April 14, 2009
April 14, 2009
Xxxxxxx Industries, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
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Re: |
Waiver under Second Amended and Restated Registration Rights Agreement |
Ladies/Gentlemen:
Please refer to the Second Amended and Restated Registration Rights Agreement dated as of December 11, 2008 (the “Registration Rights Agreement”) among Xxxxxxx Industries, Inc. (the “Company”) and the stockholders of the Company identified on the signature page thereto. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Registration Rights Agreement.
At the request of the Company, the Majority Holders of the Registrable Securities and the Majority Holders of the Warrant Shares waive the requirement under Section 1.2(a)(ii) of the Registration Rights Agreement which requires the Company to file a Registration Statement on Form S-3 under the Securities Act registering the resale under Rule 415 under the Securities Act of all of the Registrable Securities that may be issued upon the exercise of the Warrants by April 10, 2009, so long as the Company complies with such requirement not later than May 31, 2009.
This waiver letter is limited to the matters specifically set forth herein and does not constitute a waiver, consent or amendment with respect to any other matter whatsoever. Except as specifically set forth herein, the Registration Rights Agreement shall remain in full force and effect and is hereby ratified in all respects.
This waiver letter shall become effective when counterparts hereof executed by the Company, the Majority Holders of the Registrable Securities and the Majority Holders of the Warrant Shares.
This waiver letter may be executed in counterparts and by the parties hereto on separate counterparts. A signature page hereto delivered by facsimile or .pdf shall be effective as delivery of an original counterpart.
This letter agreement shall be a contract made under and governed by the laws of the State of Indiana applicable to contracts made and to be performed entirely within such State.
-Signature pages follow-
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XXXXXXX INDUSTRIES, INC. |
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By: /s/ Xxxx X. Xxxxxx |
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Xxxx X. Xxxxxx, Executive Vice President - Finance |
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TONTINE CAPITAL PARTNERS, L.P. |
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By: Tontine Capital Management, L.L.C., its general partner |
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By: /s/ Xxxxxxx X. Xxxxxxx |
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Xxxxxxx X. Xxxxxxx, as managing member |
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TONTINE CAPITAL OVERSEAS MASTER FUND, L.P. |
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By: Tontine Capital Overseas GP, L.L.C., its general partner |
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By: /s/ Xxxxxxx X. Xxxxxxx |
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Xxxxxxx X. Xxxxxxx, as managing member |
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JPMORGAN CHASE BANK, N.A. |
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By /s/ Xxxxxxx Xxxxx |
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Name: Xxxxxxx Xxxxx |
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FIFTH THIRD BANK |
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By________________________________________ |
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Name: Xxxxx X. Xxxxxx |
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BANK OF AMERICA, N.A., as successor to LaSalle Bank National Association |
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By /s/ Xxxxx X. Xxxxx |
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Name: Xxxxx X. Xxxxx |
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KEY BANK, NATIONAL ASSOCIATION |
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By /s/ Xxxx X. Xxxxxxx |
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Name: Xxxx X. Xxxxxxx |
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RBS CITIZENS, NATIONAL ASSOCIATION, as successor by merger with Charter One Bank |
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By /s/ Xxxxxx X. Xxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxx |
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ASSOCIATED BANK |
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By________________________________________ |
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Name: Xxxxxxx X. XxXxxx |
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NATIONAL CITY BANK |
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By________________________________________ |
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Name: |
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1ST SOURCE BANK |
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By________________________________________ |
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Name: Xxxx Xxxxx |
