EXHIBIT 4.5
NINTH AMENDMENT TO CREDIT AGREEMENT
This Ninth Amendment to Credit Agreement dated as of February 20, 2001
(this "Amendment") to that certain Credit Agreement dated as of November 3, 1998
(as the same has been and may be amended, restated or modified from time to
time, the "Credit Agreement") among X.X. Xxxxxx Holdings, Inc., a Delaware
corporation (the "Borrower"), the Required Lenders party to the Credit
Agreement, and Bank of America, N.A., formerly known as NationsBank, N.A.,
individually as a Lender, and as Agent for itself and the other Lenders.
RECITALS
1. The Borrower, the Agent and the Required Lenders now desire to amend
the Credit Agreement to (a) decrease the aggregate amount of the Commitments
from One Hundred Million Dollars ($100,000,000) to Sixty-Two Million Five
Hundred Thousand Dollars ($62,500,000), (b) modify certain financial covenants,
and (c) make such other modifications, in each case as hereinafter more
specifically provided.
2. The Agent and the Required Lenders are willing to make such
amendment on the terms and subject to the conditions and to the extent set forth
below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
Section 1.1 Definitions. All capitalized terms not otherwise defined
herein shall have the same meanings as in the Credit Agreement, as amended
hereby.
ARTICLE II
Amendments
Section 2.1 Amendments to Section 1.1. Effective as of the date hereof,
the following definitions in Section 1.1 of the Credit Agreement are hereby
amended and restated to read as follows:
"Commitment" means, as to each Lender, the obligation of such
Lender to make advances of funds and purchase participation interests
in (or with respect to the Agent as a Lender, hold other interests in)
Letters of Credit in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount set forth opposite the
name of such Lender on Schedule 1.1(a) attached hereto, as the same may
be reduced or terminated pursuant to Section 2.5 or 11.2 or, if such
Lender was not an original signatory to this Agreement, in such
Lender's Assignment and Acceptance. As of
February 20, 2001, the aggregate amount of the Commitments of all
Lenders equals Sixty-Two Million Five Hundred Thousand Dollars
($62,500,000).
"EBITDA" means for any period and any Person, the total of the
following, each calculated without duplication for such Person on a
consolidated basis for such period: (a) Net Income; plus (b) any
provision for (or less any benefit from) income or franchise taxes
included in determining Net Income; plus (c) Net Interest Expense
deducted in determining Net Income; plus (d) amortization and
depreciation expense deducted in determining Net Income; plus (e)
minority interests; plus (f) any provision for any non-cash charges (or
less any benefit from any non-cash gains) included in determining Net
Income.
"Maximum Rate" means, at any time and with respect to any
Lender, the maximum rate of nonusurious interest under applicable law
that such Lender may charge the Borrower. The Maximum Rate shall be
calculated in a manner that takes into account any and all fees,
payments, and other charges contracted for, charged or received in
connection with the Loan Documents that constitute interest under
applicable law. Each change in any interest rate provided for herein
based upon the Maximum Rate resulting from a change in the Maximum Rate
shall take effect without notice to the Borrower at the time of such
change in the Maximum Rate. For purposes of determining the Maximum
Rate under Texas law, the applicable weekly ceiling shall be the weekly
ceiling described in, and computed in accordance with, Chapter 303 of
the Texas Finance Code, as amended.
Section 2.2 Addition to Section 1.1. Effective as of the date hereof,
the following definitions are hereby added to Section 1.1 of the Credit
Agreement in alphabetical order to read as follows:
"Adjusted EBITDA" means the sum of (a) EBITDA of the Borrower
on a consolidated basis for the Fiscal Quarter then ended, minus (b)
the amount of EBITDA of the Borrower on a consolidated basis derived
from all Foreign Companies in excess of 15% of the EBITDA of the
Borrower on a consolidated basis for the Fiscal Quarter then ended.
"Net Proceeds" from any issuance, sale or disposition of any
debt or any shares of equity securities (or any securities convertible
or exchangeable for any such shares, or any rights, warrants, or
options to subscribe for or purchase any such shares) means the amount
equal to (a) the aggregate gross proceeds of such issuance, sale or
other disposition, less (b) the following: (i) placement agent fees,
(ii) underwriting discounts and commissions, (iii) bank and other
lender fees, and (iv) reasonable legal fees and other reasonable
expenses payable by the issuer in connection with such issuance, sale
or other disposition. "Net Proceeds" from any disposition of assets
means the amount equal to (a) the aggregate gross proceeds of such
disposition, less (b) the following: (i) sales or other similar taxes
paid or payable by the seller in connection with such disposition, (ii)
reasonable broker fees in connection with such disposition, (iii)
reasonable legal fees and other reasonable expenses payable by the
seller in connection with such disposition and
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(iv) the amount of any Debt secured by the assets that must be repaid
in connection with such disposition so long as it is a Debt permitted
under this Agreement.
