FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (the "First Amendment"),
entered into to be effective as of the 9th day of May, 1997, amends that certain
Stock Purchase Agreement (the "Agreement"), dated effective as of March 27,
1997, by and between Reliant Partners, L.P., a Texas limited partnership ("RP"),
and the parties listed on Schedule 1 thereto (the "Stockholders").
WHEREAS, RP and the Stockholders entered into the Agreement pursuant to
which RP agreed to purchase from the Stockholders certain securities of RBPI
Holding Corporation, a Delaware corporation (the "Company");
WHEREAS, RP has assigned (the "Assignment") to Reliant Partners II, L.P., a
Texas limited partnership ("RPII"), and the other parties listed on Appendix 1
(RPII and such other parties being herein referred to as the "Additional
Purchasers" and, together with RP, the "Purchasers"), interests in the Agreement
as specified on Appendix 1; and
WHEREAS, the Stockholders and the Purchasers desire to amend certain
provisions contained in the Agreement;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained herein, the parties hereto hereby agree as follows:
1. To reflect the Assignment, all references in the Agreement to
Purchaser shall be deemed to be references to the Purchasers and the permitted
successors and assigns of each of the Purchasers; PROVIDED, HOWEVER, that each
individual included in the Additional Purchasers shall be deemed to have made
only such of those representations and warranties contained in Section 3.2 of
the Agreement as would be appropriate for an individual to make; and PROVIDED
FURTHER, HOWEVER, that the representations and warranties contained in Section
3.2 shall be deemed to have been made by RP and each of the Additional
Purchasers severally and not jointly.
2. The Stockholders hereby expressly consent, in accordance with Section
9.7 of the Agreement, to the Assignment.
3. Exhibits A, C, E, G, H, I, J and K are hereby deleted in their
entireties and shall read in their entireties as set forth on Exhibits A, C, E,
G, H, I, J and K, respectively, attached hereto. Exhibit F shall be deemed to
be modified, as appropriate, to reflect the assignment to the Additional
Purchasers of interests in the Agreement and this First Amendment.
4. Section 1.3(a) of the Agreement is hereby amended in its entirety to
read as follows:
"1.3 PURCHASE PRICE. (a) In reliance on the representations,
warranties and agreements of the Stockholders contained herein and for
good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the
Stockholders and Purchasers agree that the following shall take place at
the Closing:
(i) Purchasers shall pay to the Holders, in immediately
available funds, an aggregate amount equal to the remainder of
$22,726,922.50 less the sum of (A) $250,000 to be paid by the Company
to Xxxxx X. Xxxxx as of the Closing as an extraordinary bonus, (B) the
aggregate cash payments required to be made to the Unitholders
pursuant to Section 1.4 hereof and (C) $250,000 to be delivered to
the Stockholders' Representative for satisfaction of Seller
Transaction Costs (as hereinafter defined) that are payable after the
Closing;
(ii) the Company shall (A) pay $7,373,077.50, in the
aggregate, to the Holders, in immediately available funds, and (B)
issue and deliver to the Holders notes in the form of Exhibit A hereto
(the "Holder Notes") in an aggregate principal amount equal to
$9,800,000 less the sum of the aggregate principal amount of Holder
Notes required to be issued to the Unitholders pursuant to Section 1.4
hereof, in such denominations and names as may be designated in
writing to Purchaser by the Stockholder Representative in accordance
with the terms of this Article I, it being agreed that each Holder
shall be entitled to its pro rata share of the cash payments and
Holder Notes issuable pursuant to this Section 1.3 based on its
relative ownership interest of Class A Common Stock and Class B Common
Stock, as set forth in Schedule I hereto."
5. Section 1.5 of the Agreement is hereby amended in its entirety to read
as follows:
"1.5 REDEMPTION OF CERTAIN SHARES. Notwithstanding anything
contained elsewhere herein, it is acknowledged by the parties hereto
that the payment of cash and issuance by the Company of Holder Notes
to the Holders pursuant to Section 1.3(a)(ii) above shall be in
redemption of such number of the Holders' shares of Class A Common
Stock and Class B Nonvoting Common Stock (the "Redemption Shares") as
are determined at the Closing based on the calculations set forth in
Exhibit C hereto. Any Shares of Class A Voting Stock owned by the
Stockholders not so redeemed shall be "Purchase Shares.""
6. Section 5.2(e) of the Agreement is hereby amended in its entirety to
read as follows:
"OPINION OF COUNSEL FOR RP AND RPII. The Stockholders shall have
received an opinion of counsel for RP and RPII dated the Closing Date
and in the form and the effect of Exhibit J hereto."
7. The first sentence of the final paragraph of Section 7.1, immediately
following subsection (d) of Section 7.1, is hereby amended in its entirety to
read as follows:
"The Stockholders agree to reimburse the Purchasers, pro rata in
accordance with their respective interests in the Company purchased
pursuant hereto and in
2
accordance with this Section 7.1, for any payment made by Purchasers at
any time after the Closing in respect of any liability or claim to which
the foregoing indemnity relates."
8. The caption and the introductory sentence to Section 7.2, immediately
prior to subsection (a) of Section 7.2, is hereby amended in its entirety to
read as follows:
"7.2 PURCHASERS' INDEMNIFICATION. If the transactions
contemplated hereby are consummated, the Purchasers agree, jointly and
severally as to RP and RPII, and severally and not jointly as to the
other Purchasers (pro rata in accordance with their respective
interests in the Company purchased pursuant hereto), to indemnify and
hold harmless the Stockholders, their affiliates, officers, directors,
owners, employees, agents and representatives against and in respect
of Damages that the Stockholders shall incur or suffer, which arise,
result from or relate to, directly or indirectly, in whole or in
part:"
9. The address for notice to the Purchasers contained in Section 9.4 is
hereby amended in its entirety to read as follows:
"If to Purchasers:
c/o Reliant Partners, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: W. Xxxxxx Xxxxxx
Facsimile No. (000) 000-0000"
10. Section 9.1 of the Agreement is hereby amended in its entirety to read
as follows:
"9.1 NO BROKERAGE. Purchasers hereby represent and warrant to
the Stockholders that they have not, and the Stockholders hereby
represent and warrant to Purchasers that neither the Stockholders nor
the Companies have, incurred any obligation or liability, contingent
or otherwise, for brokerage or finder's fees or agent's commissions or
other like payment in connection with this Agreement or the
transactions contemplated hereby, except the fees of Xxxxxx Group,
Inc., which will be paid by the Company, and the fees of Chase
Securities, Inc., which will be paid by Purchasers, and Purchasers, on
the one hand, and the Stockholders, on the other hand, hereby agree to
indemnify and hold the other harmless in respect of any costs,
liabilities or expenses, including, but not limited to, attorneys'
fees, arising out of or relating to a breach by such party of the
representation and warranty contained in this Section 9.1."
3
11. A new Section 9.16 is hereby added to the Agreement, which such
Section 9.16 shall read in its entirety as follows:
"9.16 PURCHASERS' REPRESENTATIVE.
(i) Each of the Purchasers hereby irrevocably appoints RP (the
"Purchasers' Representative") as such Purchaser's agent and attorney-in-fact
to take any action required or permitted to be taken by such Purchaser
under the terms of this Agreement, including, without limiting the
generality of the foregoing, the giving and receipt of any notices to be
delivered or received by or on behalf of any or all of the Purchasers, the
payment of expenses relating to the transactions contemplated by this
Agreement, the representation of the Purchasers in indemnification
proceedings hereunder, and the right to waive, modify or amend any of the
terms of this Agreement, and agrees to be bound by any and all actions
taken by such agent on such Purchaser's behalf. Each Purchaser further
agrees that the Purchasers' Representative, its agents, general partners
and representatives, shall be fully indemnified by the other Purchasers to
the fullest extent permitted by law for damages arising out of the
Purchasers' Representative's actions or omissions in such capacity. Each
Purchaser hereby acknowledges that the foregoing indemnity shall be
applicable to all claims, liabilities, losses, damages or expenses that
have resulted from or are alleged to have resulted from the active or
passive, or the sole, joint or concurrent, ordinary negligence of the
Purchasers' Representative.
(ii) The Stockholders shall be entitled to rely exclusively upon any
communications or writings given or executed by the Purchasers'
Representative and shall not be liable in any manner whatsoever for any
action taken or not taken in reliance upon the actions taken or not taken
or communications or writings given or executed by the Purchasers'
Representative. The Stockholders shall be entitled to disregard any
notices or communications given or made by the Purchasers unless given or
made through the Purchasers' Representative.
(iii) Subsequent to the Closing Date, in the event of the
inability of the Purchasers' Representative to perform its functions
hereunder, the former Purchasers shall promptly appoint a new agent or
agents as attorney-in-fact or attorneys-in-fact, and such appointment or
appointments shall be deemed to have been made when communicated to the
Stockholders' Representative in writing signed by the Purchasers (or the
personal representatives thereof) owning at least 51% of the Common Stock
of the Company purchased by the Purchasers on the date hereof. If the
Purchasers do not within fifteen days appoint a new agent or agents, then
the former Purchaser then living or existing who owns the greatest number
of shares of Common Stock of the Company shall serve as Purchasers'
Representative if he or it is able and willing to do so, until a successor
agent or agents shall have been appointed in accordance with the provisions
hereof.
