EXHIBIT 10.1
RESTRUCTURE AGREEMENT
THIS RESTRUCTURE AGREEMENT (this "Agreement") dated as of October 15,
2001, is entered into by and among XXXXXXXX MANUFACTURING COMPANY, INC., a Texas
corporation (the "Borrower"), the financial institutions listed on the signature
pages hereof (collectively, the "Lenders") and BANK OF AMERICA, N.A., as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Credit Agreement dated as of September 19, 1997 (as amended, the
"Credit Agreement"), and an Amended and Restated Limited Forbearance Agreement
dated as of June 29, 2001 (as amended, the "Existing Forbearance Agreement");
and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders agree to a comprehensive restructure of the Obligations, a
recapitalization of the Borrower, and related transactions, and that the
Administrative Agent and the Lenders further extend and modify their agreement
to forbear from exercising certain rights available to them as a result of the
existing defaults by the Borrower during a period of time sufficient to
accomplish all of the foregoing, and the Administrative Agent and the Lenders
have agreed to do so on the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the credit
agreement.
SECTION 2. LIMITED FORBEARANCE.
2.1 Forbearance and Temporary Amendments.
(a) The Borrower has requested that the Administrative Agent
and the Lenders forbear from exercising the rights and remedies
available to them with respect to the Borrower as a result of the
Subject Events (hereinafter defined) during the period from the date
hereof to and including the Termination Date (hereinafter defined). The
Administrative Agent and the Lenders hereby agree to forbear from
exercising the rights and remedies available to them with respect to
the Borrower as a result of the Subject Events, other than Blockage
Rights and Support Rights (each as hereinafter defined), from the date
hereof to and including the Termination Date, subject to the terms of
this Agreement. Upon the occurrence of the Termination Date, the
Administrative Agent's and the Lenders' agreement herein to forbear
from exercising the rights and remedies available to them with respect
to the Borrower as a result of the Subject Events (other than Blockage
Rights and Support Rights) shall immediately terminate, and the
Administrative Agent and the Lenders shall be entitled immediately to
exercise any and all rights and remedies available under the Credit
Agreement and any other Loan
Document, at law, in equity, or otherwise, without notice, demand,
presentment, notice of dishonor, notice of acceleration, notice of
intent to accelerate, protest, or other formalities of any kind, all of
which are hereby expressly waived by the Borrower. The Borrower hereby
acknowledges its noncompliance with the Credit Agreement as a result of
the Subject Events that have occurred prior to the date hereof,
acknowledges the existence of an Event of Default, and acknowledges
that this Agreement constitutes notice thereof and waives any and all
further notices with respect thereto. The agreement of the
Administrative Agent and the Lenders herein shall not constitute a
waiver of any Default including without limitation the Subject Events.
As used herein, the term "Subject Events" means the failure of the
Borrower to comply with the provisions of the Loan Documents described
on Schedule 1 hereto for the periods described on Schedule 1. The
parties hereto expressly acknowledge and agree that the agreements of
the Administrative Agent and the Lenders herein shall not in any manner
restrict or impair any rights or remedies available to them with
respect to any Persons other than the Borrower nor with respect to the
Senior Subordinated Notes (collectively, "Blockage Rights") or the
Support Agreement (collectively, "Support Rights") as a result of the
Defaults which result from the Subject Events.
(b) Effective as of the date hereof through and including the
earlier of (i) the Termination Date, or (ii) the date on which Westar
Capital II LLC and Westar Capital fulfill their obligations with
respect to the Borrower's fiscal quarters ending on or about December
31, 2000, March 31, 2001, and/or June 30, 2001, pursuant to that
certain Support Agreement (herein so called) dated as of June 30, 2000,
among Westar Capital II LLC, Westar Capital, the Borrower, and the
Administrative Agent, which obligations are comprised of the Payment
Obligation (as defined therein), the Administrative Agent and Lenders
hereby agree to amend the Credit Agreement on a temporary basis solely
with respect to calculations for the periods ending on or before the
Termination Date, as follows:
(i) the definition of Borrowing Base in the Credit
Agreement shall be the definition provided in subsection (a)
thereof notwithstanding the time periods referenced therein,
and
(ii) the definition of Maximum Borrowing Amount in
the Credit Agreement shall be the definition provided in
subsection (a) thereof notwithstanding the time periods
referenced therein.