Section 2.3 Amendment to Section 2.5. Effective as of the date hereof,
Section 2.5 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 2.5 Reduction or Termination of Commitments.
(a) The Borrower shall have the right to terminate or
reduce in part the unused portion of the Commitments at any
time and from time to time, provided that: (i) the Borrower
shall give notice of each such termination or reduction as
provided in Section 4.3; (ii) each partial reduction shall be
in an aggregate amount at least equal to Two Million Dollars
($2,000,000); and (iii) the Commitments may not be reduced to
an amount less than the Letter of Credit Liabilities then
outstanding. The Commitments may not be reinstated after they
have been terminated or reduced.
(b) Notwithstanding anything to the contrary
contained in this Agreement, the Commitments shall
automatically reduce by the following aggregate amounts on the
following dates:
========================= ===================================
Date Commitment Reduction Amount
========================= ===================================
March 31, 2001 $2,500,000
------------------------- -----------------------------------
June 30, 2001 $5,000,000
------------------------- -----------------------------------
September 30, 2001 $5,000,000
========================= ===================================
In addition, on the date of such Commitment reduction, the
Borrower shall prepay first the unreimbursed drawings under
the Letters of Credit and then the outstanding Loans by the
amount by which the Outstanding Revolving Credit exceeds the
Commitments (after giving effect to such reduction) plus
accrued and unpaid interest on the principal amount so
prepaid. If no Loans or unreimbursed drawings under the
Letters of Credit are outstanding, the Borrower shall
immediately pledge to the Agent as security for the
Obligations an amount in immediately available funds equal to
such excess, such funds to be held in a cash collateral
account at the Agent without any right of withdrawal by the
Borrower.
(c) Upon receipt by the Borrower or any of its
Subsidiaries of the Net Proceeds of the Disposition of assets
of the Borrower or its Subsidiaries (the "Asset Sale
Proceeds"), the Commitments shall automatically reduce by an
amount equal to one hundred percent (100%) of the Asset Sale
Proceeds. In addition, on the date of such Commitment
reduction, the Borrower shall prepay first the unreimbursed
drawings under the Letters of Credit and then the outstanding
Loans by the amount by which the Outstanding Revolving Credit
exceeds the Commitments (after giving effect to such
reduction), plus accrued and unpaid interest on the principal
amounts so prepaid. If no Loans or unreimbursed drawings under
the Letters of Credit are outstanding, the Borrower shall
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immediately pledge to the Agent as security for the
Obligations an amount in immediately available funds equal to
such excess, such funds to be held in a cash collateral
account at the Agent without any right of withdrawal by the
Borrower.
(d) In addition to the $5,000,000 Commitment
reduction required by Section 2.5(b) hereinabove for September
30, 2001, in the event that the amount of Commitment reduction
resulting from Asset Sale Proceeds during the period beginning
February 20, 2001 through and including September 30, 2001
(such amount hereinafter called "Actual Reduction Amount") is
less than Ten Million Dollars ($10,000,000), then on September
30, 2001 the Commitments shall automatically reduce by an
amount equal to (1) Ten Million Dollars ($10,000,000) minus
(2) the Actual Reduction Amount. In addition, on the date of
such Commitment reduction, the Borrower shall prepay first the
unreimbursed drawings under the Letters of Credit and then the
outstanding Loans by the amount by which the Outstanding
Revolving Credit exceeds the Commitments (after giving effect
to such reduction), plus accrued and unpaid interest on the
principal amount so prepaid. If no Loans or unreimbursed
drawings under the Letters of Credit are outstanding, the
Borrower shall immediately pledge to the Agent as security for
the Obligations an amount in immediately available funds equal
to such excess, such funds to be held in a cash collateral
account at the Agent without any right of withdrawal by the
Borrower.
