Agent
or any Lenders):".
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Third Amendment
Effective Date"):
A. On or before the Third Amendment Effective Date, Company shall
deliver to Lenders (or to Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the following, each,
unless otherwise noted, dated the Third Amendment Effective Date:
1. Officer's Certificates of Company, dated a recent date prior to
the Third Amendment Effective Date, certifying that (a) there has been no
change in any of the Loan Parties' Organizational Documents from the date
of the Credit Agreement, and (b) the resolutions attached thereto adopted
by the Governing Bodies of Company, Xxxx Xxxxxxx and XXXXX approving and
authorizing the execution, delivery, and performance of this Amendment and
the XXXXX/Montenay Transaction Documents are in full force and effect
without modification or amendment;
2. Signature and incumbency certificates of the officers of Company,
Xxxx Xxxxxxx and XXXXX;
3. A good standing certificate of Company, Xxxx Xxxxxxx and NEWCO
from the Secretary of State of the jurisdiction of its organization, each
dated a recent date prior to the Third Amendment Effective Date;
4. Ten (10) executed copies of this Amendment executed by Company
and each Credit Support Party;
5. Executed copies of the XXXXX/Montenay Transaction Documents
(including all schedules, exhibits and amendments thereto), each in form
and substance satisfactory to Agent;
12
6. Evidence in form and substance satisfactory to Agent (including
without limitation an Officers' Certificate to the effect set forth in
clauses (i) - (v) below) that:
(i) the XXXXX/Montenay Transaction Documents shall be in full
force and effect and shall not have been amended, supplemented,
waived or otherwise modified without the consent of Agent;
(ii) all conditions to the XXXXX/Montenay Transaction set
forth in the XXXXX/Montenay Transaction Documents shall have been
satisfied in all material respects or the fulfillment of any such
conditions shall have been waived with the consent of Agent;
(iii) the XXXXX/Montenay Transaction shall have occurred in
accordance with the XXXXX/Montenay Transaction Documents;
(iv) the aggregate original principal amount of the XXXXX Note
shall not exceed $6,600,000; and
(v) the Operating Services Agreement shall have been fully
executed and delivered, and XXXXX shall have no further obligations
as operator in respect of the XXXXX Service Agreement; all
Governmental Authorizations and all consents of other Persons
(including, without limitation, the City, the Authority and the
Energy Purchaser) shall have been obtained, in each case that are
necessary or advisable in connection with the replacement of XXXXX
by Montenay Operations as operator of the XXXXX Facility and in
connection with the consummation of the XXXXX/Montenay Transaction,
and all conditions required to be performed or satisfied in
connection with such replacement shall have been satisfied.
7. Evidence, in form and substance satisfactory to Agent, from a
nationally recognized engineer or a consultant satisfactory to Agent, to
the effect that the experience of Montenay Operations or the parent
company that owns 100% of the outstanding capital stock of Montenay
Operations in operating mass-burn resource recovery facilities similar to
the XXXXX Facility equals or exceeds that of Company and XXXXX.
8. An Officers' Certificate of Company, in form and substance
satisfactory to Agent, to the effect that the representations and
warranties in Section 5 of the Credit Agreement are true, correct and
complete in all material respects on and as of the Third Amendment
Effective Date (both before and after giving effect to the XXXXX/Montenay
Transaction and this Amendment) to the same extent as though made on and
as of that date (or, to the extent such representations and warranties
specifically relate to an earlier date, that such representations and
warranties were true, correct and complete in all material respects on and
as of such earlier date) and that Company and the other Loan Parties shall
have performed in all material respects all agreements and satisfied all
conditions which this Amendment, the Credit Agreement as amended by this
Amendment, and the other Loan Documents provide shall be performed or
satisfied by
13
Company and its Subsidiaries on or before the Third Amendment Effective
Date except as otherwise disclosed to and agreed to in writing by Agent.
B. On or before the Third Amendment Effective Date, Requisite
Lenders, LaSalle Bank National Association and Deutsche Bank, AG shall deliver
to Agent copies of this Amendment executed by Requisite Lenders, LaSalle Bank
National Association and Deutsche Bank, AG.
