AMENDMENT XX. 0
XXXXXXXXX XX. 0 ("xxxx Xxxxxxxxx"), dated as of January 29,
1998, among Xxxxx & Lord Industries, Inc., a Delaware corporation
("Industries"), Xxxxx & Lord, Inc., a Delaware corporation ("Xxxxx"), G&L
Service Company, North America, Inc. ("Service Co.") and First Union Corporation
("First Union"), as a Lender and as agent for the Lenders (in such capacity, the
"Agent") to the Senior Subordinated Credit Agreement, dated as of December 19,
1997 among Industries, Xxxxx, Service Co., the lenders named therein and First
Union (the "Credit Agreement").
WHEREAS, under the Credit Agreement, Industries borrowed
$145,617,902.25 from First Union evidenced by a promissory note; and
WHEREAS, following the loan referred to above, the remaining
aggregate principal amount available to be borrowed by Industries pursuant to
the Credit Agreement is $104,382,007.75; and
WHEREAS, the parties hereto desire to increase the aggregate
principal amount to be borrowed under the Credit Agreement and for Xxxxx to
assume the rights and obligations of Industries, and for Industries to become a
Guarantor under, the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereby agree
as follows:
Section 1. Ratification of the Credit Agreement. Xxxxx,
Industries, Service Co. and First Union hereby ratify the Credit Agreement, as
amended and, to the extent of any inconsistencies, superseded pursuant to
Section 5 herein.
Section 2. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have such defined meanings when used
herein.
Section 3. Guarantees. Industries hereby agrees, by its
execution hereof, to become a Guarantor under the terms of Credit Agreement and
to execute a Notation of Guarantee substantially in the form of Exhibit VII to
the Credit Agreement to evidence its Guarantee.
Section 4. Continuing Guarantee of Service Co.. Service Co.
hereby acknowledges, by its execution hereof, that its Guarantee under the
Credit Agreement continues in full force and effect and without interruption.
Section 5. Amendments to the Credit Agreement: The Credit
Agreement is hereby amended and restated as follows:
(A) New Definitions: The following definitions are added to
the Credit Agreement:
"Borrower" or "Company" means Xxxxx & Lord, Inc., a Delaware
corporation.
"Industries" means Xxxxx & Lord Industries, Inc., a Delaware
corporation.
(B) Section 1.1. The following definitions in the Credit
Agreement are amended and restated as follows:
"Change of Control" means the occurrence of one or
more of the following events: (i) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of
all or substantially all of the assets of the Company to any Person or
group of related Persons for purposes of Section 13(d) of the Exchange
Act (a "Group"), together with any Affiliates thereof; (ii) the
approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company; (iii) any
Person or Group (other than the Permitted Holders) shall become the
owner, directly or indirectly, beneficially or of record, of shares
representing more than 45% of the Voting Stock of the Company; (iv) the
Company shall cease to own beneficially all of the Voting Stock of
Industries , free and clear of all Liens other than Liens granted to
secure the Senior Credit Facility or (v) the replacement of a majority
of the Board of Directors of the Company over a two-year period from
the directors who constituted the Board of Directors of the Company at
the beginning of such period, and such replacement shall not have been
approved by a vote of at least a majority of the Board of Directors of
the Company then still in office who either were members of such Board
of Directors at the beginning of such period or whose election as a
member of such Board of Directors was previously so approved.
"Commitment Letter" means the (i) letter agreement
dated November 17, 1997, between Industries and First Union pursuant to
which First Union committed to provide the Bridge Loan to Industries,
subject to the terms and conditions thereof, (ii) the letter agreement
dated November 17, 1997 between Industries and First Union (and the
supplement thereto dated as of December 16, 1997) pursuant to which
Industries committed to pay First Union certain fees and to satisfy
certain other obligations to First Union in respect of the commitment
set forth in (i) above.
"Company Junior Capital Contribution" means the
unsecured subordinated loan to be made by the Company to DT Acquisition
on or prior to the Initial Takedown Closing Date as contemplated by the
Purchase Agreement.