(e) Upon the issuance, sale or other disposition of
debt or any shares of equity securities (or any securities
convertible or exchangeable for any such shares, or any
rights, warrants, or options to subscribe for or purchase any
such shares), by the Borrower or any Subsidiary, the
Commitments shall automatically reduce by an amount equal to
100% of the Net Proceeds of any such issuance. In addition, on
the date of such Commitment reduction, the Borrower shall
prepay first the unreimbursed drawings under the Letters of
Credit and then the outstanding Loans by the amount by which
the Outstanding Revolving Credit exceeds the Commitments
(after giving effect to such reduction) plus accrued and
unpaid interest on the principal amount so prepaid. If no
Loans or unreimbursed drawings under the Letters of Credit are
outstanding, the Borrower shall immediately pledge to the
Agent as security for the Obligations an amount in immediately
available funds equal to such excess, such funds to be held in
a cash collateral account at the Agent without any right of
withdrawal by the Borrower.
Section 2.4 Amendment to Section 2.6. Effective as of the date hereof,
Section 2.6 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 2.6 [Intentionally Deleted]
Section 2.5 Amendment to Section 2.8. Effective as of the date hereof,
Section 2.8 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 2.8 [Intentionally Deleted]
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Section 2.6 Amendment to Section 3.2. Effective as of the date hereof,
Section 3.2 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 3.2 Determinations of Applicable Margin and Revolving
Commitment Fee.
(a) The phrase "Applicable Margin" shall mean, for
any day, (i) the margin of interest over the Adjusted
Eurodollar Rate or Base Rate, as the case may be, that is
applicable when any interest rate is determined under this
Agreement, or (ii) the per annum percentage rate that is
applicable when any Revolving Commitment Fee is determined
under this Agreement. The Applicable Margin is subject to
adjustment (upward or downwards, as appropriate) based upon
the Commitments. Effective as of each Adjustment Date, the
Applicable Margin for each Type of Loan or Revolving
Commitment Fee (herein the "Revolving Commitment Fee
Applicable Margin"), as applicable, shall be adjusted to
reflect the Applicable Margin prescribed below for the
Commitments:
========= =========================== ============= ============ ============
Revolving
Commitment
Eurodollar Base Rate Fee
Aggregate of all Applicable Applicable Applicable
Level Commitments Rate Margin Margin Margin
========= =========================== ============= ============ ============
I Greater than or equal to 2.25% 0.25% 0.50%
$50,000,000
--------- --------------------------- ------------- ------------ ------------
II Less than $50,000,000 but 1.75% 0% 0.50%
greater than or equal to
$40,000,000
--------- --------------------------- ------------- ------------ ------------
Less than $40,000,000 but 1.25% 0% 0.50%
greater than or equal to
III $35,000,000
--------- --------------------------- ------------- ------------ ------------
IV Less than $35,000,000 1.25% 0% 0.375%
========= =========================== ============= ============ ============
(b) Upon the occurrence of a Commitment reduction in
accordance with this Agreement, the Applicable Margin shall
automatically be adjusted in accordance with the aggregate
Commitments set forth therein and the table set forth in
Section 3.2(a), such automatic reduction to take effect as of
the first Business Day after the such Commitment reduction
(each such Business Day when such margins or fees change
pursuant to this sentence or the next following sentence,
herein an "Adjustment Date"). Subject to Section 3.4, if the
Borrower fails to make any necessary prepayments in connection
with such Commitment reduction, the Applicable Margin shall
automatically be adjusted to the highest Applicable Rate
provided in the table set forth in Section 3.2(a), such
automatic adjustments to take effect as of the first Business
Day after the day the Borrower was required to make such
prepayment in accordance with Section 2.5 and to remain in
effect until subsequently adjusted in accordance herewith upon
payment by the Borrower of the required prepayment amount.
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Section 2.7 Amendment to Section 4.2. Effective as of the date hereof,
Section 4.2 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 4.2 Minimum Amounts. Except for prepayments made
pursuant to Section 2.5(c), 2.5(d), 2.5(e), 4.4(b) and Article 5, each
borrowing under a Revolving Loan constituting a Base Rate Loan and each
prepayment of Revolving Loans constituting Base Rate Loans shall be in
an amount at least equal to Three Hundred Thousand Dollars ($300,000)
or any larger amount in increments of One Hundred Thousand Dollars
($100,000). Except for Conversions pursuant to Article 5, each
Eurodollar Loan shall be in a minimum principal amount of Five Million
Dollars ($5,000,000) or any larger amount in increments of One Million
Dollars ($1,000,000).
Section 2.8 Amendment to Section 4.4. Effective as of the date hereof,
Section 4.4 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 4.4 Prepayments.
