EXHIBIT 99.2
EXECUTION
CONSENT AND EIGHTH AMENDMENT
This CONSENT AND EIGHTH AMENDMENT (this "Consent") is
entered into as of July 17, 1997, by and among XXXXXX MANUFACTURING
AND TECHNOLOGY, INC., a Delaware corporation (the "Borrower"),
XXXXXX TECHNOLOGY, INC., a Delaware corporation ("Technology"),
XXXXXX METALS TECHNOLOGY, INC., a Delaware corporation ("Metals"),
the lenders parties to the Loan Agreement referred to below (the
"Lenders"), and TRANSAMERICA BUSINESS CREDIT CORPORATION, a
Delaware corporation, as agent (the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
heretofore entered into a Loan and Security Agreement dated October
22, 1993, as amended (the "Loan Agreement"); and
WHEREAS, pursuant to a Continuing Guaranty and Security
Agreement, dated October 22, 1993, as amended (the "Technology
Guaranty"), executed by Technology in favor of the Agent,
Technology has guaranteed certain indebtedness, obligations and
liabilities of the Borrower to the Agent and the Lenders under the
Loan Agreement;
WHEREAS, pursuant to the Airbag Collateral Security Agreement,
the Obligations have been secured by a Lien upon the Airbag
Collateral;
WHEREAS, Technology and the Borrower have heretofore entered
into a Subsidiary Loan and Security Agreement dated October 22,
1993, as amended (the "Technology Loan Agreement"), pursuant to
which Technology has executed in favor of the Borrower a Term Note
(as defined in the Technology Loan Agreement and hereinafter
referred to as the "Technology Term Note") and has granted to the
Borrower a Lien upon all of Technology's Collateral (as defined in
the Technology Loan Agreement and hereinafter referred to as the
"Technology Collateral");
WHEREAS, as of the date hereof, the outstanding principal
balance of the Technology Term Note is $2,499,983;
WHEREAS, Metals and the Borrower have heretofore entered into
a Subsidiary Loan and Security Agreement dated October 22, 1993, as
amended (the "Metals Loan Agreement"); and
WHEREAS, pursuant to the Collateral Assignment Agreement, the
Borrower has collaterally assigned to the Agent and the Lenders all
of the Borrower's rights and Liens under or relating to the Metals
Loan Agreement;
WHEREAS, the Borrower and Technology have requested that the
Agent and the Lenders agree to release the Technology Guaranty (the
"Technology Guaranty Release") and, in connection therewith, the
Airbag Collateral (the "Airbag Collateral Release");
WHEREAS, the Senior Notes are secured by the Airbag Collateral
and the Borrower is required to comply with the provisions of the
Indenture (the "Senior Note Indenture") under which the Senior
Notes were issued in order for the Collateral Agent to be permitted
to consummate the Airbag Collateral Release;
WHEREAS, pursuant to Section 23(ii) of the Airbag Collateral
Security Agreement, upon the consummation of the Technology
Guaranty Release, the Airbag Collateral Security Agreement shall
terminate, except as otherwise set forth in Section 23 of the
Airbag Collateral Security Agreement;
WHEREAS, the Borrower intends to contribute the Technology
Term Note to the capital of Technology (the "Technology Capital
Contribution") and, in connection therewith, the Borrower desires
to terminate (the "Technology Loan Termination") the Technology
Loan Agreement and all Loan Documents (as defined therein and
hereinafter referred to as the "Technology Loan Documents") and to
release (the "Technology Collateral Release") the Technology
Collateral;
WHEREAS, the Borrower and Metals desire to amend the Metals
Loan Agreement to provide for (i) an additional term loan (the
"Metals Additional Term Loan") to be made by the Borrower to Metals
in an amount equal to the outstanding principal amount of the
Technology Term Note immediately prior to the effectiveness of the
Technology Capital Contribution and, in connection therewith, to
cause Metals to execute a new term note in favor of the Borrower in
the amount of the Metals Additional Term Loan and (ii) an increase
of $3,500,000 in the maximum principal amount of the Revolving Loan
facility made available by Borrower to Metals (the "Revolving Loan
Facility Increase") and, in connection therewith, to cause Metals
to execute an amended and restated revolving note in favor of the
Borrower reflecting such increase;
WHEREAS, the Technology Guaranty Release, the Airbag
Collateral Release, the Technology Capital Contribution, the
Technology Loan Termination, the Technology Collateral Release, the
Metals Additional Term Loan and the Revolving Loan Facility
Increase (each, individually, a "Proposed Transaction" and,
collectively, the "Proposed Transactions") require the written
consent of the Agent and the Lenders, and the Borrower and
Technology have requested that the Agent and Lenders so consent;
and
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WHEREAS, the Agent and the Lenders are willing to consent to
the Proposed Transactions on the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein and not
defined herein shall have the respective meanings given to such
terms in the Loan Agreement.