C. On or before the Third Amendment Effective Date, Lenders and
their respective counsel shall have received (i) originally executed copies of
one or more favorable written opinions of Hunton & Xxxxxxxx, in each case
counsel to Loan Parties, in form and substance satisfactory to Agent and its
counsel, dated as of the Third Amendment Effective Date and setting forth
substantially the matters in the opinions designated in Exhibit A to this
Amendment and as to such other matters as Agent acting on behalf of Lenders may
reasonably request and (ii) copies of all opinions issued by counsel to any
party to the XXXXX/Montenay Transaction Documents or issued to any party to the
XXXXX/Montenay Transaction Documents relating to any transactions occurring on
or about the Third Amendment Effective Date pursuant to any of the
XXXXX/Montenay Transaction Documents (including, without limitation, the
opinions referenced in Exhibits D, Q and R of the XXXXX Joint Venture
Agreement), each of which opinions issued by counsel to any Loan Party shall be
accompanied by a written authorization from counsel issuing such opinion stating
that Agent and Lenders may rely on such opinions as though such opinions were
addressed to Agent and Lenders.
D. On or before the Third Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with this Amendment and
all documents incidental thereto not previously found acceptable by Agent,
acting on behalf of Lenders, and its counsel shall be satisfactory in form and
substance to Agent and such counsel, and Agent and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agent may reasonably request.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. Each Loan Party has all requisite
corporate or other entity power and authority to enter into this Amendment and
each of the XXXXX/Montenay Transaction Documents to which it is a party and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "Amended Agreement") and
each of the XXXXX/Montenay Transaction Documents to which it is a party.
B. Authorization of Agreements. The execution and delivery of this
Amendment and each of the XXXXX/Montenay Transaction Documents to which it is a
party and the performance of the Amended Agreement and each of the
XXXXX/Montenay Transaction
14
Documents to which it is a party have been duly authorized by all necessary
corporate or other entity action on the part of each Loan Party.
C. No Conflict. The execution, delivery and performance by each Loan
Party of this Amendment and each of the XXXXX/Montenay Transaction Documents to
which it is a party and the performance by such Loan Party of the Amended
Agreement and each of the XXXXX/Montenay Transaction Documents to which it is a
party do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to the Loan Parties, the
Organizational Documents of the Loan Parties or any order, judgment or decree of
any court or other Government Authority binding on the Loan Parties, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of the Loan Parties,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of Loan Parties (other than Liens created under any of
the Loan Documents in favor of Agent on behalf of Lenders and Liens granted by
XXXXX to the Authority pursuant to the XXXXX Pledge Agreement), or (iv) require
any approval of members or stockholders or any approval or consent of any Person
under any Contractual Obligation of the Loan Parties, except for such approvals
or consents which will be obtained on or before the Third Amendment Effective
Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution, delivery and performance by
the Loan Parties of this Amendment and each of the XXXXX/Montenay Transaction
Documents to which they are a party and the performance by Loan Parties of the
Amended Agreement and each of the XXXXX/Montenay Transaction Documents to which
they are a party do not and will not require any Governmental Authorization
(other than any Governmental Authorizations obtained on or before the Third
Amendment Effective Date and disclosed in writing to Lenders).
E. Binding Obligation. This Amendment and each of the XXXXX/Montenay
Transaction Documents to which any Loan Party is a party have been duly executed
and delivered by the Loan Parties party thereto and this Amendment, the Amended
Agreement and each of the XXXXX/Montenay Transaction Documents to which any Loan
Party is a party are the legally valid and binding obligations of such Loan
Parties party thereto, enforceable against the Loan Parties in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Third Amendment Effective Date (both before and after
giving effect to the XXXXX/Montenay Transaction and this Amendment) to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment and the
15
XXXXX/Montenay Transaction Documents that would constitute an Event of Default
or a Potential Event of Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Holdings and each of the Subsidiary Guarantors is a party to certain
of the Holdings Guaranty and Subsidiary Guaranty and the Collateral Documents
and Company is a party to certain of the Collateral Documents. Company, Holdings
and each of the Subsidiary Guarantors are collectively referred to herein as the
"Credit Support Parties," and the Guaranties and Collateral Documents are
collectively referred to herein as the "Credit Support Documents."
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment and consents
to the amendment of the Credit Agreement effected pursuant to this Amendment.
Each Credit Support Party hereby confirms that each Credit Support Document to
which it is a party or otherwise bound and all Collateral encumbered thereby
will continue to guaranty or secure, as the case may be, to the fullest extent
possible the payment and performance of all "Obligations," "Guarantied
Obligations" and "Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document), including without
limitation the payment and performance of all such "Obligations," "Guarantied
Obligations" or "Secured Obligations," as the case may be, in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support 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 limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the Third Amendment Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment, and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
16
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(i) On and after the Third Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Agent or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE
APPLICATION OF ANOTHER LAW.
E. Counterparts; Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by Company, Requisite Lenders, LaSalle Bank National Association,
Deutsche Bank, AG and each of the Credit Support Parties and
17
receipt by Company and Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
F. Name Change. On and after the Third Amendment Effective Date,
each reference in the Credit Agreement and the other Loan Documents to "Bankers
Trust Company" shall mean and be a reference to "Deutsche Bank Trust Company
Americas."