"Darlington Sale and Leaseback Transaction" means the
transaction involving the sale and leaseback of Industries' textile
manufacturing facility located in Darlington County, South Carolina
pursuant to an Inducement and Millage Rate Agreement and a Lease
Purchase Agreement, in each case between Industries and Darlington
County, South Carolina and dated as of December 1, 1997.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan
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(excluding those for which the provision for 30-day notice to the PBGC
has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived) or the failure to
make any required contribution within 30 days of its due date with
respect to any Multiemployer Plan; (iii) the provision by the
administrator of any Pension Plan pursuant to Section 4041 (a) (2) of
ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal
by the Company or any of its Subsidiaries or any of their respective
ERISA Affiliates from any Multiple Employer Plan or the termination of
any such Multiple Employer Plan resulting in liability pursuant to
Sections 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which might reasonably be expected to constitute
grounds under ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (vi) the imposition of
liability on the Company or any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the withdrawal by the Company or any of its Subsidiaries or any
of their respective ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or
the receipt by the Company or any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or
omission which could reasonably be expected to give rise to the
imposition on the Company or any of its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related
charges under Chapter 43 of the Internal Revenue Code or under Section
406, 409 or 502(i) or (1) of ERISA in respect of any Employee Benefit
Pension Plan; (ix) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Pension
Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension
Plan or Employee Pension Benefit Plan to qualify for exemption from
taxation under Section 501(a) of the Internal Revenue Code; or (x) the
imposition of a Lien pursuant to Section 401(a) (29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan. Notwithstanding anything to the contrary contained herein, the
imposition of the Lien arising under the Pension Funding Agreement
shall not be deemed an ERISA Event.
"Existing Senior Credit Facility" means the Amended
and Restated Credit Agreement dated as of June 4, 1996 among
Industries, the lenders named therein and First Union National Bank of
North Carolina, as agent pursuant to which Industries may borrow up to
$218,000,000 in the aggregate at any one time outstanding, together
with the documents related thereto (including, without limitation, the
Wachovia Letter of Credit, any guarantee agreements and security
documents), as such agreements have been or may be amended (including
any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement extending the
maturity of,
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refinancing, replacing or otherwise restructuring (including adding
Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement
or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"First Union Currency Agreement" means the currency
agreement number 144A207 dated as of November 19, 1997 between
Industries and First Union National Bank.
"Guarantors" means Industries, Service Co. and each
future Wholly-Owned Subsidiary of the Company that is organized under
the laws of the United States or any state or commonwealth thereof or
under the laws of the District of Columbia.
"New Senior Credit Facility" means the Loan Agreement
to be entered into on or before the Final Takedown Closing Date between
the Company, the lenders listed therein, the guarantors listed therein
and First Union National Bank, as agent, pursuant to which the Company
may borrow up to $490,000,000 in the aggregate at any one time
outstanding together with the documents related thereto (including,
without limitation, the Wachovia Letter of Credit, any guarantee
agreements and security documents), as such agreements may be amended
(including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring
(including adding Subsidiaries of the Company as additional borrowers
or guarantors thereunder) all or any portion of the Indebtedness under
such agreement or any successor or replacement agreement and whether by
the same or any other agent, lender or group of lenders.
"PBGC" means the Pension benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Pension Funding Agreement" means the agreement dated
January 29, 1998 between the PBGC and the Company providing for
additional funding by the Company to certain pension plans and the
creation of a Lien in favor of the PBGC on certain land and assets of
the Company.
"Permitted Preferred Stock" means any Preferred Stock
issued by the Company or Industries in an aggregate amount not to
exceed $30,000,000 at any one time outstanding and which by its terms
does not permit (i) redemption, liquidation, mandatory sinking fund
payments or the like by a fixed date on or prior to the Maturity Date
and (ii) the payment of cash dividends on or prior to the Maturity Date
at a rate in excess of 8.0%.
"Recovery Event" means the receipt by the Company or
any of its Subsidiaries of any cash insurance proceeds or condemnation
award payable by reason of theft, loss, physical destruction or damage,
taking or similar event with respect to any of their respective
properties or assets.
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"Senior Credit Facility" means the Existing Senior
Credit Facility until the execution and delivery of the New Senior
Credit Facility and the repayment of all obligations under the Existing
Senior Credit Facility and thereafter means the New Senior Credit
Facility.
