Exhibit 99.3
SEVENTH AMENDMENT TO CREDIT AGREEMENT
AND AMENDMENT TO FORBEARANCE AGREEMENT
This Seventh Amendment to Credit Agreement and Amendment to
Forbearance Agreement, dated as of August 29, 2002 (this "Amendment"), is
among XXXX INDUSTRIES, INC., a Delaware corporation (the "Parent"), each of
the Parent's domestic Subsidiaries, as borrowers (together with the Parent,
collectively the "Borrowers"), the Parent and each of the Parent's domestic
Subsidiaries, as guarantors (the "Guarantors" and each a "Guarantor", and
together with the Borrowers, collectively the "Credit Parties" and each a
"Credit Party"), LASALLE BANK NATIONAL ASSOCIATION, as lender ("LaSalle"),
NATIONAL CITY BANK, as lender ("NCB"), U.S. Bank (successor by merger to
Firstar Bank), as lender ("US Bank"), Comerica Bank, as lender
("Comerica"), Associated Bank, N.A., as lender ("Associated Bank", and
together with LaSalle, NCB, US Bank and Comerica, collectively the
"Lenders"), LaSalle, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), and NCB, as syndication agent for
the Lenders (in such capacity, the "Syndication Agent", and together with
the Administrative Agent, the "Agents"). Capitalized terms used in this
Amendment and not otherwise defined have the meanings assigned to such
terms in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS:
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1. The Credit Parties and the Lenders are parties to the Credit
Agreement dated as of March 8, 2001 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), under which the Lenders provided the Borrowers with, among
other things, a $53,000,000 credit facility.
2. The Credit Parties and the Lenders are parties to the Forbearance
Agreement dated as of April 25, 2002 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the
"Forbearance Agreement"), pursuant to which the Lenders agreed to forbear
until August 31, 2002 from exercising their rights under the Credit
Agreement related to the Credit Parties' failure to comply with Section
10.6(E) of the Credit Agreement.
3. The Lenders have extended credit to the Borrowers under the Credit
Agreement as evidenced by, among other things, the Notes evidencing the
Revolving Loan dated as of June 30, 2002 and made by the Borrowers in favor
of the Lenders in the aggregate principal amount of $23,000,000 (the
"Existing Revolving Loan Notes") and the Notes evidencing the Term Loan
dated as of January 8, 2002 and made by the Borrowers in favor of the
Lenders in the aggregate principal amount of $30,000,000.
4. The Credit Parties and the Lenders desire to amend the Credit
Agreement to, among other things, amend the interest payment dates on the
Loans, require certain additional financial information to be delivered to
the Administrative Agent and the Lenders, and expand the role of Xxxxxxxxx
Consulting with the Credit Parties, all on the terms, and subject to the
conditions, of this Amendment.
5. Cumulatively, for the four consecutive months ending April 30,
2002, the Credit Parties failed to comply with Section 10.6(E) of the
Credit Agreement. On such date, this violation constituted an Event of
Default under the Credit Agreement, and such Event of Default has been
existing since April 30, 2002.
6. The Credit Parties have requested that the Lenders extend the
forbearance period under the Forbearance Agreement until October 31, 2002,
during which period the Lenders will forbear from exercising their rights
under the Credit Agreement and the other Loan Documents with respect to
such Event of Default, and the Lenders have agreed to such request subject
to the terms and conditions of this Amendment.