Upon the earlier of the occurrence of the Termination Date or payment
of the Payment Obligation (as defined in the Support Agreement), the
temporary amendments provided in this Section 2.1(b) shall immediately
terminate without notice, the definitions of the Borrowing Base and the
Maximum Borrowing Amount shall return to those calculations as in
effect immediately prior to the effectiveness of this Agreement, and
any prepayments required pursuant to Section 2.5(b) of the Credit
Agreement for periods during which the temporary amendments in this
Section 2.1(b) were otherwise effective shall be immediately due and
payable as if this Agreement had never been in effect and without
notice, demand, presentment, notice of dishonor, notice of
2
acceleration, notice of intent to accelerate, protest, or other
formalities of any kind, all of which are hereby expressly waived by
the Borrower.
2.2 Other Agreements. To induce the Administrative Agent and Lenders to
enter into this Agreement, the Borrower hereby agrees as follows:
(a) Effective as of February 14, 2001, the Lenders shall have
no obligation to make Advances to the Borrower and the Issuing Bank
shall have no obligation to issue Letters of Credit for the account of
the Borrower.
(b) Effective as of February 14, 2001, accrued but unpaid
interest on the Advances outstanding from time to time and the fee
payable pursuant to Section 2.15(f)(i) of the Credit Agreement with
respect to outstanding Letters of Credit shall be due and payable on
the 15th day of each calendar month commencing on May 15, 2001, on the
last day of each calendar month, and on the Revolving Commitment
Maturity Date, the Facility A Term Loan Maturity Date or the Facility B
Term Loan Maturity Date, as appropriate.
(c) Effective as of February 14, 2001, Section 7.5(c) of the
Credit Agreement is amended to add the following phrase at the
beginning thereof: "with respect to asset sales which occurred on or
prior to February 14, 2001 only,".
(d) Effective as of February 14, 2001, the Borrower hereby
irrevocably waives any rights it may now or hereafter have under
Section 8.3 of the Credit Agreement, including without limitation, any
rights to cure any defaults.
(e) The Borrower hereby acknowledges its agreement to promptly
pay all reasonable out-of-pocket costs, fees and expenses incurred by
the Administrative Agent and each Lender including without limitation
reasonable fees and expenses of counsel for the Administrative Agent,
each Lender, and the Financial Advisor (hereinafter defined).
(f) Effective as of February 14, 2001, the Borrower hereby
acknowledges and agrees that, upon the expiration of any Interest
Period applicable to any Advance outstanding on the date of this
Agreement, it shall not be permitted to continue any such Advance as,
or convert any such Advance to, a LIBOR Advance.
(g) The Borrower hereby acknowledges and agrees that the
Support Agreement and the obligations and agreements therein constitute
Collateral pursuant to the General Security Agreement.
(h) All notices to be provided to the Administrative Agent
shall be provided as follows:
0
Xxxx X. Xxxxxxx
Xxxx xx Xxxxxxx, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
Attention: Xxx X. Xxxxxxx/Xxxxxxx X. Xxxxxxx
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(i) Effective as of April 13, 2001, the Borrower will deliver
to the Administrative Agent the following financial reports:
(1) the Borrower will deliver on or before
Thursday of each week a 13-week rolling cash
flow forecast (including forecasting of
receipts and disbursements).
(2) the Borrower will deliver on or before
Thursday of each week a variance report
delineating all material variances from the
prior week's forecast of receipts and
disbursements.
(3) the Borrower will deliver on or before
Thursday of each week a report with respect
to its aggregate Eligible Accounts as of the
end of the prior week.