"Senior Indebtedness" means for any Person the
principal of, premium, if any, and interest on, and all amounts payable
in respect of, all obligations of every nature of the Company from time
to time owed to the lenders under the Senior Credit Facility;
including, without limitation, all obligations in respect of letters of
credit and principal of and interest on and all fees, indemnities, and
expenses payable under the Senior Credit Facility and all obligations
under Interest Rate Agreements entered into with lenders under the
Senior Credit Facility and their respective Affiliates and any
guarantees thereof including any agreement refinancing all or any
portion of the Indebtedness under such Senior Credit Facility. Without
limiting the generality of the foregoing "Senior Indebtedness" shall
include interest accruing thereon subsequent to the occurrence of any
Event of Default specified in Sections 7.6 and 7.7 relating to the
Company, whether or not the claim for such interest is allowed under
any applicable Bankruptcy Law. Notwithstanding the foregoing, "Senior
Indebtedness" of any Person shall not include that portion of any
Indebtedness which is incurred by such Person in violation of this
Agreement.
"Subsequent Transactions" means, collectively, (i)
the closing of the New Senior Credit Facility and the incurrence of the
revolving loans drawn down on the Final Takedown Closing Date
thereunder, (ii) the incurrence of the Final Bridge Loan hereunder on
the Final Takedown Closing Date, (iii) the consummation of the Merger,
(iv) the Acquisition, (v) any other transaction on the Final Takedown
Closing Date contemplated in relation to the foregoing and (vi) the
payment of fees and expenses in connection with the foregoing.
"Transaction Costs" means the fees, costs and
expenses payable by the Company pursuant hereto and other fees, costs
and expenses payable by the Company or a Subsidiary of the Company in
connection with the Transactions.
"Wachovia Letter of Credit" means that irrevocable
letter of credit no. LC 968-044594 dated May 17, 1994 issued by
Wachovia Bank of North Carolina, National Association in favor of First
Citizens Bank & Trust Company, as Trustee under those $7,200,000 South
Carolina Jobs-Economic Development Authority Tax-Exempt Adjustable Mode
Economic Development Revenue Bonds (Xxxxx & Lord Industries, Inc.
Project) Series 1994, for the account of Industries in the original
maximum amount of $7,830,000, as such letter of credit may be modified,
supplemented, extended and replaced from time to time.
(C) Section 2.1A. Section 2.1A shall be amended and restated
as follows:
A. Bridge Loan Commitment; Assignment and Assumption.
(a) Subject to the terms and conditions of this Agreement and in
reliance upon the
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representations and warranties of the Company and Industries herein set
forth, the Lenders hereby agree to lend to Industries on the Initial
Takedown Closing Date $145,617,902.25 in the aggregate (the "Initial
Bridge Loan") and to the Borrower on the Final Takedown Closing Date
$129,382,097.75 in the aggregate (the "Final Bridge Loan," and together
with the Initial Bridge Loan, the "Bridge Loan"), each such Lender
committing to lend the aggregate amount set forth next to such Lender's
name on the signature pages hereto. The Lenders' commitments to make
the Initial Bridge Loan to Industries and the Final Bridge Loan to the
Borrower pursuant to this Section 2.1 A are herein called individually,
the "Bridge Loan Commitment" and collectively, the "Bridge Loan
Commitments."
(b) Without prejudice to its obligations as a
Guarantor, Industries hereby assigns to the Borrower and is thereby
released from, and the Borrower hereby assumes, all of Industries'
rights and obligations as a borrower under this Agreement, including,
without limitation, the rights and obligations of Industries with
respect to the Initial Bridge Loan.
(c) In connection with the assignment and assumption
described in subparagraph (b) of this Section 2.1A, the Original Bridge
Note issued on the Initial Takedown Closing Date by Industries to
evidence the Initial Bridge Loan shall be canceled and, as a
replacement therefor, the Borrower shall execute and deliver to the
Lenders on the date hereof an Original Bridge Note substantially in the
form of Exhibit I in the principal amount of $145,617,902.25.
(D) Section 2.5. Section 2.5 shall be amended and restated as
follows:
2.5 Use of Proceeds
The proceeds of the Initial Bridge Loan will be used
to make the Company Junior Capital Contribution. The proceeds of the
Final Bridge Loan shall be applied by the Borrower, together with
borrowings under the Senior Credit Facility, to finance the Acquisition
and pay the Transaction Costs.