(iv) The manner and form by which the Purchasers shall decide upon any
new agent and attorney-in-fact shall be decided solely by the Purchasers
owning 51% of the shares of Common Stock of the Company purchased by the
Purchasers on the date hereof. The Purchasers recognize, and hereby
acknowledge, that the Purchasers'
4
Representative has an interest in the subject matter of this Agreement
and that the appointment of such Purchasers' Representative (which shall
include any successor Purchasers' Representative) as the Purchasers'
Representative constitutes an irrevocable power-of-attorney coupled with
an interest."
12. Capitalized terms used but not defined herein shall have the same
meanings as set forth in the Agreement.
13. All terms and conditions of the Agreement, as amended hereby, remain
in full force and effect. The Stockholders and the Purchasers ratify and
confirm the Agreement and each of the schedules, appendices and/or exhibits
thereto as amended hereby.
14. This First Amendment may be executed in one or more counterparts, or
facsimiles thereof, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first set forth above.
STOCKHOLDERS:
XXXXXXX PARTNERS, L.P., on its own behalf and in
its capacity as Stockholders' Representative
By: Xxxxxxx Management Company, L.P.,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Its: Principal
---------------------------------------
PURCHASERS
RELIANT PARTNERS, L.P.
By: Group 31, Inc., General Partner
By: /s/ X.X. Xxxxxx
-------------------------------------------
Name: X.X. Xxxxxx
-------------------------------------------
Its: Vice President
-------------------------------------------
RELIANT PARTNERS II, L.P.
By: FW Group Genpar, Inc., General Partner
By: /s/ X.X. Xxxxxx
-------------------------------------------
Name: X.X. Xxxxxx
-------------------------------------------
Its: Vice President
-------------------------------------------
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
--------------------------------- -----------------------------------
XXXXX X. XXXXX XXXXXX X. XXXX
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Still
--------------------------------- -----------------------------------
XXXXXX XXXXXXX XXXXXXX X. STILL
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------- -----------------------------------
XXXX X. XXXXXX XXXXX X. XXXXX, XX.
6
APPENDIX 1
Name of Assignee Assigned Interest
---------------- -----------------
Reliant Partners II, L.P. 47.80%
Xxxxx X. Xxxxx 2.15%
Xxxxxx X. Xxxx 0.50%
Xxxxxxx X. Still 0.25%
Xxxx X. Xxxxxx 0.50%
Xxxxx X. Xxxxx, Xx. 0.50%
Xxxxxx Xxxxxxx 0.50%
7
NOTE NO. ________
EXHIBIT A
THIS NOTE IS ONE OF A SERIES OF NOTES (COLLECTIVELY, THE "NOTES") BEING EXECUTED
AND DELIVERED BY THE MAKER HEREOF PURSUANT TO THE TERMS OF THE STOCK PURCHASE
AGREEMENT (AS DEFINED HEREIN), SUCH NOTES BEING IN AN AGGREGATE PRINCIPAL AMOUNT
EQUAL TO $9,800,000.
THIS NOTE IS SUBJECT TO A RIGHT OF OFFSET IN THE MANNER AND TO THE EXTENT SET
FORTH IN SECTION 6.4 BELOW.
THIS NOTE CONTAINS INDEMNIFICATION PROVISIONS IN SECTION 6.4, NOTICE OF WHICH IS
HEREBY GIVEN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY APPLICABLE STATE SECURITIES LAW. IT MAY NOT BE OFFERED FOR SALE OR
SOLD IN THE ABSENCE OF: (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) APPLICABLE EXEMPTIONS
FROM SUCH REGISTRATION REQUIREMENTS.
RBPI HOLDING CORPORATION
SUBORDINATED NOTE
-----------------
$_______________________ May 9, 1997
FOR VALUE RECEIVED, RBPI Holding Corporation, a Delaware corporation
("Maker"), whose address is 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
promises to pay to _______________________________________ ("Payee"), at
___________________________________________, the aggregate principal sum of
__________________________ DOLLARS ($__________________), together with interest
thereon at the rates hereinafter provided.
Section 1. INTEREST. Interest on the principal amount of this Note
shall be payable, at Maker's option from time to time, either (a) in cash; (b)
by Capitalization of the Interest (as defined herein) as set forth in Section
3.2; or (c) any combination of (a) and (b) hereof. Interest paid in cash shall
accrue at the rate of ten percent (10.00%) per annum (the "Cash Interest Rate")
and interest paid by Capitalization of the Interest shall accrue at the rate of
twelve percent (12.00%) per annum (the "Capitalized Interest Rate") (such
interest rate, whether the Cash Interest Rate or the Capitalized Interest Rate
or a combination thereof, being hereinafter referred
to as the "Interest Rate"); PROVIDED, HOWEVER, that, upon the fourth
anniversary of this Note, the Interest Rate shall automatically increase by
two percent (2%) per annum and upon the fifth anniversary of this Note, the
Interest Rate shall automatically increase by one percent (1%) per annum.
Interest shall be payable semi-annually on the first business day of
________________ and _________________ of each year, commencing on _______,
1997 (each, an "Interest Payment Date"), based on a three hundred sixty-five
(365) day year for actual number of days elapsed.
Section 2. PAYMENT. The remaining outstanding principal amount of this
Note shall be due and payable on May 9, 2007.
Section 3. METHOD OF PAYMENT.
3.1 CASH PAYMENTS. Cash payments of principal, interest and other
amounts due hereunder shall be made in lawful money of the United States of
America by (a) in the case of payments of principal, wire transfer of
immediately available funds to the account of Payee designated in the records
maintained by Maker, and (b) in the case of interest and any and all other
payments, company check to Payee at the address set forth in Maker's records
unless and until Payee provides written notice to Maker to the contrary.
3.2 CAPITALIZED INTEREST. To the extent that Maker elects to add
accrued interest at any Interest Payment Date to the principal of this Note
("Capitalization of the Interest"), such accrued interest shall thereafter be
included in the principal amount of this Note for all purposes. In connection
with any such election by Maker, Maker shall notify in writing Payee of its
election and include in such notice a statement setting forth the new principal
of the Note as of such Interest Payment Date. Any notice hereunder to Payee
shall be delivered to Payee at the address for Payee set forth in Maker's
records unless and until Payee provides written notice to Maker to the contrary.
Section 4. DEFAULT INTEREST. If any installment of interest, or the
principal amount hereof, is not paid within fifteen (15) days after the due date
thereof, interest shall accrue on such unpaid amount at a default rate equal to
the lesser of (a) two percent (2%) per annum above the then applicable
Capitalized Interest Rate or (b) the highest rate permitted under applicable
law, until such amount is paid in full (the "Default Rate").
Section 5. PREPAYMENT.
5.1 VOLUNTARY PREPAYMENTS. This Note may be prepaid by Maker in
whole or in part at any time without prepayment premium or penalty; provided,
however, that any such prepayments shall be applied to the Notes on a pro rata
basis.
5.2 MANDATORY PREPAYMENTS.
(a) Not later than the date 120 days after the end of each
fiscal year of Maker ending after the date of this Note, subject to restrictions
contained in documents evidencing Senior Debt, Maker shall prepay this Note in
an aggregate amount equal to Payee's Pro Rata Share of the excess (if any) of
(i) 50% of Consolidated Available Cash Flow over (ii) the sum of (x) cash
interest paid on the Notes during such fiscal year and (y) the cumulative
amount, if any (calculated by reference to the aggregate principal amount of the
Notes outstanding at the beginning and at the end of such fiscal year), by which
the aggregate principal amount of the Notes has been reduced by prepayments of
the Notes made during such fiscal year.
2
(b) Not later than the date 15 days after the closing of a
Public Equity Offering by Maker, Maker shall prepay this Note in an aggregate
amount equal to Payee's Pro Rata Share of the excess (if any) of (i) the Net
Available Proceeds of the Public Equity Offering over (b) the amount of Net
Available Proceeds required to be applied to Senior Debt, which amount shall not
exceed 50% of Net Available Proceeds.
Section 6. DEFAULTS AND REMEDIES.
6.1 EVENTS OF DEFAULT. Any one or more of the following shall
constitute an Event of Default hereunder: (a) default shall be made in the
payment of the principal of this Note when and as the same shall become due and
payable, whether at stated maturity, by acceleration, or otherwise after five
(5) days notice of such failure from Payee; (b) Maker shall fail to pay within
ten (10) days following the due date any installment of interest hereof;
(c) Maker or the Operating Company shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or be generally unable to pay its debts as such debts
become due; (d) an involuntary case or other proceeding shall be commenced
against Maker or the Operating Company seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property or an order for relief shall be entered against
Maker under the federal bankruptcy laws or the laws of the jurisdiction of
organization of Maker as now or hereafter in effect, and such involuntary case
or other proceeding or order shall remain undismissed or unstayed for a period
of sixty (60) days, and if stayed, such involuntary case or other proceeding or
order shall be dismissed upon termination of such stay; (e) default shall be
made in the performance or observance of any other covenant, agreement or
condition contained herein and such default shall have continued for a period of
thirty (30) days after such default shall first have become known to Maker; or
(f) a Change in Control of Maker shall occur.