(j) Effective as of June 30, 2001, the Borrower will deliver
the duly completed Compliance Certificate setting forth the calculation
of the Borrowing Base monthly on or before 30 days after the end of
each fiscal month and at the time financial statements are furnished
pursuant to Sections 6.1, 6.2 and 6.3 of the Credit Agreement.
(k) The Borrower agrees to pay to the Administrative Agent,
for the pro rata benefit of the Lenders, a facility fee in the amount
of $125,000, which fee was earned and due and payable on September 10,
2001, provided that payment thereof shall be made as a condition
precedent to the effectiveness of this Agreement.
(l) Effective as of June 29, 2001, the definition of Eligible
Accounts in the Credit Agreement shall be amended to read in the form
attached hereto as Schedule 2.
(m) The Borrower agrees that it shall take all reasonable
steps to obtain any and all required regulatory and/or third party
approvals for the transactions contemplated by the Term Sheet, shall
keep the Administrative Agent advised as to the status thereof, and
shall use its best efforts to close the transactions contemplated by
the Term Sheet. The Borrower further agrees that if it (i) fails to
consummate the exchange offer on
4
substantially the terms described in the Term Sheet and in the
Financial Restructuring Plan (the "Financial Restructuring Plan") in
substantially the form attached hereto as Exhibit B (the "Exchange
Offer") on or before December 28, 2001, and in such event also fails to
obtain the approval of a pre-packaged reorganization plan in
substantially the form attached hereto as Exhibit C (the "Plan of
Reorganization") by at least a majority in number of the Noteholders
(as defined in the Term Sheet) holding in the aggregate at least
66-2/3% in principal amount of the Senior Notes (as defined in the Term
Sheet), on or before December 28, 2001, or (ii) fails to obtain
confirmation and effectiveness of the Plan of Reorganization on or
before February 28, 2002, it shall constitute an Event of Default. The
Borrower further agrees to notify the Administrative Agent of the
occurrence of any event, condition or development which could
reasonably be expected to materially and adversely affect the closing
of the Exchange Offer, the approval of the Plan of Reorganization, the
restructure of the Obligations on the terms set forth in the Term
Sheet, or the confirmation and effectiveness of the Plan of
Reorganization.
(n) The agreements of the Administrative Agent and the Lenders
herein to forbear and to restructure the Obligations shall terminate
upon the first to occur of the following (the "Termination Date"): (x)
notice by the Administrative Agent to the Borrower of (i) the
occurrence of any Event of Default (other than as a result of the
Subject Events), (ii) any breach by the Borrower of any other provision
of this Agreement where such breach shall have remained uncured for a
period of five days after notice thereof by the Administrative Agent to
the Borrower, or (iii) the occurrence of any event or the giving of
notice by any party such that any term or condition of the Term Sheet
shall not be capable of being met in any material respect in accordance
with the terms of and the time table set forth herein and in the Term
Sheet, and (y) if the Financial Restructuring Plan shall terminate or
cease to be a binding obligation of any party thereto.
SECTION 3. RESTRUCTURE COMMITMENT.
(a) Subject to the terms and conditions of this Agreement, the
existence of no Event of Default (other than the Subject Events), and
the occurrence after the date hereof of no event which would reasonably
be expected to have a Material Adverse Effect, the parties hereto
commit to a restructure of the Obligations upon the terms and
conditions set forth in the Transaction Summary Term Sheet attached
hereto as Exhibit A (the "Term Sheet"), provided that the execution of
all documents contemplated thereby and satisfaction of all conditions
precedent thereto shall occur on or before 5:00 p.m., Dallas, Texas
time on the earlier of February 28, 2002, or the Termination Date.