2. Consent to Proposed Transactions.
2.1. Consent. The Agent and the Lenders hereby consent
to the Proposed Transactions; provided, however, that such consent
is subject to conditions set forth in Section 2.2 of this Consent.
2.2. Conditions to Consent. The consent provided for in
Section 2.1 of this Consent is subject to the following conditions:
(a) Each Proposed Transaction shall be consummated and
become effective simultaneously with the consummation and
effectiveness of all of the other Proposed Transactions (the
date of the consummation of the Proposed Transactions being
hereinafter referred to as the "Transaction Closing Date");
(b) The Agent shall have reviewed and approved all
documents and instruments to be executed and delivered in
connection with the Technology Capital Contribution and the
Technology Loan Termination, and such Proposed Transactions
shall be consummated in accordance therewith;
(c) The original principal amount of the Metals
Additional Term Loan shall not exceed the principal balance of
the Technology Term Note outstanding on the Transaction
Closing Date immediately before giving effect to the
Technology Capital Contribution;
(d) The Borrower and Metals shall have executed an
amendment (the "Metals Amendment") to the Metals Loan
Agreement, substantially in the form of Exhibit A attached
hereto, Metals shall have executed and delivered the
Additional Term Note (as defined therein) and the Revolving
Note attached thereto (the "Amended and Restated Revolving
Note") and the Borrower and Metals shall have delivered such
other documents and instruments in connection therewith as the
Agent shall require, each in form and substance satisfactory
to the Agent;
(e) The Borrower and Metals shall have executed and
delivered to the Agent an instrument, in form and substance
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satisfactory to the Agent, acknowledging and confirming that
the Metals Amendment, the Additional Term Note and the Amended
and Restated Revolving Note constitute Subsidiary Loan
Documents as defined under and collaterally assigned to the
Agent pursuant to the Collateral Assignment Agreement; the
Borrower shall have endorsed the Additional Term Note and the
Amended and Restated Revolving Note to the order of the Agent;
and the Borrower shall have delivered the originals of the
Additional Term Note and the Amended and Restated Revolving
Note to the Agent or its counsel, Xxxxxx & Xxxxx, in pledge,
pursuant to the Loan Agreement and the Collateral Assignment
Agreement;
(f) The Agent shall have received a copy of the
resolutions (in form and substance reasonably satisfactory to
the Agent) of the Board of Directors of each of the Borrower,
Technology and Metals authorizing (i) the execution, delivery
and performance of this Consent, the documents referred to
herein, and the other Loan Documents contemplated hereby and
thereby, and (ii) the consummation of the Proposed
Transactions and the other transactions contemplated hereby
and thereby, all certified by the Secretary or an Assistant
Secretary of each of the Borrower, Technology and Metals on
the date hereof. Such certificates shall state that the
resolutions set forth therein have not been amended, modified,
revoked or rescinded as of the date of such certificate;
(g) On the date hereof, immediately after giving effect
to this Consent, and on the Transaction Closing Date: no
Default or Event of Default under and as such terms are
defined and used in the Senior Note Indenture and the
Indenture (the "Discount Debenture Indenture") under which the
Discount Debentures are issued shall have occurred and be
existing; neither the Senior Notes nor the Discount Debentures
shall have been accelerated (whether by declaration or
otherwise); and the Senior Note Trustee shall not have
delivered a notice of acceleration to the Collateral Agent;
(h) On and as of the Transaction Closing Date, the
Collateral Agent shall have received all certificates,
Opinions of Counsel (as defined in the Senior Note Indenture)
and other documents required pursuant to the provisions of
Sections 15.03 and 15.04 of the Senior Note Indenture and all
other conditions, if any, for the release of Airbag Collateral
required by the Senior Note Indenture, the Discount Debenture
Indenture or applicable law shall have been satisfied to the
satisfaction of the Collateral Agent;
(i) No Default, Event of Default or Subsidiary Event of
Default shall have occurred and be existing either on the date
hereof, immediately after giving effect to this Consent or on
the Transaction Closing Date;
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(j) The representations and warranties contained herein,
in the Loan Agreement and in all other Loan Documents (other
than representations and warranties that expressly speak only
as of a specified different date) shall be true and correct as
of the date hereof, immediately after giving effect to this
Consent, and on the Transaction Closing Date;
(k) The Agent shall have received a certificate, in form
and substance satisfactory to the Agent, dated the Transaction
Closing Date and signed by the President or a Vice President
and the Treasurer or Controller of the Borrower certifying (x)
the principal balance of the Technology Term Note outstanding
on the Transaction Closing Date immediately before giving
effect to the Technology Capital Contribution, (y) that the
conditions set forth in this Section 2.2 have been fulfilled,
and (z) such other matters as the Agent shall reasonably
require;
(l) The Agent shall have received an opinion of Xxxx X.