G. Change of Notice Address under each of the Loan Documents.
Company and its Subsidiaries hereby notify Agent and each Lender that their
notice address under each of the Loan Documents shall be c/o Katy Industries,
Inc., 000 Xxxxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attn: Xxxx
Xxxxxxxxx, Facsimile No.: (000) 000-0000.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
KATY INDUSTRIES, INC.
By:
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
KKTY HOLDING COMPANY, L.L.C. (for
purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Authorized Manager
AETNA LIQUIDATING COMPANY
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
ALL RISK MANAGEMENT SERVICES, INC.
(for purposes of Section 4 only) as a
Credit Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
AMERICAN GAGE & MACHINE COMPANY
(for purposes of Section 4 only) as a
Credit Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-1
ASHFORD HOLDING CORPORATION
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
BACH XXXXXXX, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
BLUFF CITY BUILDING CORP.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
CAPACITY MANAGERS INTERNATIONAL, INC.
(for purposes of Section 4 only) as a
Credit Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
CHATHAM RESOURCE RECOVERY SYSTEMS, INC.
(for purposes of Section 4 only) as a
Credit Support Party
By:
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-2
CONTICO INTERNATIONAL, L.L.C. (for purposes
of Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
DUCKBACK PRODUCTS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
E-R LIQUIDATING COMPANY, INC. (for purposes
of Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
XXXXXX IRON WORKS COMPANY (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
GC/WALDOM ELECTRONICS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-3
GLIT/DISCO, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
GLIT/GEMTEX, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
GLIT, INC. (for purposes of Section 4 only)
as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
HALLMARK HOLDINGS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
XXXXXXXX METALS, L.P.
By: HPMNC, Inc., its General Partner
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-4
XXXXXXX XXXXXXXXXXX, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
HPM OF PENNSYLVANIA, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
HPMNC, INC. (for purposes of Section 4 only)
as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
JEI LIQUIDATING, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
KATY INTERNATIONAL INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-5
KATY INTERNATIONAL, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
KATY OIL COMPANY OF INDONESIA (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
KATY-XXXXXXX, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
KATY-TEWEH PETROLEUM COMPANY (for purposes
of Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-6
K-S ENERGY CORP. (for purposes of Section 4
only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
MICROTRON ABRASIVES, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
PANHANDLE INDUSTRIAL COMPANY, INC. (for
purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
PTR MACHINE CORP.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
PRIMARY COATINGS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-7
PROCESS METALS COMPANY (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
SAVANNAH ENERGY CONSTRUCTION COMPANY, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
SAVANNAH ENERGY SYSTEMS COMPANY (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXXX ELECTRIC BUILDING CO. (for purposes
of Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
S-8
SPIRAL STEP-TOOL COMPANY (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
STERLING-SALEM CORPORATION
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
TTI HOLDINGS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
TRANS-CONTINENTAL LEATHERS, INC. (for
purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-9
WABASH HOLDING CORP. (for purposes of
Section 4 only) as a Credit Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
XXXXX PRODUCTS, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
XXXXX INDUSTRIES, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
WP LIQUIDATING CORP.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-10
X. X. XXXXX WOOD PRESERVING COMPANY (for
purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
CRL EXPORT, INC.
(for purposes of Section 4 only) as a Credit
Support Party
By:
----------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Secretary
S-11
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly Bankers Trust Company),
Individually and as Agent
By:
----------------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Director
S-12
FIRSTAR BANK N.A.,
as a Lender
By:
----------------------------------------------
Name:
Title:
S-13
THE PROVIDENT BANK,
as a Lender
By:
----------------------------------------------
Name:
Title:
S-14
FOOTHILL CAPITAL CORPORATION,
as a Lender
By:
----------------------------------------------
Name:
Title:
S-15
LASALLE BANK NATIONAL ASSOCIATION, as the
new Issuing Lender and as a Lender
By:
----------------------------------------------
Name:
Title:
S-16
GMAC COMMERCIAL CREDIT L.L.C.,
as a Lender
By:
----------------------------------------------
Name:
Title:
S-17
UPS CAPITAL CORPORATION,
as a Lender
By:
----------------------------------------------
Name:
Title:
X-00
XXXXXXXX XXXX, XX, Xxx Xxxx Branch
as the Issuing Lender being replaced
By:
----------------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Director
S-19
EXHIBIT A
[FORM OF OPINION OF COUNSEL TO KATY ENTITIES]
[SEE ATTACHED]