6.2 ACCELERATION. If (a) an Event of Default shall occur pursuant to
Sections 6.1(c) or (d), the principal of, and accrued interest on, and all other
amounts due under this Note shall become immediately due and payable, and
(b) any other Event of Default shall occur, the principal of, and accrued
interest on, and all other amounts due under, this Note shall become immediately
due and payable upon notice by Payee to Maker.
6.3 WAIVER OF PRESENTMENT, ETC. Maker hereby waives presentment,
demand, protest or notice of any kind in connection with this Note.
6.4 RIGHTS OF THIRD PARTIES. Notwithstanding anything contained
herein to the contrary, payments under this Note are subject to offset in the
event that there are indemnification claims made by Purchaser (as defined in the
Stock Purchase Agreement) to the extent and in the manner provided in the Stock
Purchase Agreement. Payments hereunder may be offset by an amount equal to the
total amount of such indemnification claim multiplied by Payee's Pro Rata Share.
Payee (and, by acceptance of an assignment of all or a portion of this
3
Note, Payee's successors and assigns) hereby irrevocably appoints Xxxxxxx
Partners, L.P. ("Xxxxxxx") as Payee's agent and attorney-in-fact to take any
action required or permitted to be taken by Payee under this Note, including,
without limiting the generality of the foregoing, the giving and receipt of
any notices to be delivered by or on behalf of Payee, the payment of expenses
relating to any dispute hereunder, the representation of Payee in
indemnification proceedings or in respect of any dispute hereunder, and the
right to waive, modify or amend any of the terms of this Note or settle any
dispute in respect hereof and agrees to be bound by any and all actions taken
by such agent on Payee's behalf. Payee further agrees to indemnify and hold
harmless Xxxxxxx, its general partners, agents and representatives
(collectively, for purposes of this Section 6.4, the "Xxxxxxx Indemnitees")
to the fullest extent permitted by law for damages arising out of the Xxxxxxx
Indemnitees' actions or omissions in such capacity. Payee hereby
acknowledges that the foregoing indemnity shall be applicable to all claims,
liabilities, losses, damages or expenses that have resulted from or are
alleged to have resulted from the active or passive or the sole, joint or
concurrent ordinary negligence of the Xxxxxxx Indemnitees.
Section 7. FINANCIAL STATEMENTS AND INFORMATION. Maker shall furnish
to Xxxxxxx, as agent for Payee, so long as this Note shall be outstanding:
(a) as soon as available and in any event within 45 days after
the end of the first, second and third quarterly accounting periods in each
fiscal year of Maker, copies of the consolidated balance sheet of Maker and its
Subsidiaries as of the end of such accounting period and copies of the related
consolidated statements of income and changes in shareholders equity and cash
flows of Maker and its Subsidiaries for the portion of the fiscal year ended
with the last day of such quarterly accounting period certified by the principal
financial officer of Maker to present fairly in all material respects the
information contained therein; PROVIDED, HOWEVER, that delivery of a copy of a
Quarterly Report on Form 10-Q (without exhibits unless requested by Payee) of
the Operating Company for such quarterly period filed with the Commission shall
be deemed to satisfy the requirements of this paragraph (a); and
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of Maker, copies of the consolidated balance
sheet of Maker and its Subsidiaries as of the end of such fiscal year and
copies of the related audited consolidated statements of income and changes
in shareholders equity and cash flows of Maker and its Subsidiaries for such
fiscal year; PROVIDED, HOWEVER, that delivery of a copy of an Annual Report
on Form 10-K (without exhibits unless requested by Payee) of the Operating
Company for such year filed with the Commission shall be deemed to satisfy
the requirements of this paragraph (b).
Section 8. COVENANTS. Maker covenants and agrees that on and after the
date hereof, so long as this Note shall be outstanding:
8.1 PAYMENT OF NOTE. Maker shall pay the principal of and interest
on this Note on the dates and in the manner provided herein.
8.2 LEGAL EXISTENCE. Maker shall do or cause to be done all things
necessary to preserve and keep in full force and effect its legal existence and
the legal existence of its Subsidiaries in accordance with the rights, licenses
and franchises of Maker and its Subsidiaries, except where the failure to so act
would not have a material adverse effect on Maker and its
4
Subsidiaries taken as a whole; PROVIDED, HOWEVER, Maker may merge or
consolidate with a corporation provided that the surviving corporation has a
Consolidated Net Worth equal to or in excess of that of Maker prior to such
merger or consolidation and PROVIDED FURTHER, that such corporation executes
an assumption agreement evidencing such corporation's assumption of all of
Maker's obligations under this Note and such other documents as Payee may
reasonably request; and PROVIDED FURTHER that one or more of its Subsidiaries
may merge with and into another Subsidiary or Maker.
8.3 LIMITATIONS ON RESTRICTED PAYMENTS. Maker shall not and shall
not permit any of its Subsidiaries to declare or pay any dividend on, or make
any distribution in respect of (other than dividends and distributions payable
exclusively in non-participating common equity interests or preferred equity
interests as to which dividends are payable solely in kind of Maker or a
Subsidiary), or purchase, redeem or retire for value any equity interests of
Maker or a Subsidiary (other than in exchange for Maker's or a Subsidiary's own
non-participating common equity interests or preferred equity interests as to
which dividends are payable solely in kind) (collectively, "Restricted
Payments"), except for the following: (i) dividends and distributions among
wholly-owned Subsidiaries; (ii) dividends and distributions from the
Subsidiaries to Maker solely to the extent all sums so dividended or distributed
are used by Maker for one of the following purposes: (x) to make mandatory
prepayments pursuant to the Notes; (y) to make voluntary prepayments pursuant to
the Notes; (z) to pay expenses of Maker to the extent permitted by Senior Debt;
and (xxx) to pay tax liabilities of Maker and its consolidated group; and (iii)
payments to repurchase equity interests and other rights and obligations owned
by former employees and others of up to $1,000,000 in the aggregate. The
foregoing provisions will not prevent the purchase or redemption of equity
interests in Maker or a Subsidiary with proceeds from concurrent sales of equity
interests in Maker or a Subsidiary; PROVIDED, HOWEVER, that in the event the
proceeds of such sale exceed $1,000,000, Maker shall apply toward the prepayment
of this Note Payee's Pro Rata Share of one-half of such proceeds in excess of $1
million.
8.4 LIMITATION ON OTHER DEBT. Other than Permitted Indebtedness,
Maker shall not incur, and shall not permit any of its Subsidiaries to incur,
any Indebtedness unless the ratio of Maker's EBITDA (taking into account on a
pro forma basis for historic operations without regard to synergies the results
of operations of any person acquired as if such acquisition had occurred at the
beginning of the period) for the preceding four fiscal quarters (or if fewer
than four fiscal quarters have elapsed since the date of this Note, then for the
number of fiscal quarters elapsed since the date of this Note) to Total Interest
Expense (taking into account on a pro forma basis interest expense on the
Indebtedness to be incurred as if it were incurred at the beginning of the
period) for the four fiscal quarters (or if fewer than four fiscal quarters have
elapsed since the date of this Note, then for the number of quarters elapsed
since the date of this Note), is at least 1.75:1.
8.5 L IMITATION ON LIENS. Maker shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer
to exist any Lien upon any of its assets now owned or hereafter acquired except
for Permitted Liens.
8.6 DISTRIBUTIONS FROM SUBSIDIARIES. Maker shall cause its
Subsidiaries to distribute sums to Maker to enable it to satisfy its obligations
set forth in Section 5.2 subject to restrictions contained in documents
evidencing Senior Debt and applicable law.
5
8.7 MANAGEMENT FEES. Maker shall not and shall not permit any of its
Subsidiaries to pay any management or consulting fees, or fees of a like nature,
to any affiliate of Maker except payments of compensation to Xxxxxx Group, Inc.
in exchange for consulting services to be provided by Xxxxxx Group, Inc. to
Maker and its Subsidiaries, reasonable compensation in connection with valid
services rendered, payable to employees of Maker and its Subsidiaries (other
than partners and Affiliates of Reliant Partners, L.P., a Texas limited
partnership, and/or Reliant Partners II, L.P., a Texas limited partnership) in
connection with their employment and payments being made simultaneously with the
issuance of this Note.
8.8 NOTIFICATION OF CALCULATION. Maker shall notify Xxxxxxx, as
agent for Payee, not later than 90 days after the end of each fiscal year of
Maker ending after the date of this Note of its calculation of Consolidated
Available Cash Flow for such fiscal year (whether or not any amounts will be due
and payable hereunder in respect thereof), with reasonable support for such
calculation.