(b) The obligation of the Lenders to restructure the
Obligations is additionally subject to the following: (i) the
preparation, execution and delivery of a credit agreement ("Restated
Credit Agreement") and other loan documents (collectively, together
with the Credit Agreement, the "Loan Documents") mutually acceptable to
the Borrower and the Lenders incorporating, without limitation,
substantially the terms and conditions outlined herein and in the Term
Sheet; and (ii) the Administrative Agent's determination that there has
been no material adverse change in the business, condition (financial
or otherwise),
5
operations, performance, properties, or prospects of the Borrower or
any of its Subsidiaries since September 28, 2001.
(c) The Borrower hereby agrees to reimburse the Administrative
Agent and each Lender for all reasonable out-of-pocket expenses
(including the reasonable fees and expenses of financial advisors and
attorneys for the Administrative Agent) incurred in connection with the
preparation, negotiation, execution, and enforcement of this Agreement,
the Loan Documents and any other documentation contemplated hereby or
thereby.
(d) THE BORROWER HEREBY FURTHER AGREES TO INDEMNIFY AND HOLD
HARMLESS THE ADMINISTRATIVE AGENT, THE LENDERS AND THEIR RESPECTIVE
OFFICERS, EMPLOYEES, AGENTS, TRUSTEES AND DIRECTORS (EACH AN
"INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES,
COSTS, EXPENSES (INCLUDING THE REASONABLE FEES AND EXPENSES OF
ATTORNEYS FOR THE INDEMNIFIED PARTIES) OR LIABILITIES OF EVERY KIND
WHATSOEVER (COLLECTIVELY, THE "INDEMNIFIED OBLIGATIONS") TO WHICH EACH
OF THE INDEMNIFIED PARTIES MAY BECOME SUBJECT IN CONNECTION IN ANY WAY
WITH THE TRANSACTION WHICH IS THE SUBJECT OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, REASONABLE EXPENSES INCURRED IN CONNECTION WITH
INVESTIGATING OR DEFENDING AGAINST ANY LIABILITY OR ACTION (WHETHER OR
NOT SUCH INDEMNIFIED PARTY IS A PARTY THERETO), EXCEPT THAT THE
BORROWER SHALL NOT BE LIABLE FOR ANY INDEMNIFIED OBLIGATIONS OF ANY
INDEMNIFIED PARTY TO THE EXTENT ANY OF THE FOREGOING IS FOUND IN A
FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE ARISEN FROM
SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE UNDER
THIS AGREEMENT OR ANY LOAN DOCUMENT OR IN RESPECT OF ANY ACT, OMISSION
OR EVENT RELATING TO THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY, ON
ANY THEORY OF LIABILITY, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES.
(e) The Borrower's obligations under the immediately preceding
two paragraphs shall continue and are and shall remain absolute
obligations of the Borrower whether or not new loan documents are
executed or any loan is made by the Lenders or any conditions of
lending are met, unless and until superseded by the indemnity
provisions of definitive new loan documents. The obligations of the
Lenders and the Administrative Agent under this Agreement shall be
enforceable solely by the Borrower and may not be relied upon by any
other Person.
(f) This Agreement and the Term Sheet are for the Borrower's
confidential use only and may not be disclosed by it to any person
other than its employees, attorneys and financial advisors (but not
commercial lenders) and to the Noteholders and their legal counsel and
advisors who agree to maintain the confidential nature thereof, and
then only
6
in connection with the proposed transaction and on a confidential
basis, except where (in the Borrower's judgment) disclosure is required
by law or where the Administrative Agent or the Lenders consent to the
proposed disclosure, which consent shall not be unreasonably withheld.
Officers, directors, employees and agents of the Lenders and the
Administrative Agent and their affiliates shall at all times have the
right to share amongst themselves information received from the
Borrower and its affiliates and their respective officers, directors,
employees and agents. The Administrative Agent reserves the right to
assign some or all of its rights and delegate some or all of its
responsibilities hereunder to one of its affiliates, provided that any
such delegation shall not relieve the Administrative Agent of any of
its obligations under the Loan Documents.