Xxxxxxxxx, Esq., Vice President, Secretary and General Counsel
of Xxxxxx Industries, Inc. and counsel to the Borrower,
addressed to the Agent, the Collateral Agent and the Lenders
and in form and substance satisfactory to the Agent;
(m) The Agent shall have received such other agreements,
opinions, certificates, representations, instruments and other
documents as it may reasonably require, all in form and
substance satisfactory to the Agent;
(n) Such consent is strictly limited to the facts set
forth herein; and
(o) All other conditions set forth in Section 6 hereof
shall have been satisfied.
3. Representations and Warranties. The Borrower, Technology
and Metals hereby represent and warrant to the Agent and the
Lenders that (a) the execution, delivery and performance of the
this Consent, and the other documents and instruments to be
executed and delivered in connection herewith by the Borrower,
Technology and Metals are within their respective corporate powers
and have been duly authorized by all necessary corporate action,
(b) no consent, approval, authorization of, or declaration or
filing with, any governmental or public authority, and no consent
of any other Person, is required in connection with the execution,
delivery and performance of this Consent and the other documents
and instruments to be executed and delivered in connection herewith
by the Borrower, Technology and Metals, except for this Consent and
those others already duly obtained, (c) this Consent has been duly
executed by the Borrower, Technology and Metals and constitutes the
legal, valid and binding obligation of the Borrower, Technology and
Metals, enforceable against them in accordance with its terms, (d)
the execution, delivery and performance by the Borrower, Technology
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and Metals of this Consent and the other documents and instruments
to be executed and delivered in connection herewith by the
Borrower, Technology and Metals do not and will not conflict with,
or constitute a violation or breach of, or constitute a default
under, or result in the creation or imposition of any Lien upon the
property of the Borrower, Technology or Metals (other than Liens
the creation of which are expressly contemplated hereunder) by
reason of the terms of (i) any contract, mortgage, Lien, lease,
agreement, indenture, or instrument to which the Borrower,
Technology or Metals is a party or which is binding upon it, (ii)
any requirement of law applicable to the Borrower, Technology or
Metals or (iii) the Certificate or Articles of Incorporation or By-Laws
of the Borrower, Technology or Metals, (e) no event has
occurred and is continuing which constitutes a Default, an Event of
Default or a Subsidiary Event of Default, (f) the Metals Additional
Term Loan constitutes Indebtedness, as defined in the Senior Note
Indenture and the Discount Debenture Indenture, that is permitted
under Section 4.12(e) of each of such indentures, and (g) after
giving effect to the Proposed Transactions, Technology will have no
material assets and no material liabilities.
4. Covenant by Borrower and Technology. The Borrower hereby
covenants that, from and after the Transaction Closing Date, it
will not allow Technology to, and Technology hereby covenants that,
from and after the Transaction Closing Date, it will not, possess
or acquire any material assets, have or incur any material
liabilities or conduct any material business.