AGREEMENT:
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In consideration of the mutual agreements contained in this Amendment,
and other good and valuable consideration the receipt and sufficiency of
which are acknowledged, the parties to this Amendment agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
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1.1 On the date this Amendment becomes effective, after satisfaction
by the Credit Parties of each of the conditions set forth in Section 8 (the
"Effective Date"), Section 1.1 of the Credit Agreement is amended by
deleting the definition of "Borrowing Base" in its entirety and replacing
it as follows:
Borrowing Base means, at any time, an amount equal to the sum of
(i) 85% of the face amount (less discounts, credits, allowances and
payments that may be taken by or granted to Account Debtors of the
Eligible Accounts Receivable in connection with such Accounts) of all
existing Eligible Accounts Receivable that are set forth in the
Borrowing Base Certificate most recently delivered by the Parent on
behalf of the Borrowers to the Administrative Agent, which amount will
be reduced by 100% of the face amount of all payments that any
Borrower has received on or in connection with the Eligible Accounts
Receivable since the date of such Borrowing Base Certificate; plus
(ii) 50% of the Value of Eligible Inventory, as set forth in the
Borrowing Base Certificate then most recently delivered by the Parent
on behalf of the Borrowers to the Administrative Agent; provided that,
in determining the Borrowing Base effective as of June 30, 2002, the
maximum amount contributed pursuant to this clause (ii) shall not
exceed 65% of the aggregate amount of clause (i) above plus this
clause (ii); plus (iii) if the Credit Parties have delivered to Agents
a business plan of the Credit Parties, in form and substance
reasonably satisfactory to the Agents, for the period commencing on
September 15, 2002 and continuing thereafter, $1,500,000; provided
that, notwithstanding anything in this Agreement to the contrary, any
of the Agents may elect (if no Event of Default exists, based on the
results of a field audit or, if an Event of Default exists, at any
time), in its commercially reasonable discretion, to change the
foregoing method of calculating the Borrowing Base by reducing
advances against Eligible Accounts Receivable or Eligible Inventory or
by reducing the amount provided for under clause (iii) above.
1.2 On the Effective Date, Section 4.2 of the Credit Agreement is
amended by deleting such Section in its entirety and replacing it as
follows:
4.2 Interest Payment Dates. Accrued interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each
calendar month and at maturity (by acceleration, conversion into a
Eurodollar Loan, or otherwise). Accrued interest on each Eurodollar
Loan shall be payable on each one-month anniversary of the first day
of such Interest Period and at maturity (by acceleration, conversion
into a Base Rate Loan, or otherwise). After maturity, accrued interest
on all Loans shall be payable on demand.
1.3 On the Effective Date, Section 7.1 of the Credit Agreement is
amended by deleting such Section in its entirety and replacing it as
follows:
7.1 Making of Payments. All payments of principal of or interest
on the Notes, and of all Commitment Fees and Letter of Credit fees,
shall be made by the Borrowers to the Administrative Agent in
immediately available funds at the office specified by the
Administrative Agent not later than noon (Chicago, Illinois time) on
the date due and funds received after that time shall be deemed to
have been received by the Administrative Agent on the next following
Business Day. The Administrative Agent shall promptly but in no event
less frequently than weekly remit to each Lender or other holder of a
Note its share of all such payments received in collected funds by the
Administrative Agent for the account of such Lender or holder. All
payments under Section 8.1 shall be made by the Borrowers directly to
the Lender entitled thereto.
1.4 On the Effective Date, Section 10.1 of the Credit Agreement is
amended by adding new subsection (M) to such Section as follows:
(M) Cash Flow Projections. (i) By September 13, 2002 and on or
before the first day of each calendar month thereafter,
commencing with October 2002, a 13-week cash flow projection
for the Parent and its Subsidiaries, in form and substance
reasonably satisfactory to the Administrative Agent and (ii)
by September 13, 2002, financial projections for the Parent
and its Subsidiaries for the remainder of Fiscal Year 2002
and Fiscal Year 2003 (including balance sheets, an operating
budget and a cash flow budget), prepared with the assistance
of Xxxxxxxxx Consulting and accompanied by a certificate of
a Responsible Officer of the Parent on behalf of the
Borrowers to the effect that (i) such projections were
prepared by the Borrowers in good faith, (ii) the Parent has
a reasonable basis for the assumptions contained in such
projections and (iii) such projections have been prepared in
accordance with such assumptions. Notwithstanding the
foregoing, the Credit Parties will furnish to the
Administrative Agent and each Lender, upon the reasonable
request of the Administrative Agent, updated or revised
financial statements required under clause (ii) above upon
any material change in condition (financial or otherwise) of
the Credit Parties taken as a whole.