8.9 CERTAIN CREDIT AGREEMENT PROVISIONS. Maker will use its
reasonable efforts to insure that the provisions of the Senior Debt allow the
payments called for by Section 5.2(a) above. Maker shall provide written notice
to Xxxxxxx prior to amending, restating or modifying the terms of the Senior
Debt.
Section 9. DEFINITIONS. The following terms, as used herein, have the
following respective meanings:
ACQUIRED INDEBTEDNESS means any Indebtedness incurred in connection
with the financing of all or any part of the acquisition or construction of any
property, whether incurred prior to, at the time of or within 120 days after,
the acquisition or completion of construction by Maker of such property.
AFFILIATE of any specified person shall mean any other person
controlling or controlled by or under common control with such specified person.
For purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
CAPITALIZED LEASE OBLIGATIONS means all obligations to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
property to the extent such obligations are required to be classified and
accounted for under GAAP as a capital lease on the balance sheet of the lessee.
CHANGE IN CONTROL means the occurrence of any of the following events
(whether or not approved by the Board of Directors of the Operating Company):
(i) prior to the first public offering of Voting Equity Interests of Maker or
the Operating Company, either (x) the Permitted Holders cease to be the
"beneficial owner" or "beneficial owners" (as defined in Rule 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of at least a majority of the
total voting power of the then outstanding Voting Equity Interests of Maker or
of the Operating Company, or (y) the Permitted Holders cease to be entitled by
voting power, contract or otherwise to elect or cause the election of directors
of Maker or the Operating Company having a majority of the total voting power of
the Board of Directors of Maker or the Operating Company, as the case may be, in
each case, whether as a result of issuance of securities of
6
Maker or the Operating Company, as the case may be, any merger consolidation,
liquidation or dissolution of Maker or the Operating Company, as the case may
be, any direct or indirect transfer of securities by any Permitted Holder or
otherwise (for purposes of this clause (i) and clause (ii) below, Permitted
Holders shall be deemed to beneficially own any Voting Equity Interests of an
entity (the "specified entity") held by any other entity (the "parent
entity") so long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, a majority of the voting power of the then
outstanding Voting Equity Interests of the parent entity); (ii) following the
first public offering of Voting Equity Interests of Maker or the Operating
Company, any Person (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (i) above, except that a
Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an event
or otherwise), directly or indirectly, of more than 35% of the total voting
power of the then outstanding Voting Equity Interests of Maker or the
Operating Company; PROVIDED, HOWEVER, that the Permitted Holders beneficially
own (as defined in clause (i) above), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the then
outstanding Voting Equity Interests of Maker or the Operating Company, as the
case may be, than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of Maker or the Operating Company, as the
case may be; (iii) Maker or the Operating Company consolidates with, or
merges with or into, another Person or, Maker or any of its Subsidiaries
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of the assets of Maker and its Subsidiaries (determined on
a consolidated basis) to any Person (other than the Operating Company or any
Wholly Owned Restricted Subsidiary) or the Operating Company or the
Restricted Subsidiaries sell, assign, convey, transfer, lease or otherwise
dispose of all or substantially all of the assets of the Operating Company
and the Restricted Subsidiaries (determined on a consolidated basis) to any
Person (other than a Wholly Owned Restricted Subsidiary), or any Person
consolidates with, or merges with or into, Maker or the Operating Company,
other than any such transaction where immediately after such transaction the
Person or Persons that "beneficially owned" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time) immediately prior to such transaction, directly or
indirectly, the then outstanding Voting Equity Interests of Maker or the
Operating Company, as the case may be, "beneficially own" (as so determined),
directly or indirectly, a majority of the total voting power of the then
outstanding Voting Equity Interests of the surviving or transferee Person; or
(iv) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of Maker or the
Operating Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of
Maker or the Operating Company, as the case may be, was approved by a vote of
a majority of the directors of Maker or the Operating Company, as the case
may be, then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of Maker or the Operating Company, as the case may be, then in
office.
7
COMMISSION means the Securities and Exchange Commission.
CONSOLIDATED AVAILABLE CASH FLOW means EBITDA MINUS payments made in
respect of capital expenditures, Total Interest Expense, principal payments on
indebtedness, increases in working capital and payments of taxes.
CONSOLIDATED NET INCOME means, for any fiscal period, the consolidated
net earnings or loss of Maker and its Subsidiaries as the same would appear on a
consolidated statement of earnings of Maker for such fiscal period prepared in
accordance with GAAP.
CREDIT AGREEMENT means the Credit Agreement dated as of even date
herewith among the Operating Company, each of the financial institutions which
is a signatory thereto or which may from time to time become a party thereto and
The Chase Manhattan Bank, as agent, as the same may be amended, restated,
modified, extended or supplemented from time to time in accordance with its
terms and any successor financial institution credit agreement refinancing all
or a portion of the Credit Agreement and designated by Maker as the Credit
Agreement for purposes hereof.
EBITDA means Consolidated Net Income plus Total Interest Expense,
income taxes, depreciation and amortization.
EQUITY INTEREST in any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or limited, in
such Person, including any Preferred Equity Interests.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
GAAP means generally accepted accounting principles applied on a
consistent basis.
INDEBTEDNESS means (a) any obligation for borrowed money, (b) any
obligation owed for all or any part of the purchase price of property or other
assets or for the cost of property or other assets constructed or of
improvements thereto, other than accounts payable included in current
liabilities and incurred in the ordinary course of business, (c) any obligations
secured by any lien in respect of property even though the person owning the
property has not assumed or become liable for the payment of such obligation,
(d) any lease obligation capitalized on Maker's books, (e) any guarantee with
respect to Indebtedness (of the kind otherwise described in this definition) of
another person and (f) obligations in respect of letters of credit.
INDENTURE means the Indenture dated as of even date herewith among the
Operating Company, the Guarantors (as defined in the Indenture) and Bank One,
Columbus, NA, as trustee, as the same may be amended, restated, modified,
extended or supplemented from time to time in accordance with its terms.
INTEREST EXPENSE means, for any period, the sum, for Maker and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) all interest in respect of Indebtedness (including,
without limitation, the interest component of any payments in respect of capital
lease obligations) accrued or capitalized during such period (whether or not
actually paid during such period).
8
LIEN means any lien, security interest, charge or encumbrance of any
kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security interest).
NET AVAILABLE PROCEEDS means the aggregate amount of cash received by
Maker in respect of a Public Equity Offering, net of all expenses incurred by
Maker in connection therewith and any underwriting fees and expense.
OPERATING COMPANY means Xxxxxx Building Products, Inc., a Delaware
corporation and wholly-owed subsidiary of Maker.
PERMITTED HOLDER means any of (i) Reliant Partners, L.P. and Reliant
Partners II, L.P. and their direct and indirect general and limited partners on
the date hereof; (ii) any of the Permitted Transferees of the persons referred
to in clause (i); and (iii) any person or group controlled by each or any of the
Persons referred to in clauses (i) and (ii).
PERMITTED INDEBTEDNESS means any of the following:
(i) Senior Debt in an aggregate principal amount at any one time
outstanding not to exceed the sum of (A) the greater of (i) $25.0 million
and (ii) the sum of (a) 85% of Eligible Receivables (as defined in the
Credit Agreement as in effect on the date hereof whether or not the Credit
Agreement is in effect on the date of determination), PLUS (b) 50% of
Eligible Inventory (as defined in the Credit Agreement as in effect on the
date hereof whether or not the Credit Agreement is in effect on the date of
determination), PLUS (B) any amounts outstanding under the Credit Agreement
that utilize subparagraph (vii) of this definition plus the aggregate
amount outstanding under the Indenture;
(ii) intercompany Indebtedness;
(iii) Indebtedness in respect of the Notes;
(iv) Indebtedness in respect of any performance bonds, letters of
credit or other similar instruments and obligations entered into in the
ordinary course of business consistent with past practices;
(v) Indebtedness in respect of Capitalized Lease Obligations,
purchase money obligations and Acquired Indebtedness, not to exceed $10
million;
(vi) Indebtedness existing on the date of this Note;
(vii) other Indebtedness not to exceed $15 million;
(viii) Indebtedness in respect of any interest rate protection or
hedging arrangements entered into in order to fix the floating interest
rate of any Permitted Indebtedness, to the extent that such Permitted
Indebtedness is incurred prior to or at the time of entry into such
arrangement or is reasonably expected to be incurred within thirty days
thereafter, in an amount not exceeding the notional principal amount of
such Permitted Indebtedness; and
(ix) any Indebtedness incurred in exchange for or the proceeds of
which are used to exchange, refinance or refund Indebtedness referenced in
any of (i) through (viii) above; PROVIDED, HOWEVER, that the principal
amount of the Indebtedness so incurred does
9
not exceed the principal amount (plus any premium) of the Indebtedness
so exchanged, refinanced or refunded.