(a) Subject to Section 4.2 and the provisions of this Section
4.4, the Borrower may, at any time and from time to time without
premium or penalty upon prior notice to the Agent as specified in
Section 4.3, prepay or repay any Loan in full or in part. Eurodollar
Loans may be prepaid or repaid only on the last day of the Interest
Period applicable thereto unless the Borrower pays to the Agent for the
account of the applicable Lenders any amounts due under Section 5.5 as
a result of such prepayment or repayment.
(b) If at any time the Outstanding Revolving Credit exceeds
the aggregate Commitments, the Borrower shall immediately prepay first
the unreimbursed drawings under the Letters of Credit and then the
outstanding Loans by the amount of such excess or, if no Loans or
unreimbursed drawings under the Letters of Credit are outstanding, the
Borrower shall immediately pledge to the Agent as security for the
Obligations an amount in immediately available funds equal to such
excess, such funds to be held in a cash collateral account at the Agent
without any right of withdrawal by the Borrower.
Section 2.9 Addition to Section 8.1. Effective as of the date hereof, a
new subsection (l) is hereby added to Section 8.1 of the Credit Agreement to
read as follows:
(l) Monthly Financial Statements. As soon as available, and in
any event within thirty (30) days after the end of each calendar month
(i) a copy of an unaudited consolidated financial statement of the
Borrower and the Subsidiaries as of the end of such period and for the
portion of the Fiscal Year then ended containing balance sheets and
statements of income, retained earnings, and cash flow, in each case
setting forth in comparative form the figures for the corresponding
period of the preceding Fiscal Year, all in reasonable detail certified
by the chief financial officer, treasurer or assistant treasurer of the
Borrower to have been prepared in accordance with GAAP and to fairly
present (subject to year-end audit adjustments) the financial condition
and results of operations of the Borrower and the Subsidiaries at the
date and for the periods indicated therein and (ii) a copy of the
Consolidating Schedules as of the end of such period and for
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the portion of the Fiscal Year then ended, in each case setting forth
in comparative form the figures for the corresponding period of the
preceding Fiscal Year, all in reasonable detail certified by the chief
financial officer, treasurer or assistant treasurer of the Borrower to
fairly present the financial condition and results of operations of the
Borrower and the Subsidiaries at the date and for the periods indicated
therein.
Section 2.10 Amendment to Section 9.1. Effective as of the date hereof,
subsections (b), (d), (e) and (i) of Section 9.1 of the Credit Agreement are
hereby amended and restated to read as follows:
(b) Debt previously incurred and outstanding as of February
20, 2001 as more specifically described on Schedule 9.1(b) hereto and
any extensions, renewals or refinances thereof so long as (i) the
principal amount of such Debt and the formula for determining the
interest rate charged thereon after such renewal, extension or
refinancing shall not exceed the principal amount of such Debt which
was outstanding and the formula for determining the interest rate which
was in effect immediately prior to such renewal, extension or
refinancing and (ii) such Debt shall not be secured by any assets other
than assets securing such Debt, if any, prior to such renewal,
extension or refinancing;
. . .
(d) Debt (including Capital Lease Obligations but excluding
Debt described in Section 9.1(e)) secured by purchase money Liens
permitted by Section 9.2 previously incurred and outstanding as of
February 20, 2001 as more specifically described in Schedule 9.1(d)
hereto;
(e) [Intentionally Deleted]
. . .
(i) Debt in addition to that specifically described in clauses
(a) through (h) of this Section 9.1 previously incurred and outstanding
as of February 20, 2001 as more specifically described on Schedule
9.1(i) hereto.
Section 2.11 Amendment to Section 9.2. Effective as of the date hereof,
subsections (a) and (l) of Section 9.2 of the Credit Agreement are hereby
amended and restated to read as follows:
(a) Liens previously granted and outstanding as of February
20, 2001 as more specifically described on Schedule 9.2 hereto;
. . .
(l) [Intentionally Deleted]
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Section 2.12 Amendment to Section 9.3. Effective as of the date hereof,
subsection (v) of Section 9.3 of the Credit Agreement is hereby amended and
restated to read as follows:
(v) [Intentionally Deleted.]
Section 2.13 Amendment to Section 9.4. Effective as of the date hereof,
Section 9.4 of the Credit Agreement is hereby amended and restated to read as
follows:
Section 9.4. Restricted Junior Payments. Borrower will not
directly or indirectly declare, order, pay, make or set apart any sum
for (a) any dividend or other distribution, direct or indirect, on
account of any shares of any class of stock or other equity interest of
Borrower now or hereafter outstanding; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any
class of stock or other equity interest of Borrower now or hereafter
outstanding; or (c) any payment made to retire or to obtain the
surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock or other equity interest of
Borrower now or hereafter outstanding.