(g) The Lenders hereby agree that the leases, lease amendments
and lease terminations executed on or about November 9, 2001, in
substantially the forms delivered to Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
and Xxxxxx Xxxxxxxx LLP on or about November 1, 2001, satisfy the
requirements of the Term Sheet that the terms of the leases of the
Borrower be reasonably satisfactory to the Lenders.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lenders and the Administrative Agent that:
4.1 Authorization; No Conflict. The execution and delivery by the
Borrower of this Agreement and the performance by the Borrower of its
obligations under the Credit Agreement have been duly authorized by all
necessary corporate action, do not require any filing (other than filings to
perfect Liens on the Collateral) or registration with or approval or consent of
any governmental agency or authority, do not and will not conflict with, result
in any violation of, or constitute any default under any provision of the
certificate of incorporation or bylaws of the Borrower or any material agreement
or other material document binding upon or applicable to the Borrower (or any of
its properties) or any law or governmental regulation or court decree or order
applicable to the Borrower, and will not result in or require the creation or
imposition of any Lien on any of the properties of the Borrower pursuant to the
provisions of any agreement (other than the Loan Documents) binding upon or
applicable to the Borrower.
4.2 Due Execution; Enforceability. This Agreement has been duly
executed and delivered by the Borrower and, together with the Credit Agreement,
is a legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms subject, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally and to general principles of
equity (regardless of whether enforcement is sought in equity or at law).
4.3 Reaffirmation of Representations and Warranties. The
representations and warranties contained in the Credit Agreement and the other
Loan Documents (except for those contained in Sections 4.1(k) and 4.1(u) of the
Credit Agreement, Section 2.1(c) of the Deeds of Trust, and, solely as a result
of the Subject Events, Section 4.1(o) of the Credit Agreement) are true and
correct in all material respects on the date of this Agreement after giving
effect to the effectiveness hereof (other than any such representations and
warranties that by their terms refer to a specific date, in which case as of
such specific date).
7
SECTION 5. CONDITIONS PRECEDENT. This Agreement shall become effective
as of October 15, 2001, upon satisfaction of all of the following conditions
(such date is herein called the "Agreement Effective Date"):
5.1 Receipt of Agreement and Commitment from Specified Investors. The
Administrative Agent shall have received counterparts of this Agreement duly
executed by the Borrower, Lenders, the Administrative Agent, and the other
Persons identified on the signature pages hereof, and the Financial
Restructuring Plan shall have been executed by the parties thereto and shall be
effective.
5.2 Default. No Event of Default shall have occurred and be continuing
other than any Event of Default which results solely from the Subject Events.
5.3 Payment of Interest and Fees. The Administrative Agent shall have
received confirmation that the Borrower has paid all reasonable expenses and
fees arising in connection with all matters undertaken or performed at the
request of the Administrative Agent or the Lenders, including but not limited
to, all expenses and fees owed to Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. and Xxxxxx
Xxxxxxxx LLP ("Financial Advisor"), and accrued interest on the Obligations
through October 31, 2001, including without limitation interest which accrued at
the Default Rate from July 16, 2001 through August 30, 2001, to the extent not
already paid.
5.4 Cooperation. The Borrower shall have cooperated with Financial
Advisor and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. in all of their due diligence
inquiries.
5.5 Fee. The Administrative Agent shall have received, for the pro rata
benefit of the Lenders, the facility fee in the amount of $125,000 (as required
by Section 2.2(l) of the Existing Forbearance Agreement and Section 2.2(j)
hereof).
5.6 Additional Information. The Administrative Agent shall have
received such additional documents, instruments and information as the
Administrative Agent or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., may
reasonably request.
5.7 Notices. The Borrower shall have provided to the Administrative
Agent true and correct copies of all notices provided to Westar Capital II LLC,
Westar Capital, and any other Specified Investors with respect to defaults under
Section 7.11, 7.12, 7.13 or 7.21 of the Credit Agreement and any responsive or
related correspondence received from any Specified Investors.