PERMITTED LIENS means any of the following:
(i) any Lien on property if such Lien is in existence at the time of
acquisition by Maker of such property or is to secure any Indebtedness
permitted hereunder that is incurred (prior to, at the time of or within
120 days after, the acquisition or completion of construction by Maker of
such property) for the purpose of, or in connection with, financing all or
any part of the acquisition or the cost of construction thereof;
(ii) any Lien on property of a corporation if such Lien is in
existence at the time such corporation is merged into or consolidated with
Maker or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety
to Maker or any Lien on property of a person not a corporation if such Lien
is in existence at the time of a sale, lease or other disposition of the
properties of such person as an entirety or substantially as an entirety to
Maker, PROVIDED, in each such case, that (i) such Lien is not created in
contemplation of such merger, consolidation or disposition and does not
extend to properties not subject thereto immediately prior to such merger,
consolidation or disposition and (ii) any Indebtedness incurred or assumed
in connection therewith is permitted hereunder;
(iii) any Lien existing on the date of this Note;
(iv) Liens to secure the Senior Debt;
(v) Encumbrances consisting of minor easements, zoning restrictions,
or other restrictions on the use of real property that do not (individually
or in the aggregate) materially affect the value of the assets encumbered
thereby or materially impair the ability of Maker to use such assets in
their respective businesses, and none of which is violated in any material
respect by existing or proposed structures or land use;
(vi) Liens for taxes, assessments, or other governmental charges which
are not delinquent or which are being contested in good faith and for which
adequate reserves have been established;
(vii) Liens of mechanics, materialmen, warehousemen, carriers or other
similar statutory Liens securing obligations that are not yet due and are
incurred in the ordinary course of business or which are being contested in
good faith and for which adequate reserves have been established;
(viii) Liens resulting from good faith deposits to secure payments of
worker's compensation or other social security programs or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, or contracts (other than for payment of Indebtedness) in the ordinary
course of business;
(ix) Liens for purchase money obligations and Capitalized Lease
Obligations; PROVIDED that any such Lien encumbers only the asset so
purchased or leased and the associated Indebtedness is otherwise permitted
hereunder;
10
(x) Leases or subleases granted to others for fair market value
consideration, in any such case not interfering in any material respect
with the business of Maker;
(xi) Liens held by operators under operating agreements for amounts
not yet due and payable;
(xii) Liens securing Permitted Indebtedness; or
(xiii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) through (xii), inclusive;
PROVIDED, HOWEVER, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of Indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal, or replacement Lien shall be limited to all or part of
the asset which secured the Indebtedness secured by the Lien so extended,
renewed or replaced (plus improvements on such asset).
PERMITTED TRANSFEREE means, with respect to any Person: (a) in the
case of any Person who is a natural person, such individual's spouse or
children, any trust for such individual's benefit or the benefit of such
individual's spouse or children, or any corporation or partnership in which the
direct and beneficial owner of all of the equity interest is such Person or such
individual's spouse or children or any trust for the benefit of such persons;
(b) in the case of any Person who is a natural person, the heirs, executors,
administrators or personal representatives upon the death of such Person or upon
the incompetency or disability of such Person for purposes of the protection and
management of such individual's assets; and (c) in the case of any Person who is
not a natural person, any Affiliate of such Person.
PERSON means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, limited liability
limited partnership, trust, unincorporated organization or government or any
agency or political subdivision thereof.
PRO RATA SHARE means a fraction the numerator of which is the stated
principal amount of this Note and the denominator of which is the aggregate
stated principal amount of the Notes.
PREFERRED EQUITY INTEREST, in any person, means an Equity Interest of
any class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over Equity
Interests of any other class in such Person.
PUBLIC EQUITY OFFERING means a public offering of some or all of
Maker's equity interests, which yields Net Available Proceeds of at least
$30,000,000.
RESTRICTED SUBSIDIARY means any Subsidiary of the Operating Company
that has not been designated as an Unrestricted Subsidiary pursuant to the
Indenture.
SENIOR DEBT means (a) the principal amount under the Credit Agreement
and premium, if any, and interest thereon (including, without limitation, any
interest (Post-Petition Interest) which accrues (or which would accrue but for
such case, proceeding or other action) after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of Maker (whether or not such interest is allowed as a claim in
such
11
case, proceeding or other action)), and all Notes issued pursuant to, the
Credit Agreement, (b) the principal amount under the Indenture and premium, if
any, and interest thereon (including, without limitation, any interest
(Post-Petition Interest) which accrues (or which would accrue but for such case,
proceeding or other action) after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of Maker
(whether or not such interest is allowed as a claim in such case, proceeding or
other action)), and all Notes issued pursuant to, the Indenture; (c) any
renewals, refinancings or extensions of any of the foregoing (or any portion
thereof) (including Post-Petition Interest), and any increases in the foregoing
and (d) all fees, expenses, indemnities and all other amounts payable by Maker
thereunder or with respect thereto, including under any other Financing
Document. Terms used in this definition that are not defined herein have the
meaning specified in the Credit Agreement or the Indenture, as appropriate.
STOCK PURCHASE AGREEMENT means the Stock Purchase Agreement, dated as
of March 27, 1997, by and among Reliant Partners, L.P. and the stockholders of
Maker named therein, as the same may be amended, restated, modified, extended or
supplemented from time to time in accordance with its terms.
SUBSIDIARY means any corporation, partnership or other entity of which
at least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by Maker or one or more Subsidiaries of Maker or
by Maker and one or more Subsidiaries of Maker.
TOTAL INTEREST EXPENSE means, for any period, the Interest Expense
(net of interest income) of Maker and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, whether paid or
accrued, to the extent such expense was deducted in computing Consolidated Net
Income.
UNRESTRICTED SUBSIDIARY means any Subsidiary of the Operating Company
designated as such pursuant to the Indenture.
VOTING EQUITY INTERESTS means Equity Interests in a corporation or
other Person with voting power under ordinary circumstances entitling the
holders thereof to elect the board of directors or other governing body of such
corporation or Person.
WHOLLY OWNED RESTRICTED SUBSIDIARY means any Restricted Subsidiary all
of the outstanding Voting Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Operating Company.
Section 10. MISCELLANEOUS.
10.1 NO WAIVER. It is expressly agreed that any waiver by Payee of
any item or provision hereof or of any right, remedy or option under this Note
shall not be controlling, nor shall it prevent or estop Payee from thereafter
enforcing such term, provision, right, remedy or option in any other instance,
and neither the failure or refusal of Payee to insist in any one or more
instances upon the strict performance of this Note, nor the acceptance by Payee
of any
12
payment less than the amount then due hereunder, shall be construed as a
waiver or relinquishment for the future of any such term or provision or the
amount remaining due, but the same shall continue in full force and effect,
it being understood and agreed that Payee's rights, remedies and options
under this Note are and shall be cumulative and are in addition to all of the
rights, remedies and options of Payee in law or in equity, or under any other
agreement.
10.2 SAVINGS CLAUSE. If at any time the Interest Rate or Default
Rate, together with all fees and charges, if any, contracted for, charged,
received, taken or reserved by Payee in connection with this Note that may be
treated as interest under applicable law (collectively, the "Charges"), computed
over the full term of this Note, exceeds the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by
Payee in accordance with the laws of the State of Texas from time to time in
effect, except to the extent federal law permits Payee to contract for, charge
or receive a greater amount of interest, due credit being given for all charges
made in connection with this Note that may be treated as interest under
applicable law, the rate of interest payable hereunder, together with all
Charges, shall be limited to the Maximum Rate; PROVIDED, HOWEVER, that upon any
subsequent increase in the Maximum Rate from time to time, the interest charged
on the unpaid principal amount of this Note shall remain equal to the Maximum
Rate, and any subsequent reduction in the Interest Rate shall not reduce the
rate borne by this Note, until the total amount of interest earned hereunder,
together with all Charges, equals the total amount of interest which would have
accrued at the Interest Rate if the Interest Rate had at all times been in
effect; and PROVIDED, FURTHER, that if at maturity or final payment of this Note
the total amount of interest paid or accrued under the foregoing provisions is
less than the total amount of interest which would have accrued if the Interest
Rate had at all times been in effect, Maker agrees to pay Payee, to the extent
allowed by the then applicable law, an amount equal to the difference between
(a) the lesser of (i) the amount of interest which would have been accrued on
this Note if the Maximum Rate had at all times been in effect, and (ii) the
amount of interest which would have accrued if the Interest Rate had at all
times been in effect, and (b) the amount of interest actually accrued in
accordance with the provisions of this Note.
10.3 AMENDMENTS; BINDING EFFECT. This Note may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto.
This Note shall be binding upon the successors, permitted assigns and legal
representatives of Maker.