(E) Section 3.1. Section 3.1 (5) shall be amended and restated
as follows:
(5) The Company shall have delivered to the Agent
Officers' Certificates from the Company in form and substance
satisfactory to the Agent to the effect that (i) the representations
and warranties in Section 4 hereof are true, correct and complete in
all material respects on and as of the Initial Takedown Closing Date or
Final Takedown Closing Date, as the case may be, to the same extent as
though made on and as of that date, (ii) the Company, has performed and
complied with in all material respects all covenants and conditions to
be performed and observed by the Company and (iii) all conditions to
the consummation of the Initial Transactions or Subsequent
Transactions, as the case may be, have been satisfied substantially on
the terms set forth therein and have not been waived or amended without
the Agent's prior written consent which consent shall not be
unreasonably withheld.
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(F) Section 3.3. Section 3.3 (1) shall be amended and restated
as follows:
(1) The Agent shall have received, on behalf of the
Lenders the following items, each of which shall be in form and
substance satisfactory to the Agent and, unless otherwise noted, dated
the Final Takedown Closing Date:
(a) bring-down certificates or similar certificates
of status or compliance with respect to the items furnished pursuant to
Section 3.1 (1) (a), in each case covering the period from the Initial
Takedown Closing Date to the Final Takedown Closing Date; and
(b) executed or conformed copies of the Merger
Agreement and a copy of each legal opinion delivered in connection
therewith, and all documents and instruments relating thereto; and
(c) (i) executed or conformed copies of the
Definitive Purchase Agreement and a copy of each legal opinion
delivered in connection with the Definitive Purchase Agreement, and all
documents and instruments related thereto, (ii) an Officers'
Certificate from the Company certifying that the Definitive Purchase
Agreement is in full force and effect on the Final Takedown Closing
Date and no material term or condition thereof has been amended,
modified or waived from the form delivered to the Agent prior to the
execution thereof except with the prior written consent of the Agent
(which consent shall not be unreasonably withheld or delayed) and (iii)
an Officers' Certificate from the Company to the effect that each party
to the Definitive Purchase Agreement has performed or complied with all
agreements and conditions contained therein and any agreements or
documents related thereto to be performed or complied with on or before
the Final Takedown Closing Date, and no party is in default in the
performance or compliance with any of the terms or provisions thereof;
and
(d) (i) executed or conformed copies of the New
Senior Credit Facility and all documents and instruments related
thereto, (ii) an Officers' Certificate from the Borrower certifying
that the New Senior Credit Facility is in full force and effect on the
Initial Takedown Closing Date and no material term or condition thereof
has been amended, modified or waived from the form delivered to the
Agent a reasonable time prior to the execution thereof except with the
prior written consent of the Agent (which consent shall not be
unreasonably withheld or delayed) and (iii) Officers' Certificates from
the Borrower to the effect that the Borrower has performed or complied
with all agreements and conditions contained in the New Senior Credit
Facility and any agreements or documents related thereto to be
performed or complied with on or before the Initial Takedown Closing
Date, and the Borrower is not in default in the performance or
compliance with any of the terms or provisions thereof.
(G) Section 4. The introductory paragraph to Section 4 shall
be amended and restated as follows::
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In order to induce the Lenders to enter into this
Agreement and to make the Bridge Loan, the Company represents and
warrants to the Lenders that the following statements are true and
correct; it being understood that representations and warranties made
pursuant to this Section 4, insofar as relating to the Acquired Assets
and insofar as made on or before the Initial Takedown Closing Date, are
being made only to the best knowledge of the Company based on publicly
available sources of information.
(H) Section 4.1. Section 4.1(c) shall be amended and restated
as follows:
(c) All of the Voting Stock of Industries is
beneficially owned by the Company free and clear of all Liens other
than Liens granted to secure the Senior Credit Facility.
(I) Section 4.13. Section 4.13A shall be amended and restated
as follows:
Except as described in Schedule G hereto, no ERISA
Events have occurred or are reasonably expected to occur which
individually or in the aggregate resulted in or might reasonably be
expected to result in a liability of the Company or any of its
Subsidiaries or any of their respective ERISA Affiliates which would
reasonably be expected to have a Material Adverse Effect.