1.5 On the Effective Date, Section 10.20 of the Credit Agreement is
amended by deleting the proviso clause at the end of such Section in its
entirety and replacing it as follows:
provided that, no Investment otherwise permitted by clause
(C) shall be permitted to be made in any amount to the
extent that such Investment is not in the ordinary course of
business if, immediately before or after giving effect
thereto, any Default or Event of Default has occurred and is
continuing; provided, further, that, no Investment otherwise
permitted by clause (D) shall be permitted to be made in an
amount that exceeds the beginning balance of the current
Fiscal Year if, immediately before or after giving effect
thereto, any Default or Event of Default has occurred and is
continuing.
SECTION 2. AMENDMENT TO EXISTING REVOLVING LOAN NOTES.
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On the Effective Date, the Existing Revolving Loan Notes are amended
by deleting the second paragraph of each Existing Revolving Loan Note and
replacing it as follows:
The Borrowers further promise to pay interest on the outstanding
principal amount of the indebtedness represented by this Note from the
date of this Note until payment in full of such indebtedness at the
applicable rates set forth in Section 4.1 of the Credit Agreement.
Except as otherwise provided in the Credit Agreement, interest is
payable monthly in arrears not later than the last Business Day of
each calendar month and computed on the basis of a 360-day year for
the actual number of days elapsed.
SECTION 3. AMENDMENT TO SIXTH AMENDMENT TO CREDIT
AGREEMENT AND AMENDMENT TO FORBEARANCE AGREEMENT.
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On the Effective Date, the Sixth Amendment to Credit Agreement and
Amendment to Forbearance Agreement, dated as of June 30, 2002, among the
Credit Parties, the Lenders and the Agents (the "Sixth Amendment"), is
amended by deleting Section 8.1(D) from the Sixth Amendment in its entirety
and replacing it as follows:
(D) [Intentionally omitted].
SECTION 4. ACKNOWLEDGMENT OF THE BORROWER.
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4.1 Outstanding Balance. As of the date of this Amendment, the Credit
Parties acknowledge and agree that the Borrowers owe the Lenders an
aggregate principal amount of $40,200,881.10 of under the Credit Agreement
and the other Loan Documents, plus accrued and unpaid interest, fees and
other expenses (if any). The Borrowers have made all payments under the
Credit Agreement and the other Loan Documents required to be made as of the
date hereof.
4.2 Default. The Credit Parties acknowledge that an Event of Default
has occurred and is continuing under Section 12.1(D) of the Credit
Agreement due to the Credit Parties' violation of the financial covenant
set forth in Section 10.6(E) of the Credit Agreement for the four
consecutive months ending April 30, 2002 (the "Existing Default").
SECTION 5. FORBEARANCE.
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5.1 Forbearance. During the Forbearance Period (as defined below), the
Lenders will not exercise any of their rights or remedies under the Credit
Agreement, the Loan Documents or applicable law with respect to the
Existing Default and the financial covenants set forth in Sections 10.6(A),
(B), (C), (D), (E) and (F) of the Credit Agreement. For purposes of this
Amendment, "Forbearance Period" means the period commencing on the
Effective Date and ending on the earlier of (x) October 31, 2002 and (y)
the date the Forbearance Period is terminated upon the occurrence of any of
the events described in Section 5.6 (the "Termination Date").