SECTION 6. MISCELLANEOUS.
6.1 Expenses. The Borrower agrees to pay on demand all reasonable costs
and expenses of the Administrative Agent (including the reasonable fees, charges
and expenses of counsel for the Administrative Agent and the Financial Advisor)
in connection with the preparation, negotiation, execution, delivery and
administration of this Agreement and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
In addition, the Borrower agrees to pay, and save the Administrative Agent and
the Lenders harmless from all liability for, any stamp or other taxes which may
be payable in connection with the execution or delivery of this Agreement, the
borrowings under the Credit Agreement, and the execution and delivery of any
instruments or documents provided for herein
8
or delivered or to be delivered hereunder or in connection herewith. All
obligations provided in this Section 6.1 shall survive any termination of this
Agreement and the Credit Agreement.
6.2 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
6.3 Governing Law. THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable laws,
but if any provision of this Agreement shall be prohibited by or invalid under
such laws, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
6.4 Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered (including by facsimile),
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement. Telecopies of signatures shall be
binding and effective as originals.
6.5 Reference to Loan Documents. Except as expressly modified by this
Agreement, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified in all respects. The Borrower
hereby additionally ratifies and confirms its obligations pursuant to the
Temporary Credit Facility and all documents and instruments executed pursuant
thereto or in connection therewith and further agrees that its obligations
thereunder are not subject to any claim, offset, defense or counterclaim.
6.6 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns, and shall inure to
the sole benefit of the parties hereto and the successors and assigns of the
Administrative Agent and the Lenders. Notwithstanding the foregoing, the
Borrower shall not assign its rights or duties hereunder without the consent of
the Administrative Agent and the Lenders.
6.7 RELEASE.
(a) The Borrower hereby unconditionally and irrevocably
remises, acquits, and fully and forever releases and discharges the
Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their
respective officers, servants, employees, agents, attorneys,
principals, directors and shareholders, and their respective heirs,
legal representatives, successors and assigns (collectively, the
"Released Lender Parties") from any and all claims, demands, causes of
action, remedies, suits, damages and liabilities (collectively, the
"Borrower Claims") of any nature whatsoever, whether now known,
suspected or claimed, whether arising under common law, in equity or
under statute, which the Borrower ever had or now has against the
Released Lender Parties which may have arisen at any time on or prior
to the date of this Agreement and which were in any manner related to
any of the Loan Documents or
9
the enforcement or attempted enforcement by the Administrative Agent or
the Lenders of rights, remedies or recourses related thereto.
(b) The Borrower covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Lender Parties any action or
other proceeding based upon any of the Borrower Claims which may have
arisen at any time on or prior to the date of this Agreement and were
in any manner related to any of the Loan Documents.
(c) The agreements of the Borrower set forth in this Section
6.7 shall survive termination of this Agreement.
6.8 Acknowledgment of the Borrower. The Borrower acknowledges and
agrees that the Lenders and the Administrative Agent executing this Agreement
have done so in their sole discretion and without any obligation. The Borrower
further acknowledges and agrees that any action taken or not taken by the
Lenders or the Administrative Agent prior to, on or after the date hereof shall
not constitute a waiver or modification of any terms, covenant or provision of
any Loan Document other than as specified herein or prejudice any rights or
remedies other than as specified herein which the Administrative Agent or any
Lender now has or may have in the future under any Loan Document, applicable law
or otherwise, all of which rights and remedies are expressly reserved by the
Administrative Agent and the Lenders. The Borrower hereby ratifies and confirms
its obligations under the Loan Documents.
6.9 Loan Document. This Agreement is a Loan Document and is subject to
all provisions of the Credit Agreement applicable to Loan Documents (unless
inconsistent with the terms hereof), all of which are incorporated in this
Agreement by reference the same as if set forth in this Agreement verbatim.
6.10 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES. This Agreement amends and restates in its entirety the Existing
Forbearance Agreement.