(J) Section 6.1. Section 6.1(ii) shall be amended and restated
as follows:
Indebtedness (A) of up to $218,000,000 incurred
pursuant to the Existing Senior Credit Facility or (B) upon termination
of, and repayment in full of all amounts due under the Existing Senior
Credit Facility, Indebtedness of up to $490,000,000 in the aggregate at
any one time outstanding under the New Senior Credit Facility, in each
case, reduced by any required permanent repayments (which are
accompanied by a corresponding permanent commitment reduction)
thereunder;
(K) Section 6.2. Section 6.2 shall be amended and restated by
inserting the following immediately after clause (xiv) therein:
(xv) Liens in favor of the PBGC granted pursuant to
the Pension Funding Agreement.
(L) Section 6.7. Section 6.7 shall be amended and restated as
follows:
Subject to Section 5.2 and other than the sale of
100% of a Subsidiary of the Company in accordance with Section 2.4A(ii)
(a) and Section 6.15, the Company shall not, and shall not cause or
permit any of the Subsidiaries to, directly or indirectly, enter into
any transaction, or series of related transactions, of merger,
amalgamation, consolidation or combination, or consolidate, or
liquidate, windup or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, sublease, transfer or otherwise
dispose of, in one transaction or in a series of transactions, all or
substantially all of its business, property or assets, whether now
owned or hereafter acquired, except that any Subsidiary of the Company
may be merged, amalgamated, consolidated or combined with
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or into the Company or any Guarantor or be liquidated, wound up or
dissolved, or all or substantially all of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or in a series of transactions, to the Company
or to any Guarantor; provided that (A) no Potential Event of Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (B) in the case of such a merger, amalgamation,
consolidation or combination of the Company or a Guarantor and a
Subsidiary of the Company, the Company or the Guarantor shall be the
continuing or surviving corporation, and (C) the surviving entity (I)
continues to be bound as such under this Agreement or the Guarantee of
such Guarantor, as the case may be, and (II) executes and delivers to
the Agent immediately upon consummation of such transaction a written
confirmation or acknowledgment to such effect, in form and substance
satisfactory to the Agent, together with evidence of appropriate
corporate power, authority and action and a written legal opinion in
form and substance satisfactory to the Agent to the effect that this
Agreement and such Guarantee continue to be a legal, valid and binding
obligation of such entity, enforceable against such entity in
accordance with its terms (subject to customary exceptions in respect
of bankruptcy, insolvency and other equitable remedies) and with
respect to such other matters as the Agent may reasonably request.
(M) Section 6.10. Section 6.10 shall be amended and restated
as follows:
(a) Except for any sale of 100% of the Capital Stock
or other equity securities of any of the Company's Subsidiaries in
compliance with the provisions of Section 6.7, the Company will not and
will not permit any of the Subsidiaries to directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any shares of
Capital Stock or other equity securities of any of the Subsidiaries,
except (i) Permitted Preferred Stock issued by Industries, (ii) to
qualify directors if required by applicable law, (iii) to the Company
or to a Wholly-Owned Subsidiary of the Company, (iv) Asset Sales made
in compliance with this Agreement and (v) Liens in favor of the lenders
under the Senior Credit Facility.
(b) The Company will not (i) hold any assets other
than the Capital Stock of its Subsidiaries, (ii) have any liabilities
other than (A) the liabilities under the Loan Documents and the Senior
Credit Facility, (B) tax liabilities in the ordinary course of
business, (C) loans and advances permitted under this Agreement, (D)
corporate, administrative and operating expenses in the ordinary course
of business and (iii) engage in any business other than (A) owning the
Capital Stock of its Subsidiaries and activities incidental or related
thereto and (B) acting as a borrower hereunder and under the Senior
Credit Facility.