Section 2.14 Amendment to Section 9.5. Effective as of the date hereof,
subsections (c), (e) and (f) of Section 9.5 of the Credit Agreement are hereby
amended and restated to read as follows:
(c) Strategic Investments previously made and existing as of
February 20, 2001 as more specifically described on Schedule 9.5(c);
. . .
(e) capital contributions to, investments or acquisitions of
any stock or other securities of, any Subsidiary ("Permitted
Contributions") and Permitted Acquisitions each as previously made and
existing as of February 20, 2001 as more specifically described on
Schedule 9.5(e);
(f) acquisitions of all the equity or other comparable
interests issued by a Person or the acquisition of all or substantially
all of such Person's assets (together with all the equity or other
comparable interests issued by a Person herein an "Approved
Acquisition") other than a Permitted Acquisition, previously made and
existing as of February 20, 2001 as more specifically described on
Schedule 9.5(f).
Section 2.15 Amendment to Section 9.8. Effective as of the date hereof,
Section 9.8 of the Credit Agreement is hereby amended by adding the following
sentence to the end of such section:
Notwithstanding anything to the contrary contained herein, the Borrower
will not, and will not permit any Subsidiary to, make any Disposition
of any of its assets if (i) the net sale proceeds of such Disposition
are greater than Ten Million Dollars ($10,000,000) or (ii) the Borrower
is to receive any non-cash consideration in connection with such
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Disposition; in each case of clauses (i) and (ii) hereof, unless the
Borrower has obtained prior written approval of the Required Lenders to
such Disposition.
Section 2.16 Amendment to Section 10.1. Effective as of the date
hereof, Section 10.1 of the Credit Agreement is hereby amended and restated to
read as follows:
Section 10.1 Net Worth. Beginning as of the Fiscal Quarter
ending December 31, 2000, the Borrower will at all times maintain a Net
Worth in an amount not less than One Hundred Twenty-Eight Million
Dollars ($128,000,000), and for each Fiscal Quarter thereafter, not
less than the sum of (i) the minimum Net Worth required for the prior
Fiscal Quarter then ended, plus (ii) 75% of the Borrower's Net Income
for the prior Fiscal Quarter then ended, plus (iii) 75% of the net
proceeds of any equity issuances by the Borrower for the prior Fiscal
Quarter then ended. If Net Income for a Fiscal Quarter is negative, no
adjustment to the requisite level of Net Worth shall be made.
Section 2.17 Amendment to Section 10.2. Effective as of the date
hereof, Section 10.2 of the Credit Agreement is hereby amended and restated to
read as follows:
Section 10.2 Adjusted EBITDA. The Borrower will at all times
maintain an Adjusted EBITDA of not less than the following for the
indicated Fiscal Quarter:
=========================================== ===========================
Period Minimum Adjusted EBITDA
=========================================== ===========================
Fiscal Quarter ending March 31, 2001 $4,500,000
------------------------------------------- ---------------------------
Fiscal Quarter ending June 30, 2001 $5,000,000
------------------------------------------- ---------------------------
Fiscal Quarter ending September 30, 2001 $10,000,000
and each Fiscal Quarter thereafter
=========================================== ===========================
Section 2.18 Amendment to Section 10.3. Effective as of the date
hereof, Section 10.3 of the Credit Agreement is hereby amended and restated to
read as follows:
Section 10.3 Capital Expenditures. The Borrower will not
permit the aggregate amount of Capital Expenditures of the Borrower and
its Subsidiaries to exceed $1,250,000 during any Fiscal Quarter.
Section 2.19 Addition of Schedule 1.1(a). Effective as of the date
hereof, all references in the Credit Agreement to "Schedule 1.1(a)" are deemed
to refer to the "Schedule 1.1(a)" attached hereto as Schedule 1.1(a).
Section 2.20 Amendment to Schedule 9.1(b). Effective as of the date
hereof, all references to "Schedule 9.1(b)" in the Credit Agreement are deemed
to refer to the "Schedule 9.1(b)" attached hereto as Schedule 9.1(b).
Section 2.21 Addition of Schedule 9.1(d). Effective as of the date
hereof, all references in the Credit Agreement to "Schedule 9.1(d)" are deemed
to refer to the "Schedule 9.1(d)" attached hereto as Schedule 9.1(d).