5. Amendments to Loan Agreement. Effective as of the
Transaction Closing Date immediately after the consummation of the
Proposed Transactions, the Loan Agreement shall be amended in the
following respects:
5.1. The definition of the term "Non-Operating
Subsidiaries" set forth in Section 1.1 of the Loan Agreement shall
be amended in its entirety to read as follows:
"Non-Operating Subsidiaries" shall mean individually
and in the aggregate Xxxxxxx Corporation, Xxxxxxx Aero
Engineering Corporation, The Waterbury Button Company,
Xxxxxx International Investment Corporation, Xxxxxx
Automotive Products, Inc., XxXxxxxx Industries, Inc.,
Dimetrics International Inc., WDC, Inc., Xxxxxx Canada,
Inc. and Xxxxxx Technology, Inc.
5.2. The words "(other than the stock of Xxxxxx
Technology, Inc., which shall be pledged under and pursuant to the
Airbag Collateral Security Agreement)" set forth in the definition
of the term "Pledged Stock" shall be deleted.
5.3. The words "Xxxxxx Technology, Inc., a Delaware
corporation" set forth in Schedule 1.3 of the Loan Agreement shall
be deleted.
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5.4. The row beginning with the words "Xxxxxx Technology,
Inc." in the column entitled "Name of Sub," and all information in
such row, shall be deleted from Schedule 2.1 of the Loan Agreement.
6. Conditions to Effectiveness. This Consent shall be
effective as of the date first above written upon satisfaction of
the following conditions precedent:
6.1. Execution of this Consent. The Agent shall have
received a copy of this Consent duly executed by the Borrower,
Technology, Metals and Lenders constituting the Required Lenders.
6.2. Confirmation of Loan Documents. Each Subsidiary
shall have executed the Confirmation of Loan Documents set forth
below.
7. Authorization to Sign Metals Amendments, Releases and
Other Documents. By their signatures below, the Lenders hereby
authorize TBCC, as Agent and as collateral agent for the Lenders
and the Senior Note Trustee under the Airbag Collateral Security
Agreement (a) to execute and deliver such documents and instruments
as are necessary or appropriate, in TBCC's judgment, to effectuate,
on and after the Transaction Closing Date, the Technology Guaranty
Release, the Airbag Collateral Release, the Technology Loan
Termination and the Technology Collateral Release; (b) to consent
to the execution and delivery of the Metals Amendment,
substantially in the form of Exhibit A attached hereto; (c) to
consent to the delivery of such other documents and instruments in
connection with the Proposed Transactions as the Agent shall
require, each in form and substance satisfactory to the Agent; and
(d) to execute and deliver such written consents, releases,
terminations and other documents and instruments, and to take such
other action, in connection with the Proposed Transactions as the
Agent shall deem appropriate.
8. Reference to and Effect on Loan Documents.
8.1. Except as specifically modified herein, all of the
terms of the Loan Agreement, the Technology Loan Agreement and the
Metals Loan Agreement shall remain unchanged and in full force and
effect.
8.2. Except as expressly set forth herein, the execution,
delivery and effectiveness of this Consent shall not operate as a
waiver of any right, power or remedy of any Lender or the Agent
under the Loan Agreement, the Technology Loan Agreement, the Metals
Loan Agreement or any of the other Loan Documents, nor constitute
a waiver of any Default, Event of Default or Subsidiary Event of
Default, or a consent to any noncompliance with any provision of
the Loan Agreement, the Technology Loan Agreement, the Metals Loan
Agreement or any of the other Loan Documents.
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9. Execution in Counterparts. This Consent may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered
(including delivery by telecopier) shall be deemed to be an
original and all of which taken together shall constitute one and
the same instrument.
10. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
11. Headings. Section headings in this Consent are included
herein for convenience of reference only and shall not constitute
a part of this Consent or be given any substantive effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be executed and delivered by their proper and duly
authorized officers as of the date set forth above.
BORROWER:
XXXXXX MANUFACTURING AND TECHNOLOGY, INC.
By: s/s Xxxx X. Xxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
TECHNOLOGY:
XXXXXX TECHNOLOGY, INC.
By: s/s Xxxx X. Xxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
METALS:
XXXXXX METALS TECHNOLOGY, INC.
By: s/s Xxxx X. Xxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
AGENT:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: s/s Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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LENDERS:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By: s/s Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
By: s/s Xxxxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: First Vice President
NATIONAL BANK OF CANADA
By: s/s Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: s/s Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
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