(N) Section 7.13. The last paragraph of Section 7.13 shall be
amended and restated as follows:
THEN (i) upon the occurrence of any Event of Default
described in the foregoing Sections 7.6 or 7.7, all of the unpaid
principal amount of and accrued interest on the Bridge Loan and all
other outstanding Obligations shall automatically become
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immediately due and payable, without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly
waived by the Company, and the commitments of the Lenders hereunder
shall, thereupon terminate and (ii) upon the occurrence of any other
Event of Default, the Agent shall upon written notice of the holder or
holders of a majority in aggregate principal amount of the Bridge Loan
then outstanding, by written notice to the Company and the agent under
the Senior Credit Facility, declare all of the unpaid principal amount
of and accrued interest on the Bridge Loan and all other outstanding
obligations to be, and the same shall forthwith become, due and
payable, and the obligations of the Lenders hereunder shall thereupon
terminate; provided that if any declaration of acceleration under this
Agreement occurs solely because an Event of Default set forth in
Section 7.2 has occurred and is continuing, such declaration of
acceleration shall be automatically annulled if the holders of the
Indebtedness which is the subject of such Event of Default have
rescinded their declaration of acceleration in respect of such
Indebtedness within thirty days of such acceleration of such
Indebtedness and the Agent has received written notice thereof within
such time and if no other Event of Default has occurred during such
thirty-day period which has not been cured or waived in accordance with
this Agreement. Nevertheless, if at any time after acceleration of the
maturity of the Bridge Loan, the Borrower shall pay all arrears of
interest and all payments on account of the principal thereof which
shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by law, on overdue interest, at
the rates specified in this Agreement or the Bridge Notes) and all
Events of Default and Potential Events of Default (other than
non-payment of principal of and accrued interest on the Bridge Notes
due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to Section 12.6, then the Agent shall, upon written
notice of the holders of a majority in aggregate principal amount of
the Bridge Loan then outstanding, by written notice to the Company
rescind and annul the acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential
Event of Default or impair any right consequent thereon.
(O) Section 12.5. Section 12.5 shall be amended and restated
as follows:
Subject to Section 8, in addition to any rights now
or hereafter granted under applicable law and not by way of limitation
of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Lender, the Agent and each subsequent holder
of any Bridge Note is hereby authorized by the Borrower at any time or
from time to time, without notice to the Borrower, or to any other
Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special,
including, but not limited to, Indebtedness evidenced by certificates
of deposit, whether matured or unmatured but not including trust
accounts or any other accounts held for the benefit of another Person)
and any other Indebtedness at any time held or owing by such Person or
any such subsequent holder to or for the credit or the account of the
Borrower against and on account of the obligations and liabilities of
the Borrower to such Person or such subsequent holder under this
Agreement and the Bridge Notes, including, but not limited to, all
claims of any nature or description arising out of or connected with
this Agreement or the Bridge Notes, irrespective of whether or not (a)
such Person or such subsequent holder shall have made any demand
hereunder or
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(b) such Person or such subsequent holder shall have declared the
principal of or the interest on its portion of the Bridge Loan and its
Bridge Notes and other amounts due hereunder to be due and payable as
permitted by Section 7 and although said obligations and liabilities,
or any of them, may be contingent or unmatured.
Section 6. Counterparts. This Amendment and any amendments,
waivers, consents or supplements 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. This Amendment shall
become effective upon the execution of a counterpart hereof by each of the
parties hereto, and delivery thereof to the Agent or, in the case of the
Lenders, written telex or facsimile notice or telephonic notification (confirmed
in writing) of such execution and delivery. The Agent will give the Company and
each Lender prompt notice of the effectiveness of this Agreement.
Section 7. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed and delivered as of the day and year first written above.
BORROWER
XXXXX & LORD, INC.
By: /s/ Xxxxxxx X.Xxxxxx
Name: Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
Notice Address:
0000 XxXxxxx Xxxx
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy (000) 000-0000
GUARANTORS:
XXXXX & LORD INDUSTRIES, INC.
By: /s/ Xxxxxxx X.Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer, Treasurer and
Secretary
Notice Address:
0000 XxXxxxx Xxxx
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy (000) 000-0000
G&L SERVICE COMPANY, NORTH AMERICA, INC.
By: /s/ Xxxxxxx X.Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President, Treasurer and Secretary
Notice Address:
0000 XxXxxxx Xxxx
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy (000) 000-0000
AGENT:
FIRST UNION CORPORATION
as agent
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:
Notice Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
LENDERS:
FIRST UNION CORPORATION
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:
Notice Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