9
Section 2.22 Addition of Schedule 9.1(i). Effective as of the date
hereof, all references in the Credit Agreement to "Schedule 9.1(i)" are deemed
to refer to the "Schedule 9.1(i)" attached hereto as Schedule 9.1(i).
Section 2.23 Amendment to Schedule 9.2. Effective as of the date
hereof, all references in the Credit Agreement to "Schedule 9.2" are deemed to
refer to the "Schedule 9.2" attached hereto as Schedule 9.2.
Section 2.24 Addition of Schedule 9.5(c). Effective as of the date
hereof, all references to "Schedule 9.5(c)" in the Credit Agreement are deemed
to refer to the "Schedule 9.5(c)" attached hereto as Schedule 9.5(c).
Section 2.25 Addition of Schedule 9.5(e). Effective as of the date
hereof, all references to "Schedule 9.5(e)" in the Credit Agreement are deemed
to refer to the "Schedule 9.5(e)" attached hereto as Schedule 9.5(e).
Section 2.26 Addition of Schedule 9.5(f). Effective as of the date
hereof, all references to "Schedule 9.5(f)" in the Credit Agreement are deemed
to refer to the "Schedule 9.5(f)" attached hereto as Schedule 9.5(f).
Section 2.27 Termination of Commitment to Issue Letters of Credit. As
of the date hereof, the Agent has outstanding one Letter of Credit issued under
the Credit Agreement (the "Existing Letter of Credit"). The Existing Letter of
Credit shall remain outstanding in accordance with the terms and provisions of
the Credit Agreement, such Letter of Credit and related documents. Effective as
of the date hereof, the Agent's obligation to issue Letters of Credit under the
Credit Agreement or any other Loan Document is hereby terminated.
Section 2.28 Termination of Swingline Commitment. The Swingline
Lender's obligation to make any Swingline Loans under the Credit Agreement or
any other Loan Document is hereby terminated.
Section 2.29 Consent to Joint Ventures. By execution of this Amendment,
the Agent and the Required Lenders consent to the formation of the joint
ventures more specifically described on Annex A attached hereto.
ARTICLE III
Conditions Precedent
Section 3.1 Condition. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) The Agent shall have received all of the following, each
dated (unless otherwise indicated) the date of this Amendment, in form
and substance satisfactory to the Agent:
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(i) This Amendment executed by the Borrower, the
Agent and the Lenders and consented to by the Significant
Subsidiaries;
(ii) Resolutions of the Board of Directors of each of
the Borrower and the Significant Subsidiaries certified by its
respective secretary or assistant secretary which authorizes
the execution, delivery and performance by such Person of this
Amendment and the other Loan Documents executed in connection
herewith;
(iii) A certificate of incumbency certified by the
secretary or the assistant secretary of each of the Borrower
and the Significant Subsidiaries certifying the names of the
officers thereof authorized to sign this Amendment and the
other Loan Documents together with specimen signatures of such
officers;
(iv) The certificate or articles of incorporation of
each of Xxxxxxx Xxxxxx (USA) Inc., International Accident
Facilities, Inc., X.X. Xxxxxx GP, Inc., X.X. Xxxxxx DL, L.L.C.
and XX Xxxxxx, Incorporated (collectively the "New Corporate
Guarantors") certified by the Secretary of State of the state
of such Person's incorporation and dated a current date;
(v) The certificate of limited partnership of Blanch,
L.P. (the "New Partnership Guarantor") certified by the
Secretary of State of the state of such Person's organization
and dated a current date;
(vi) The bylaws of each of the New Corporate
Guarantors certified by its respective secretary or assistant
secretary;
(vii) The agreement of limited partnership of the New
Partnership Guarantor certified by the secretary or assistant
secretary of the general partner of the New Partnership
Guarantor;
(viii) A bring down certificate of the secretary or
assistant secretary of the Significant Subsidiaries (other
than the New Corporate Guarantors and the New Partnership
Guarantor) certifying that the certificate or articles of
incorporation and bylaws have not been modified in any respect
from the copies thereof previously provided to the Agent and
the Lenders in connection with the Credit Agreement;
(ix) Certificates of the appropriate government
officials of the state of incorporation of each of the
Borrower and the Significant Subsidiaries as to the existence
and good standing of such Persons, all dated a current date;
and
(x) Such additional approvals, opinions, or documents
as the Agent may reasonably request.
(b) No Default. Other than the Specified Defaults (as defined
in Article IV), no Default shall have occurred and be continuing.
