EXHIBIT 8
January 27, 2002
J Acquisition Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Junior Subordinated Debt Commitment
Gentlemen:
Reference is made to that certain Agreement and Plan of
Merger (the "Agreement"), dated as of the date hereof, by and between J Holdings
Corp., a Delaware corporation ("Parent"), J Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Parent (the "Borrower"), and Xxxxx
Xxxxx, Inc., a Delaware corporation (the "Company"), which agreement
contemplates the acquisition by Parent of 100% of the outstanding shares of the
Company (such acquisition, together with agreements related thereto or
contemplated thereby, representing the "Transaction"). In connection therewith
and in order to finance in part the Transaction, ACI Capital Co., Inc. (the
"Lender") is pleased to advise you that it hereby commits to provide the
Borrower with a Junior Subordinated Debt Financing in an aggregate principal
amount of $9 million (the "Subdebt Financing"). The obligations of the Borrower
under the Subdebt Financing will be secured by a second priority lien on, and
security interest in, substantially all assets of the Borrower (it being
understood that the Company will become the Borrower upon consummation of the
Acquisition), the Parent and all domestic subsidiaries of the Borrower, in each
case subject to such exclusions as the Lender (in its sole and absolute
discretion) may agree. The Lender's commitment to provide the Subdebt Financing
is subject in all respects to satisfaction of the terms and conditions contained
in this commitment letter and in the Outline of Terms and Conditions attached
hereto as Exhibit A (the "Term Sheet").
The Borrower acknowledges that the Term Sheet is intended
as an outline only and does not purport to summarize all the conditions,
covenants, representations, warranties and other provisions which would be
contained in definitive legal documentation for the Subdebt Financing. The loan
documentation for the Subdebt Financing will include, in addition to the
provisions that are summarized in this commitment letter and the Term Sheet,
provisions that, in the reasonable opinion of the Lender, are customary or
typical for this type of financing transaction and other provisions that the
Lender reasonably requires in the context of the proposed transaction.
The Lender's commitment to provide the Subdebt Financing is
subject to (i) the negotiation, execution and delivery of definitive loan
documentation in form and substance satisfactory to the Lender, the Borrower and
their respective counsel, (ii) the satisfaction of the conditions precedent to
the closing of the Transaction set forth in Sections 6.1 and 6.3 (other than
Section 6.3(c) of the Agreement), (iii) all conditions precedent to the
obligation of the Senior Lender (as defined in the Agreement) to consummate the
Senior Financing (as defined in the Agreement) having been met and the Senior
Lender shall intend to and shall be willing and prepared to consummate the
Senior Financing, in each case other than with respect to any conditions
relating to the debt capital investment contemplated by this commitment letter,
the debt capital commitment letter of DB Capital Investors, L.P. of even date
herewith or the equity capital commitment letter of SJF Enterprises, Inc., of
even date herewith, and (iv) satisfaction of the conditions as set forth in the
Term Sheet.
The offer made by the Lender in this commitment letter is
contingent upon execution of the Agreement, and should the Agreement be
executed, the commitment by Lender to provide the Subdebt Financing shall expire
immediately upon the earlier of (i) the termination of the Agreement and (ii)
the Expiration Date (as defined in the Agreement), as may be extended in
accordance with the terms of the Agreement.
Should the terms and conditions of the offer contained
herein meet with your approval, please indicate your acceptance by signing and
returning a copy of this commitment letter to the Lender.
This commitment letter, including the attached Term Sheet
(i) supersedes all prior discussions, agreements, commitments, arrangements,
negotiations or understandings, whether oral or written, of the parties with
respect to the subject matter hereof and thereof, (ii) shall be governed by the
law of the State of New York, (iii) shall be binding upon the parties and their
respective successors and assigns, (iv) may not be relied upon or enforced by
any other person or entity other than the parties hereto and Parent, and (v) may
be signed in multiple counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument. If this
commitment letter becomes the subject of a dispute, each of the parties hereto
hereby waives trial by jury. This commitment letter may be amended, modified or
waived only in a writing signed by the parties hereto.
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Please confirm that the foregoing is in accordance with your understanding by
signing and returning to the Lender the enclosed copy of this Commitment Letter
on or before the close of business on the date hereof, whereupon this Commitment
Letter shall become a binding agreement between us.
Very truly yours,
ACI CAPITAL CO., INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Managing Director
Agreed and accepted on this
27th day of January, 2002:
J ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title:President
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