5.2 Eurodollar Loan Limitations. Notwithstanding the terms of the
Credit Agreement, the Borrowers acknowledge and agree that, during the
Forbearance Period, the Borrowers may only request a Eurodollar Loan
borrowing pursuant to Section 2.2(B) of the Credit Agreement, or request a
conversion into or a continuation of a Eurodollar Loan pursuant to Section
2.2(D) of the Credit Agreement, with an Interest Period of one month;
provided that, during the Forbearance Period, the Borrowers may not select
any Interest Period for a Eurodollar Loan that would extend beyond the
Forbearance Period
5.3 Interest Rates. Notwithstanding the terms of the Credit Agreement,
the Borrowers acknowledge and agree that, during the Forbearance Period,
the Borrowers shall pay interest on the unpaid principal amount of each
Loan (a) at all times while such Loan is a Base Rate Loan at a rate per
annum equal to the sum of the Base Rate from time to time in effect plus
1.75% and (b) at all times while such Loan is a Eurodollar Loan at a rate
per annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) plus
4.00%.
5.4 Daily Borrowing Base Certificates. Notwithstanding the terms of
the Credit Agreement, the Credit Parties acknowledge and agree that, during
the Forbearance Period and continuing thereafter until further notice by
the Administrative Agent, the Credit Parties will furnish to the
Administrative Agent and each Lender, by 1:00 P.M. (Chicago, Illinois time)
of each Business Day, a Borrowing Base Certificate, in form reasonably
satisfactory to the Agents, dated as of the end of the immediately
preceding Business Day and executed by a Responsible Officer of the Parent
on behalf of the Credit Parties. Any failure of the Credit Parties to
provide any Borrowing Base Certificate as provided in this Section 5.4
shall constitute an Event of Default under the Credit Agreement.
5.5 Monthly Telephonic Updates. Notwithstanding the terms of the
Credit Agreement, the Credit Parties acknowledge and agree that, during the
Forbearance Period and continuing thereafter until further notice by the
Administrative Agent, the Credit Parties shall conduct telephonic updates
with the Administrative Agent and the Lenders, once a month, at such times
as the Administrative Agent or any Lender shall reasonably request, to
discuss financial or other matters of the Credit Parties. Any failure of
the Credit Parties to conduct monthly telephonic updates as provided in
this Section 5.5 shall constitute an Event of Default under the Credit
Agreement.
5.6 Termination of Forbearance. Upon the occurrence of any Termination
Event (as defined below) and at any time after such occurrence during which
a Termination Event is continuing, the Agents are entitled to, without
prior notice to the Credit Parties, immediately terminate the Forbearance
Period, unless such Termination Event is an Event of Default described in
Section 12.1(C) of the Credit Agreement, in which case the Forbearance
Period automatically terminates without demand or notice of any kind. For
purposes of this Amendment, "Termination Event" means:
(A) the failure of the Credit Parties to provide a full
liquidation analysis of the Credit Parties and its Subsidiaries to the
Administrative Agent and each of the Lenders, in form and substance
reasonably satisfactory to the Administrative Agent, on or before
August 31, 2002;
(B) the failure of the Credit Parties to provide a Business Plan
to the Administrative Agent and each of the Lenders, in form and
substance reasonably satisfactory to the Administrative Agent, on or
before September 13, 2002. For purposes of this Section 5.6(B),
"Business Plan" means a business plan prepared by the Credit Parties
and Xxxxxxxxx Consulting that shall include the following:
(i) the underlying strategies to maximize the profitability
and cash flow of the business of the Parent and its Subsidiaries
using all available working capital; and
(ii) financial projections for the Parent and its
Subsidiaries for the remainder of Fiscal Year 2002 and Fiscal
Year 2003 (including balance sheets, an operating budget and a
cash flow budget) based on the underlying strategies in clause
(i) above, accompanied by a certificate of a Responsible Officer
of the Parent on behalf of the Borrowers to the effect that (a)
such projections were prepared by the Borrowers in good faith,
(b) the Parent has a reasonable basis for the assumptions
contained in such projections and (c) such projections have been
prepared in accordance with such assumptions;
(C) the occurrence of an Event of Default under the Credit
Agreement (other than the Existing Default or the occurrence of a
financial covenant default that may arise under Section 10.6(A), (B),
(C), (D) or (F) of the Credit Agreement); or
(D) any representation or warranty made by the Credit Parties
under this Amendment or any agreement, instrument or other document
executed or delivered by the Credit Parties in connection with this
Amendment is untrue or incorrect in any respect when made or any
schedule, certificate, statement, report, financial data, notice or
writing furnished at any time by the Credit Parties to the Agents or
any Lender is untrue or incorrect in any respect on the date as of
which the facts set forth therein are stated or certified.