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(c) Representations. Other than the existence of the Specified
Defaults, all of the representations and warranties contained in
Article 7 of the Credit Agreement, as amended hereby, and in the other
Loan Documents shall be true and correct in all material respects on
and as of the date hereof with the same force and effect as if such
representations and warranties had been made on and as of such date.
(d) Fee. The Borrower shall have paid to the Agent for the pro
rata account of the Required Lenders who execute and deliver this
Amendment (the "Executing Lenders") an amendment fee of an amount equal
to 0.75% of the aggregate Commitments of the Executing Lenders as
reduced by this Amendment.
ARTICLE IV
Limited Waiver
The Borrower has informed the Agent and the Lenders that certain Events
of Default have occurred under the Credit Agreement solely by reason of the
Borrower's failure to comply with (a) Section 9.4(a) of the Credit Agreement
resulting from the Borrower's declaration of a cash dividend of $0.14 per share
payable March 1, 2001 to shareholders of record as of February 8, 2001 (the
"Dividend") and (b) Sections 10.1, 10.2 and 10.3 of the Credit Agreement for the
Fiscal Quarter ending December 31, 2000 (collectively the "Specified Defaults").
By execution of this Amendment, the Agent and the Lenders hereby waive the
Specified Defaults and consent to the Borrower paying the Dividend. Except as
otherwise specifically provided for in this Article IV, nothing contained herein
shall be construed as a waiver by the Agent and the Lenders of any covenant or
provision of the Credit Agreement, the other Loan Documents, this Amendment, or
of any other contract or instrument among the Borrower, the Agent and the
Lenders, and the failure of the Agent or any Lender at any time or times
hereafter to require strict compliance by the Borrower of any provision thereof
shall not waive, affect or diminish any right of the Agent and the Lenders to
thereafter demand strict compliance therewith. The Agent and the Lenders hereby
reserve all rights granted under the Credit Agreement, the other Loan Documents,
this Amendment and any other contract or instrument among the Borrower, the
Agent and the Lenders.
ARTICLE V
Ratifications, Representations and Warranties
Section 5.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of the Credit Agreement are ratified
and confirmed and shall continue in full force and effect. Borrower and Agent
agree that the Credit Agreement as amended hereby shall continue to be legal,
valid, binding and enforceable in accordance with its terms.
12
Section 5.2 Representations and Warranties. Borrower hereby represents
and warrants to Agent that (i) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the certificate of incorporation or
bylaws of Borrower, (ii) except for the Specified Defaults, the representations
and warranties contained in the Credit Agreement, and any other Loan Document
are true and correct on and as of the date hereof as though made on and as of
the date hereof (except for such representations and warranties as are limited
by their express terms to a specific date), (iii) except for the Specified
Defaults, no Default has occurred and is continuing, (iv) Borrower is in full
compliance with all covenants and agreements contained in the Credit Agreement
as amended hereby and (v) each of the Borrower and the Subsidiaries is qualified
to do business in all jurisdictions in which the nature of its business makes
such qualifications necessary and where failure to do qualify could reasonably
be expected to have a Material Adverse Effect.
ARTICLE VI
Miscellaneous
Section 6.1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Lenders or Agent or any closing shall affect
the representations and warranties or the right of Lenders or Agent to rely upon
them.
Section 6.2 Reference to Credit Agreement. Each of the Loan Documents,
including the Credit Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
Section 6.3 Expenses of Agent. As provided in the Credit Agreement,
Borrower agrees to pay on demand all costs and expenses incurred by Agent in
connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including without limitation
the reasonable costs and fees of Agent's legal counsel, and all costs and
expenses incurred by Agent in connection with the enforcement or preservation of
any rights under the Credit Agreement or any other Loan Document, including
without limitation the reasonable costs and fees of Agent's legal counsel.
Section 6.4 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
13
Section 6.5 Applicable Law. This Amendment and all other Loan Documents
(except for the Guaranty executed by X.X. Xxxxxx DL, L.L.C.) executed pursuant
hereto shall be governed by and construed in accordance with the laws of the
State of Texas and the applicable laws of the United States of America. The
Guaranty executed by X.X. Xxxxxx DL, L.L.C. shall be governed by and construed
in accordance with the laws of the State of North Carolina and the applicable
laws of the United States of America.
Section 6.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Lenders, Agent and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Lenders
and Agent.
Section 6.7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument. Counterparts transmitted via facsimile shall be effective as
originals.