10.4 ASSIGNMENT; ENTIRE AGREEMENT. Neither Maker nor Payee may assign
its rights under this Note or any interest therein without the prior written
consent of the other party. [INSERT TO XXXXXXX PARTNERS, L.P. NOTE ONLY: ";
PROVIDED, HOWEVER, PAYEE SHALL BE PERMITTED TO ASSIGN ITS RIGHTS HEREUNDER, IN
WHOLE OR IN PART, TO ANY OF ITS LIMITED PARTNERS."] This Note constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
10.5 NOTICES. All notices hereunder shall be in writing (including
prepaid overnight courier, facsimile transmission or similar writing) and shall
be delivered to Maker at its address set forth in the first paragraph of this
Note and to Payee at its address set forth in the first paragraph of this Note
or at such other address as shall be specified by like notice to Payee or Maker
as applicable. All notices shall be deemed given as of the date when such
13
notice is first delivered by hand or sent by telecopier (receipt confirmed, with
a copy simultaneously mailed registered mail), one day after depositing for
delivery, fee prepaid, with a Federal Express or similar overnight deliver
service and five days after mailing, postage prepaid and properly addressed in
the U.S. mails.
10.6 GOVERNING LAW. This Note shall be governed by, and the
terms and provisions hereof and the rights and duties created hereby shall be
interpreted, construed and enforced in accordance with, the laws of the State of
Texas, without giving effect to conflicts of law provisions.
10.7 WAIVER OF JURY TRIAL. THE MAKER AND PAYEE HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Remainder of Page Intentionally Left Blank.]
14
IN WITNESS WHEREOF, Maker has caused this Subordinated Note to be executed
and delivered by its duly authorized officer, as of the day and year and at the
place first above written.
RBPI HOLDING CORPORATION
By:
-----------------------------------
Title:
---------------------------------
[For management stockholders receiving loans from Keystone, Inc. to purchase
stock from RBPI, add the following endorsement:]
This endorsement is made in accordance with that certain Pledge Agreement dated
effective as of May 9, 1997, by and between ________________________, an
individual, as pledgor, and Keystone, Inc., a Texas corporation, as pledgee.
PAY TO THE ORDER OF KEYSTONE, INC., a Texas corporation.
---------------------------------------
[Name of individual Payee under this
Subordinated Note.]
15
EXHIBIT C
[Intentionally Omitted]
COMPLIANCE CERTIFICATE
This certificate is delivered by the undersigned (the "Stockholders") to
the Purchasers (as defined in the Purchase Agreement (as defined below)),
pursuant to Section 5.1(c) of the Stock Purchase Agreement, dated as of March
27, 1997, by and among Reliant Partners, L.P. and the Stockholders, as amended
by the First Amendment to Stock Purchase Agreement, dated as of May 9, 1997, by
and among the Stockholders and the Purchasers (as so amended, the "Purchase
Agreement"), relating to the acquisition of capital stock of RBPI Holding
Corporation, a Delaware corporation (the "Corporation"). Capitalized terms used
herein without definition shall have the meanings set forth in the Purchase
Agreement. The Stockholders hereby certify as follows:
1. All representations and warranties of the Stockholders contained in
the Purchase Agreement are true and correct in all material respects
on and as of the date when made and on and as of the date hereof.
2. The Stockholders have performed and complied with in all material
respects, and caused each of the Companies to have performed and
complied with in all material respects, all agreements and conditions
required by the Purchase Agreement to be performed or complied with by
them on or prior to the Closing Date.
IN WITNESS WHEREOF, the undersigned have signed this Certificate in one or
more counterparts effective as of the 9th day of May, 1997.
XXXXXXX PARTNERS, X.X. XXXXXXX X. XXXXXX AND
XXXXXXXXX XXXXXX REVOCABLE
By: Xxxxxxx Management Company, L.P., TRUST U/A/D 07/30/92
its general partner
By: By:
---------------------------- -------------------------------
Name: Name:
-------------------------- -----------------------------
Its: Its:
--------------------------- ------------------------------
XXXXXXX AFFILIATES, L.P. ----------------------------------
V. XXXXXX XXXXXXXXXX, XX.
By:
---------------------------
Name:
-------------------------
Its: MAY FINANCIAL CORPORATION
------------------------- FBO XXXX X. XXXXXXX XXX
By:
------------------------------
Name:
----------------------------
Its:
-----------------------------
CERTIFICATE
This certificate is delivered by the undersigned (the "Stockholders") to
the Purchasers (as defined in the Purchase Agreement (as defined below)),
pursuant to Section 5.1(g) of the Stock Purchase Agreement, dated as of March
27, 1997, by and among Reliant Partners, L.P. and the Stockholders, as amended
by the First Amendment to Stock Purchase Agreement, dated as of May 9, 1997, by
and among the Stockholders and the Purchasers (as so amended, the "Purchase
Agreement"), relating to the acquisition of capital stock of RBPI Holding
Corporation, a Delaware corporation (the "Corporation"). Capitalized terms used
herein without definition shall have the meanings set forth in the Purchase
Agreement.
The Stockholders hereby certify that no Material Adverse Effect has
occurred from the date of the Purchase Agreement to the Closing Date, and no
damage, destruction or loss, whether or not covered by insurance, adversely
affecting in any material respect the properties, businesses, prospects or
assets of the Companies has occurred or been threatened.
IN WITNESS WHEREOF, the undersigned have signed this Certificate effective
as of the 9th day of May, 1997.
XXXXXXX PARTNERS, X.X. XXXXXXX X. XXXXXX AND
XXXXXXXXX XXXXXX REVOCABLE
By: Xxxxxxx Management Company, L.P., TRUST U/A/D 07/30/92
its general partner
By: By:
---------------------------- -------------------------------
Name: Name:
-------------------------- -----------------------------
Its: Its:
--------------------------- ------------------------------
XXXXXXX AFFILIATES, L.P. ----------------------------------
V. XXXXXX XXXXXXXXXX, XX.
By:
---------------------------
Name:
-------------------------
Its: MAY FINANCIAL CORPORATION
------------------------- FBO XXXX X. XXXXXXX XXX
By:
------------------------------
Name:
----------------------------
Its:
-----------------------------
EXHIBIT H
TERMINATION OF INTERCOMPANY AGREEMENTS
This Termination Agreement (the "Agreement"), dated effective as of the
____ day of ____________, 1997 (the "Effective Date"), is by and among RBPI
Holding Corporation, a Delaware corporation ("Holding"), each of the
Stockholders of Holding (the "Stockholders'), Xxxxxx Building Products, Inc.,
a Delaware corporation (the "Operating Company"), and each of its
subsidiaries noted on the signature pages hereto (collectively with the
Operating Company, the "Companies").
RECITALS
In connection with the Stock Purchase Agreement dated as of March 27,
1997 by and among Reliant Partners, L.P. and the Stockholders, as amended by
the First Amendment to Stock Purchase Agreement (as so amended, the "Purchase
Agreement"), dated as of May __, 1997, by and among the Stockholders and the
Purchasers (as defined in the Purchase Agreement), the parties hereto desire
to terminate all management and other intercompany agreements among the
Companies and the Stockholders and Affiliates of the Stockholders as of the
Effective Date. Capitalized terms used herein without definition shall have
the meanings as set forth in the Purchase Agreement.
NOW, THEREFORE, in consideration of the provisions and respective
agreements hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. TERMINATION OF AGREEMENTS. As of the Effective Date, all management
and other intercompany agreements among the Companies, on the one hand, and
the Stockholders and Affiliates of the Stockholders, on the other hand,
including, without limitation, the Oral Management and Consulting Fee
Agreement by and between Xxxxxxx Partners, L.P. and Holding, are hereby
terminated and are of no further force or effect.
2. CANCELLATION OF INDEBTEDNESS. As of the Effective Date, all
indebtedness of the Companies to the Stockholders and the Affiliates of the
Stockholders is hereby cancelled and of no further force or effect.
3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
Agreement.
4. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
COMPANIES
RBPI HOLDING CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXX BUILDING PRODUCTS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
RBP OF ARIZONA, INC.
RBP CUSTOM GLASS, INC.
RBP FENESCO, INC.
RBP OF TEXAS, INC.
RBP TRANS, INC.
XXXXX BUILDERS SUPPLY,
INCORPORATED
NUPRIME OF DENVER, INC.
TIMBER TECH, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
STOCKHOLDERS
XXXXXXX PARTNERS, L.P.
By: Xxxxxxx Management Company, L.P.,
its general partner
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
XXXXXXX AFFILIATES, L.P.
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
2
XXXXXXX X. XXXXXX AND
XXXXXXXXX XXXXXX
REVOCABLE TRUST
U/A/D 07/30/92
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
--------------------------------------------
V. XXXXXX XXXXXXXXXX, XX.
MAY FINANCIAL CORPORATION
FBO XXXX X. XXXXXXX XXX
By:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
3
EXHIBIT I
RELIANT PARTNERS, L.P.