[Balance of this Page Intentionally Left Blank]
10
Executed and delivered as of the day and year first above written.
BORROWER:
XXXXXXXX MANUFACTURING COMPANY, INC.
By /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President and Chief
Financial Officer
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
ADMINISTRATIVE AGENT AND LENDER:
BANK OF AMERICA, N.A., as
Administrative Agent and as a Lender
By /s/ Xxxx X. Xxxxxxx III
---------------------------------------
Xxxx X. Xxxxxxx III
Managing Director
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., as a Lender
By /s/ Xxxxxx X. Boekuel
---------------------------------------
Name: Xxxxxx X. Boekuel
Title: Executive Vice President
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
COMERICA BANK-TEXAS, as a Lender
By /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
HSBC BANK USA, as a Lender
By D.C. English
---------------------------------------
Name: D.C. English
Title: Associate Director
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
COMERICA BANK-CALIFORNIA, as a Lender
By /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
ARCHIMEDES FUNDING, LLC., as a Lender
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
ML CLO XII PILGRIM AMERICA (CAYMAN) Ltd.,
as a Lender
By: ING Pilgrim Investments,
as its investment manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST, as a Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
KZH SOLEIL LLC, as a Lender
By: /s/ Xxxxxxx Tarrorino
--------------------------------------
Name: Xxxxxxx Tarrorino
Title: Authorized Agent
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
ARK CLO 2000-1, LIMITED, as a Lender
By: Patriarch Partners, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
Nomura Special Situations Investment Trust agrees on behalf of
Tri-Links Investment Trust to the terms of the Restructure Agreement dated as of
October 15, 2001 (as amended, the "Agreement") solely in its capacity as a
Lender, it being understood that the terms of the Agreement shall not apply to
Tri-Links Investment Trust in its capacity as a holder of bonds issued by
Xxxxxxxx Manufacturing Company, Inc. or to any other claims against Xxxxxxxx
Manufacturing Company, Inc. held by Tri-Links Investment Trust.
*NOMURA SPECIAL SITUATIONS
INVESTMENT TRUST, for
TRI-LINKS INVESTMENT TRUST, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Vice President
* Wilmington Trust Company, not in its individual capacity but solely as Trustee
SIGNATURE PAGE to Restructure Agreement dated as of October 15, 2001,
among Xxxxxxxx Manufacturing Company, Inc., Bank of America, N.A., as
Administrative Agent, and the Lenders party thereto.
ACKNOWLEDGED AND AGREED to by the following Persons, each of whom
hereby acknowledges and agrees that its obligations under the Support Agreement
are not released, diminished, impaired, reduced, or otherwise adversely affected
by the Agreement as amended hereby, and consents and agrees to this Amendment's
execution and delivery.
WESTAR CAPITAL II LLC, as a Lender
By: Westar Capital Associates II, LLC
Its: Member
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Its: Member
WESTAR CAPITAL, as a Lender
By: Westar Capital Associates
Its: General Partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Its: General Partner
Reference is made to that certain Restructure Agreement (the
"Agreement") dated as of October 15, 2001, among Xxxxxxxx Manufacturing Company,
Inc., Bank of America, N.A., as Administrative Agent, and the Lenders party
thereto. Reference is also hereby made to that certain Credit Agreement dated as
of August 12, 1999, among the Borrower, Bank of America, N.A. as Administrative
Agent, and the lenders party thereto. Bank of America, N.A., as Administrative
Agent and as the sole Lender thereunder hereby agrees to forbear from exercising
the rights and remedies available to them with respect to the Borrower only (and
not with respect to any other Obligor as defined therein or with respect to the
Senior Subordinated Notes or the holders thereof) under such Credit Agreement
and the other Loan Documents as defined therein as a result of Events of Default
which exist thereunder solely as a result of the Subject Events for the period
and to the extent specified in this Agreement.
Executed as of October 15, 2001.
BANK OF AMERICA, N.A., as
Administrative Agent and as Lender
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx, Managing Director