5.7 Effect at End of Forbearance Period. On the Termination Date, the
Existing Default will be deemed to exist and, without regard to any matters
transpiring during the Forbearance Period or the financial condition or
prospects of the Credit Parties as of such date, the Agent and each Lender
shall be fully entitled to exercise any rights and remedies they may have
under the Credit Agreement, the other Loan Documents or applicable law.
5.8 ACKNOWLEDGMENT. THE CREDIT PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE
THAT THE FORBEARANCE PROVISION SET FORTH IN SECTION 5.1 IS EFFECTIVE ONLY
DURING THE FORBEARANCE PERIOD AND THAT, AFTER THE TERMINATION DATE, THE
CREDIT AGREEMENT WILL BE IN MATERIAL DEFAULT AND THE LENDERS WILL BE FULLY
ENTITLED IMMEDIATELY TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS OR APPLICABLE LAW WITHOUT REGARD TO ANY
MATTERS TRANSPIRING DURING THE FORBEARANCE PERIOD OR THE FINANCIAL
CONDITION OR PROSPECTS OF THE CREDIT PARTIES. THE CREDIT PARTIES UNDERSTAND
THAT THE LENDERS ARE EXPRESSLY RELYING ON THE TERMS OF THIS SECTION 5.8 AND
WOULD NOT HAVE ENTERED INTO THIS AMENDMENT BUT FOR THE CREDIT PARTIES'
ACKNOWLEDGMENT AND AGREEMENT IN THIS SECTION 5.8.
5.9 No Waiver. Nothing in this Amendment shall in any way be deemed to
be (a) a waiver of any Event of Default including the Existing Default or
(b) an agreement to forbear from exercising any remedies with respect to
any Event of Default except as specifically set forth in Section 5.1.
SECTION 6. FURTHER ASSURANCES OF THE BORROWERS.
-----------------------------------
The Credit Parties agree that at any time and from time to time, at
the cost and expense of the Credit Parties, the Credit Parties will (a)
execute and deliver all further instruments and documents, and take all
further action, that may be reasonably necessary to complete the
transactions contemplated by this Amendment and (b) cooperate fully with
the Agents' or any Lender's personnel and representatives with respect to
any reasonable request for information by such personnel and
representatives.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
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To induce the Lenders to enter into this Amendment, the Credit Parties
represent and warrant to the Lenders that:
7.1 Due Authorization; No Conflict; No Lien; Enforceable Obligation.
The execution, delivery and performance by each Credit Party of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental,
regulatory or other approvals (if any is required), do not and will not
contravene or conflict with any provision of (a) any law, (b) any judgment,
decree or order or (c) its articles or certificate of incorporation, bylaws
or trust documents and do not and will not contravene or conflict with, or
cause any lien to arise under, any provision of any agreement or instrument
binding upon any Credit Party or upon any of its property. This Amendment,
the Credit Agreement, as heretofore amended and as amended by this
Amendment, and the Notes, as amended by this Amendment, are the legal,
valid and binding obligations of each Credit Party, enforceable against it
in accordance with its respective terms.