000 XXXX XXXXXX, XXXXX 0000
XXXX XXXXX, XXXXX 00000
March 27, 1997
[Certain Members of Senior Management]
--------------------------
--------------------------
Re: Application of Net Incentive Payments
Dear Mr. __________:
Reference is made to (i) that certain Stock Purchase Agreement, dated as
of even date herewith (the "Purchase Agreement"), by and between the parties
listed on Schedule I thereto (the "Stockholders") and Reliant Partners, L.P.,
a Texas limited partnership ("Purchaser"), pertaining to Purchaser's purchase
of capital stock of RBPI Holding Corporation, a Delaware corporation
("RBPI"), from the Stockholders; and (ii) that certain RBPI Incentive Unit
Agreement by and between you and RBPI (the "Incentive Agreement").
You hereby acknowledge and agree that immediately upon your receipt of
payments pursuant to the Incentive Agreement you will pay the Net Cash
Incentive Payment (as defined below) to RBPI in consideration of the purchase
by you of an interest in RBPI, such purchase to be at the same price, on the
same terms and subject to the same conditions as interests in RBPI are sold
to others. As used herein, the term "Net Cash Incentive Payment" shall mean
the difference between (a) the amount of cash to be paid to you by RBPI as of
the Closing of the transactions contemplated by the Stock Purchase Agreement
in respect of the Incentive Agreement as a direct or indirect result of the
consummation of the transactions contemplated by the Purchase Agreement and
(b) the amount of taxes payable by you in respect of (i) the cash amounts
payable and (ii) the promissory note issuable to you in satisfaction of
RBPI's obligations to you under the Incentive Agreement.
[Remainder of Page Intentionally Left Blank]
If the foregoing sets forth the agreement of the parties with regard to
the matters addressed herein, please so evidence by signing the attached
duplicate original of this letter in the space provided for your signature
and returning it to the undersigned, whereupon the provisions hereof will
constitute a binding agreement.
Sincerely,
RELIANT PARTNERS, L.P.
By: Reliant Investment Partners, L.P., its
General Partner
By: Group 31, Inc., its General Partner
By:
----------------------------------------
Title:
-------------------------------------
AGREED TO AND
ACKNOWLEDGED BY:
--------------------------------------
[CERTAIN MEMBERS OF SENIOR MANAGEMENT]
RBPI HOLDING CORPORATION
By:
----------------------------------
Title:
-------------------------------
2
May 9, 1997
Xxxxxxx Partners, X.X.
Xxxxxxx Affiliates, X.X.
Xxxxxxx X. Xxxxxx and Xxxxxxxxx
Xxxxxx Revocable Trust U/A/D 07/30/92
V. Xxxxxx Xxxxxxxxxx
May Financial Corporation
FBO Xxxx X. Xxxxxxx XXX
c/x Xxxxxxx Partners, L.P.
000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of
March 27, 1997 by and among Reliant Partners, L.P., a Texas limited
partnership ("Reliant") and Xxxxxxx Partners, L.P., Xxxxxxx
Affiliates, L.P., Xxxxxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx Revocable
Trust U/A/D 07/30/92, V. Xxxxxx Xxxxxxxxxx, and May Financial
Corporation FBO Xxxx X. Xxxxxxx XXX (collectively, the "Stockholders")
Ladies and Gentlemen:
This firm has acted as legal counsel to Purchasers (as defined herein),
for the purpose of delivering this opinion letter to you, as provided by
Section 5.2(e) of the Agreement (as defined herein).
Except as otherwise indicated herein, capitalized terms used in this
opinion letter are defined as set forth in the Agreement.
In rendering this opinion, we have examined (a) the Stock Purchase
Agreement; (b) the First Amendment to the Stock Purchase Agreement (the
"Amendment") dated as of the date hereof, by and among Reliant, Sellers,
Reliant Partners II, L.P., a Texas limited partnership ("Reliant II"), Xxxxx
X. Xxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Still, Xxxx X. Xxxxxx, Xxxxx X. Xxxxx,
Xx. and Xxxxxx Xxxxxxx; (c) the Amended and Restated Limited Partnership
Agreement of Reliant and a copy of its certificate of limited partnership
certified by the Secretary of State of the State of Texas as of May 7, 1997;
and (d) the Limited Partnership Agreement of Reliant II and a copy of its
certificate of limited partnership certified by the Secretary of State of the
State of Texas as of May 7, 1997.
The Stock Purchase Agreement as amended by the Amendment is referred to
herein as the "Agreement." Reliant and Reliant II are collectively referred
to herein as the "Purchasers."
Xxxxxxx Partners, L.P. et al
May 9, 1997
Page 2 of 6
In rendering this opinion, we have made the following assumptions:
(a) All natural persons have sufficient legal capacity to enter into
the transaction contemplated by the Agreement (the "Transaction") and to
perform their roles thereunder.
(b) Each of the Purchasers holds requisite title and rights to any
property involved in the Transaction.
(c) Each party to the Transaction (other than the Purchasers) has
satisfied those legal requirements that are applicable to it to the extent
necessary to make the Agreement enforceable against it.
(d) Each party to the Transaction (other than the Purchasers) has
complied with all legal requirements pertaining to its status as such status
relates to its rights to enforce the Agreement against the Purchasers.
(e) Each document that we have reviewed in connection herewith is
accurate and complete, each such document that is an original is authentic,
each such document that is a copy conforms to an authentic original, and all
signatures on each such document (other than the signatures by the Purchasers
on the Agreement) are genuine.
(f) Each certificate of a public authority on which we have relied is
accurate, complete and authentic and all official public records (including
their proper indexing and filing) are accurate and complete.
(g) There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
(h) The conduct of the parties to the Transaction has complied with any
requirement of good faith, fair dealing and conscionability.
(i) You and agents acting for you in connection with the Transaction
have acted in good faith and without any notice of any defense against the
enforcement of any rights created by, or adverse claim to any property or
security interest transferred or created as part of, the Transaction.
(j) There are no agreements or understandings among the parties to the
Transaction, written or oral, and there is no usage of trade or course of
prior dealing among the parties that would, in either case, define,
supplement or qualify the terms of the Documents.
(k) All statutes, judicial and administrative decisions, and rules and
regulations of governmental agencies, constituting the law of the State of
Texas, are generally available (i.e., in terms of access and distribution
following publication or other release) to lawyers practicing in the State of
Texas, and are in a format that makes legal research reasonably feasible.
Xxxxxxx Partners, L.P. et al
May 9, 1997
Page 3 of 6
(l) The constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue unless a reported decision has
specifically addressed but not resolved, or has established, its
unconstitutionality or invalidity.
(m) Agreements to which any of the Purchasers is a party or by which
any of them or their property is bound, other than the Agreement ("Other
Agreements"), court and administrative orders, writs, judgments and decrees
that name any of the Purchasers and are specifically directed to any of them
or their property ("Court Orders") would be enforced as written.
(n) Neither of the Purchasers will in the future take any discretionary
action (including a decision not to act) permitted under the Agreement that
would result in a violation of law or constitute a breach or default under
any Other Agreement or Court Order.
(o) Each of the Purchasers will obtain all permits and governmental
approvals required in the future, and take all actions similarly required,
relevant to subsequent consummation of the Transaction or performance of the
Agreement.
(p) All parties to the Transaction will act in accordance with, and
will refrain from taking any action that is forbidden by, the terms and
conditions of the Agreement.
Based upon and subject to the foregoing, and the other limitations and
qualifications set forth herein, we are of the opinion that:
1. Each of the Purchasers was formed and exists as a limited partnership
under the laws of the State of Texas.
2. Each of the Purchasers has the partnership power and authority to
execute and deliver the Agreement and to perform its respective
obligations under the Agreement.
3. The Agreement has been authorized, executed and delivered by each
of the Purchasers, and constitutes the legal and enforceable obligation of
each of the Purchasers.
4. The execution and delivery of the Agreement by the Purchasers do
not, and the performance of the Agreement by the Purchasers will not,
render either Purchaser in violation of its respective Limited Partnership
Agreement or Certificate of Limited Partnership, or any statute or
regulation by which either Purchaser is bound. We have no knowledge that
the execution and delivery of the Agreement by either Purchaser will
(i) result in the violation of any order or judgment of any court,
government agency or arbitrator in which either Purchaser is named, or
(ii) constitute a breach of any other agreement to which either Purchaser
is a party.
5. We have no knowledge that the execution, delivery and performance
by the Purchasers of the Agreement will require the consent or approval
of, or filing with, any person or governmental entity; PROVIDED, HOWEVER,
that we express no opinion with respect
Xxxxxxx Partners, L.P. et al
May 9, 1997
Page 4 of 6
to any filing requirements under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
This opinion is further limited and qualified in all respects as follows:
A. This opinion is specifically limited to matters of the existing
federal law of the United States of America and the law of the State of
Texas. We express no opinion as to the applicability of the laws of any
other particular jurisdiction to the Transaction described in this
opinion.
B. For purposes of expressing the opinions in paragraph 1 regarding
the existence of the Purchasers, we have relied, with your permission,
solely upon certificates of the Secretary of State of the State of Texas,
without independent investigation.