7.2 Representations and Warranties; Default. As of the Effective Date,
except for those representations or warranties specifically made as of
another date or relating to the Existing Default or specifically relating
to Section 9.5 of the Credit Agreement, the representations and warranties
of the Credit Parties contained in the Credit Agreement are true and
correct. As of the Effective Date, except for the Existing Default and
except for any Default or Event of Default that may have occurred under
Section 12.1(J) of the Credit Agreement, no Default or Event of Default has
occurred and is continuing.
SECTION 8. CONDITIONS PRECEDENT.
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Notwithstanding any other provision contained in this Amendment, the
effectiveness of this Amendment and the obligation of the Lenders to
institute the forbearance contemplated by this Amendment and the
commencement of the Forbearance Period are subject to the following:
8.1 Documents and Fees. The Administrative Agent has received all of
the following, each duly executed and dated, or received, by such date as
is satisfactory to the Agents and, if applicable, in form and substance
satisfactory to the Agents:
(A) Seventh Amendment to Credit Agreement and Amendment to
Forbearance Agreement. This Amendment;
(B) Consents. Certified copies of all documents evidencing any
necessary corporate consents and governmental approvals, if
any, with respect to this Amendment;
(C) Costs and Expenses. All reasonable out-of-pocket costs and
expenses to the Agents, including the reasonable fees and
out-of-pocket charges of counsel for the Agents;
(D) Amendment and Forbearance Fee. The Borrowers shall pay a fee
to the Administrative Agent for the account of each Lender
party to this Amendment in the amount equal to the product
of each such Lender's Percentage times $106,250.
Additionally, the Borrowers hereby agree and acknowledge
that the Borrowers shall pay a fee to the Administrative
Agent for the account of each Lender party to this Amendment
in the amount equal to the product of each such Lender's
Percentage times $106,250 on or before the earliest of (i)
October 31, 2002, (ii) the occurrence of an Event of Default
under the Credit Agreement (other than the Existing Default
or the occurrence of a financial covenant default that may
arise under Section 10.6(A), (B), (C), (D) or (F) of the
Credit Agreement) and (iii) the occurrence of any
Termination Event; and
(F) Other. Such other documents as the Administrative Agent may
reasonably request.
8.2 Representations and Warranties. The representations and warranties
of the Credit Parties set forth in this Amendment are true and correct.
SECTION 9. MISCELLANEOUS.
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9.1 Captions. The recitals to this Amendment (except for definitions)
and the section captions used in this Amendment are for convenience only
and do not affect the construction of this Amendment.
9.2 Governing Law; Severability. THIS AMENDMENT IS A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. Wherever
possible, each provision of this Amendment will be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Amendment is prohibited by or invalid under such law,
such provision will be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
9.3 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each
such counterpart will be deemed to be an original, but all such
counterparts together constitute but one and the same Amendment.
9.4 Successors and Assigns. This Amendment is binding upon the Credit
Parties, the Lenders and their respective successors and assigns, and
inures to the sole benefit of the Credit Parties, the Lenders and their
successors and assigns. The Credit Parties have no right to assign their
rights or delegate their duties under this Amendment.
9.5 Continued Effectiveness. Notwithstanding anything contained in
this Amendment, the terms of this Amendment are not intended to and do not
serve to effect a novation as to the Credit Agreement or any other Loan
Document. The parties to this Amendment expressly do not intend to
extinguish the Credit Agreement or any other Loan Document. Instead, the
parties to this Amendment expressly intend to reaffirm the indebtedness
created under the Credit Agreement and the other Loan Documents. The Credit
Agreement and the other Loan Documents remain in full force and effect and
the terms and provisions of the Credit Agreement and the other Loan
Documents are ratified and confirmed.
9.6 Tolling. Any and all statutes of limitations, repose or similar
legal constraints on the time by which a claim must be filed, a person
given notice thereof, or asserted, that expire, run or lapse during the
Forbearance Period on any claims that any Lender may have against the
Credit Parties or any other persons relating to any Credit Party
(collectively, the "Forbearance Period Statutes of Limitation") will be
tolled during the Forbearance Period. The Credit Parties waive any defense
they may have against the Lenders under the Forbearance Period Statutes of
Limitation, applicable law or otherwise solely as to the expiration,
running or lapsing of the Forbearance Period Statutes of Limitation during
the Forbearance Period.
9.7 Revival of Obligations. If all or any part of any payment under or
on account of the Credit Agreement, the other Loan Documents, this
Amendment or any agreement, instrument or other document executed or
delivered by the Credit Parties in connection with this Amendment is
invalidated, set aside, declared or found to be void or voidable or
required to be repaid to the issuer or to any trustee, custodian, receiver,
conservator, master, liquidator or any other person pursuant to any
bankruptcy law or pursuant to any common law or equitable cause then, to
the extent of such invalidation, set aside, voidness, voidability or
required repayment, such payment would be deemed to not have been paid, and
the obligations of the Credit Parties in respect thereof shall be
immediately and automatically revived without the necessity of any action
by the Lenders.
9.8 References. From and after the Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein",
or words of like import, and each reference in the Credit Agreement or any
other Loan Document to the Credit Agreement, the Notes or to any term,
condition or provision contained "thereunder", "thereof", "therein", or
words of like import, mean and are a reference to the Credit Agreement or
the Notes (or such term, condition or provision, as applicable) as amended,
supplemented, restated or otherwise modified by this Amendment or the
Second Amended Notes, as applicable.
9.9 Costs, Expenses and Taxes. The Credit Parties affirm and
acknowledge that Section 15.5 of the Credit Agreement applies to this
Amendment and the transactions and agreements and documents contemplated
under this Amendment.
9.10 Waiver of Jury Trial. Each of the Credit Parties, the Agents and
the each Lender waives any right to a trial by jury in any action or
proceeding to enforce or defend any rights under this Agreement, and agrees
that any such action or proceeding shall be tried before a court and not
before a jury.
9.11 WAIVER OF CLAIMS. THE CREDIT PARTIES, IN EVERY CAPACITY,
INCLUDING, BUT NOT LIMITED TO, AS SHAREHOLDERS, PARTNERS, OFFICERS,
DIRECTORS, INVESTORS AND/OR CREDITORS OF ANY CREDIT PARTY, OR ANY ONE OR
MORE OF THEM, HEREBY WAIVE, DISCHARGE AND FOREVER RELEASE EACH AGENT AND
EACH LENDER AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS,
STOCKHOLDERS AND SUCCESSORS AND ASSIGNS FROM AND OF ANY AND ALL KNOWN
CLAIMS, CAUSES OF ACTION, DEFENSES, COUNTERCLAIMS OR OFFSETS AND/OR
ALLEGATIONS THE CREDIT PARTIES MAY HAVE OR MAY HAVE MADE OR THAT ARE BASED
ON FACTS OR CIRCUMSTANCES OF WHICH ANY CREDIT PARTY HAS KNOWLEDGE ARISING
AT ANY TIME UP THROUGH AND INCLUDING THE DATE OF THIS AGREEMENT AGAINST ANY
OR ALL OF ANY AGENT, ANY LENDER, OR ANY OF THEIR RESPECTIVE EMPLOYEES,
OFFICERS, DIRECTORS, ATTORNEYS, STOCKHOLDERS AND SUCCESSORS AND ASSIGNS.
[Balance of page intentionally left blank.]
Delivered at Chicago, Illinois, as of the date and year first above
written.
CREDIT PARTIES:
XXXX INDUSTRIES, INC.
XXXX INSTALLATION SERVICES, INC.
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX PRODUCTS, INC.
XXXX CONSTRUCTION, INC.
FOLDING CARRIER CORP.
XXXX FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By: /s/ Xxxx X. Xxx
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Name: Xxxx X. Xxx
Title: Vice President
(for each of the foregoing
entities)
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
U.S. BANK
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
COMERICA BANK
By: Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ASSOCIATED BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