C. The opinions herein are subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
laws affecting the rights and remedies of creditors generally. This
exception includes (a) the Federal Bankruptcy Code and thus comprehends,
among others, matters of turn-over, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge, conversion of a non-recourse
obligation into a recourse claim, limitations on IPSO FACTO and
anti-assignment clauses and the coverage of pre-petition security
agreements applicable to property acquired after a petition is filed;
(b) all other Federal and state bankruptcy, insolvency, reorganization,
receivership, moratorium, arrangement and assignment for the benefit of
creditors laws that affect the rights and remedies of creditors generally
(not just creditors of specific types of debtors); (c) all other Federal
bankruptcy, insolvency, reorganization, receivership, moratorium,
arrangement and assignment for the benefit of creditors laws that have
reference to or affect generally only creditors of specific types of
debtors and state laws of like character affecting generally only
creditors of financial institutions and insurance companies; (d) state
fraudulent transfer and conveyance laws; and (e) judicially developed
doctrines relevant to any of the foregoing laws, such as substantive
consolidation of entities.
D. The opinions expressed herein are subject to the effect of general
principles of equity, whether applied by a court of law or equity. This
limitation includes principles (a) governing the availability of specific
performance, injunctive relief or other equitable remedies, which
generally place the award of such remedies, subject to certain guidelines,
in the discretion of the court to which application for such relief is
made; (b) affording equitable defenses (e.g. waiver, laches and estoppel)
against a party seeking enforcement; (c) requiring good faith and fair
dealing in the performance and enforcement of a contract by the party
seeking its enforcement; (d) requiring reasonableness in the performance
and enforcement of any agreement by the party seeking enforcement of the
contract; (e) requiring consideration of the materiality of (i) any breach
by the Purchasers or (ii) the consequences of the breach to the party
seeking enforcement; (f) requiring consideration of the impracticability
or impossibility of performance at the time of attempted
Xxxxxxx Partners, L.P. et al
May 9, 1997
Page 5 of 6
enforcement; and (g) affording defenses based upon the
unconscionability of the enforcing party's conduct after the parties have
entered into the contract.
F. This opinion is subject to the effect of generally applicable rules
of law of the State of Texas and of the United States of America that
(a) limit or affect the enforcement of provisions of a contract that
purport to require waiver of the obligations of good faith, fair dealing,
diligence and reasonableness; (b) provide that forum selection clauses in
contracts are not necessarily binding on the court(s) in the forum
selected; (c) limit the availability of a remedy under certain
circumstances in which another remedy has been elected; (d) limit the
right of a creditor to use force or cause a breach of the peace in
enforcing rights; (e) relate to the sale or disposition of collateral or
the requirements of a commercially reasonable sale; (f) limit the
enforceability of provisions releasing, exculpating or exempting a party
from, or requiring indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct; (g) may,
if less than all of a contract is deemed unenforceable, limit the
enforceability of the balance of the contract to circumstances in which
the unenforceable portion is not an essential part of the agreed exchange;
(h) govern and afford judicial discretion regarding the determination of
damages and entitlement to attorneys' fees and other costs; and (i) may
permit a party who has materially failed to render or offer performance
required by the contract to cure that failure unless (I) permitting a cure
would unreasonably hinder the aggrieved party from making substitute
arrangements for performance, or (II) it was important in the
circumstances to the aggrieved party that performance occur by the date
stated in the contract.
G. This opinion does not address any of the following legal
issues unless we have explicitly addressed the specific legal issue
herein: (a) Federal securities laws and regulations administered by the
Securities and Exchange Commission, state "Blue Sky" laws and
regulations, and laws and regulations relating to commodity (and other)
futures and indices and other similar instruments; (b) Federal Reserve
Board margin regulations; (c) pension and employee benefit laws and
regulations; (d) Federal and state antitrust and unfair competition laws
and regulations; (e) Federal and state laws and regulations concerning
filing and notice requirements, other than requirements applicable to
charter-related documents; (f) compliance with fiduciary duty
requirements; (g) statutes and ordinances, the administrative decisions,
and the rules and regulations of counties, towns, municipalities and
special political subdivisions and judicial decisions to the extent that
they deal with any of the foregoing; (h) the characterization of a
Transaction as one involving the creation of a lien on real property or
a security interest in personal property, the characterization of a
contract as one in a form sufficient to create a lien or a security
interest, and the creation, attachment, perfection, priority or
enforcement of a lien on real property or a security interest in
personal property; (i) fraudulent transfer and fraudulent conveyance
laws; (j) Federal and state environmental laws and regulations; (k)
Federal and state land use and subdivision laws and regulations; (l)
Federal and state tax laws and regulations, including, without
limitation, the Federal Tax Lien Act of 1966, as amended; (m) Federal
patent, copyright and trademark, state trademark, and other Federal and
state
Xxxxxxx Partners, L.P. et al
May 9, 1997
Page 6 of 6
intellectual property laws and regulations; (n) Federal and state
racketeering laws and regulations; (o) Federal and state health and
safety laws and regulations; (p) Federal and state labor laws and
regulations; (q) Federal and state laws, regulations and policies
concerning (i) national and local emergency, (ii) possible judicial
deference to acts of sovereign states, and (iii) criminal and civil
forfeiture laws; or (r) other Federal and state statutes of general
application to the extent they provide for criminal prosecution.
H. We have assumed for purposes of the opinions expressed herein,
the truth and accuracy of all statements and certifications made to you
by the Purchasers or by any person on behalf of the Purchasers, and all
documents and other matters furnished to you by or on behalf of the
Purchasers, and that none of such entities or persons have made, and
that none of such documents or other matters contained or contain an
untrue statement of any material fact or omitted or omit to state a
material fact necessary in order to make such statements and
certifications, in light of the circumstances in which they were made,
not misleading.
I. As used herein, the phrases "to our knowledge," "known to us,"
or, "we have no knowledge," or any similar phrase means that the
knowledge of this firm is limited to the present personal recollection
of the attorneys in our firm who have prepared this opinion and who have
had actual involvement in the transaction that is the subject of this
opinion letter, and further you cannot rely on such attorneys having
made any independent verification of, or inquiry with respect to, the
facts relevant to this opinion letter, whether in the general course of
our representation of the Purchasers or for purposes of rendering this
opinion letter to you.
This opinion is limited to the specific opinions expressly stated
herein, and no other opinion is implied or may be inferred beyond the
specific opinions expressly stated herein.
This opinion is intended solely for your benefit. It is not to be
quoted in whole or in part, disclosed, made available to or relied upon by
any other person, firm or entity for any purpose whatsoever, without in each
instance our express prior written consent.
This opinion is based upon our knowledge of the law and our
understanding of the facts as of the date hereof. We assume no duty to
update or supplement this opinion to reflect any facts or circumstances that
may hereafter come to our attention or to reflect any changes in any law that
may hereafter occur or become effective.
Respectfully submitted,
XXXXX, XXXX & XXXXXXX
(a professional corporation)
COMPLIANCE CERTIFICATE
This certificate is delivered to Xxxxxxx Partners, L.P., Xxxxxxx
Affiliates, L.P., Xxxxxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx Revocable Trust
U/A/D 07/30/92, V. Xxxxxx Xxxxxxxxxx, Xx., and May Financial Corporation FBO
Xxxx X. Xxxxxxx XXX (collectively, the "Stockholders") by the undersigned
(individually, a "Purchaser" and collectively, the "Purchasers"), pursuant to
Section 5.2(h) of the Stock Purchase Agreement, dated as of March 27, 1997,
by and among Reliant Partners, L.P. and the Stockholders, as amended by the
First Amendment to Stock Purchase Agreement, dated as of May __, 1997, by and
among the Stockholders and the Purchasers (as so amended, the "Purchase
Agreement"), relating to the acquisition by the Purchasers of capital stock
of RBPI Holding Corporation, a Delaware corporation (the "Corporation").
Capitalized terms used herein without definition shall have the meanings as
set forth in the Purchase Agreement. The undersigned hereby certify as
follows:
1. With respect to itself or himself only, all representations and
warranties of such Purchaser contained in the Purchase Agreement are
true and correct in all material respects on and as of the date when
made and on and as of the date hereof.
2. The Purchasers have performed and complied in all material respects
with all agreements and conditions required by the Purchase Agreement
to be performed or complied with by the Purchasers on or prior to the
Closing Date.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have signed this Certificate in one
or more counterparts effective as of the ___ day of May, 1997.
RELIANT PARTNERS, L.P.
By: Group 31, Inc., General Partner
By:
-----------------------------------
Title:
--------------------------------
RELIANT PARTNERS II, L.P.
By: FW Group Genpar, Inc., General Partner
By:
-----------------------------------
Title:
--------------------------------
-----------------------------------------
XXXXX X. XXXXX
-----------------------------------------
XXXXXX X. XXXX
-----------------------------------------
XXXXXXX X. STILL
-----------------------------------------
XXXX X. XXXXXX
-----------------------------------------
XXXXX X. XXXXX, XX.
-----------------------------------------
XXXXXX XXXXXXX