Section 6.8 Headings. The headings, captions, and arrangements use in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 6.9 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
[Remainder of Page Intentionally Left Blank]
14
Executed as of the date first written above.
BORROWER:
X.X. XXXXXX HOLDINGS, INC.
By:
-------------------------------------
Xxxxx Xxxxxxxxxx
Senior Vice President and
Chief Financial Officer
15
AGENT AND LENDERS:
BANK OF AMERICA, N.A.,
formerly known as NationsBank, N.A.,
as the Agent and as a Lender
By:
-------------------------------------
D. Xxxxx Xxxxxxxx
Principal
16
XXXXX FARGO BANK, NATIONAL
ASSOCIATION (formerly known as Norwest
Bank Minnesota, N.A.), as a Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
17
BANK ONE, NA (formerly known as First
National Bank of Chicago), as a Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
18
FLEET NATIONAL BANK, as a Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
19
The Significant Subsidiaries hereby consent and agree to this Amendment
and agree that each of their respective Guaranties and other Loan Documents
shall remain in full force and in effect and shall continue to (a) guarantee the
Obligations and (b) be the legal, valid and binding obligation of the
Significant Subsidiaries enforceable against the Significant Subsidiaries in
accordance with their respective terms.
BLANCH AIRCRAFT HOLDINGS CORP.
BLANCH CATASTROPHE SERVICES, INC.
X.X. XXXXXX CAPITAL RISK SOLUTIONS, INC.
X.X. XXXXXX CO., INC.
X.X. XXXXXX INSURANCE SERVICES, INC.
X.X. XXXXXX INTERNATIONAL, INC.
K2 TECHNOLOGIES, INC.
PARAGON REINSURANCE RISK MANAGEMENT
SERVICES, INC.
UNISURE, INC.
XXXXXXX XXXXXX (USA) INC.
INTERNATIONAL ACCIDENT FACILITIES, INC.
XX XXXXXX, INCORPORATED
X.X. XXXXXX GP, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Treasurer
X.X. XXXXXX CAPITAL MARKETS, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Assistant Treasurer
X.X. XXXXXX DL, L.L.C.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
20
XXXXXX X.X.
By: X.X. Xxxxxx GP, Inc., General Partner
By:
---------------------------------
Xxxxx Xxxxxxxxxx
Treasurer
21
SCHEDULE 1.1(a)
COMMITMENTS
Lender: Commitment:
------ ----------
Bank of America, N.A. $25,000,000
Xxxxx Fargo Bank, National Association $15,625,000
Bank One, NA $9,375,000
Fleet National Bank $12,500,000
===========
Total $62,500,000
SCHEDULE 9.1(b)
EXISTING DEBT
None
SCHEDULE 9.1(d)
PURCHASE MONEY DEBT
X.X. XXXXXX HOLDINGS, INC.
Schedule 9.1.d
Funded Debt
Balance Outstanding
----------------------------
As of As of
Dec. 31, 2000 Feb. 15, 2001
----------------------------
1) Domestic Line of Credit $60,600,000 $55,500,000
2) Letter of Credit 0 0
Chilean Mortgage Obligation 1,205,129 1,205,129
Foreign Minority Loan Notes 1,014,467 1,014,467
United Kingdom Leases 399,298 399,298
UniSure Lease 214,732 214,732
Xerox Lease 33,859 33,859
3) United Kingdom Overdraft Facility 0 0
4) Hong Kong Overdraft Facility 0 0
5) Hong Kong Overdraft Facility 0 0
---------------------------
Total Funded Debt $63,467,485 $58,367,485
===========================
Available Borrowings
1) $7,000,000 (taking into account the reduction with the effect of
2) $833,000 this Ninth Amendment)
3) (pound)4,000,000
4) HK$7,100,000
5) HK$5,000,000
SCHEDULE 9.1(i)
OTHER DEBT
None
SCHEDULE 9.2
LIENS
None
SCHEDULE 9.5(c)
STRATEGIC INVESTMENTS
X.X. XXXXXX HOLDINGS, INC.
Schedule 9.5.c
Strategic Investments
As of February 15, 2001
Carrying Value
at December 31, 2000
--------------------
Conning Insurance Capital Ltd. Parntership III $1,920,014
I-CAT Line of Credit 2,660,706
Specialty Insurance Underwriters Line of Credit 912,065
Summit Global Note 2,400,000
Ascendant Capital Partners, L.P. 55,000
Master Protection Common stock 97,050
Summit Global Common Stock 750,000
Xxxx North America Preferred Stock 11,100,000
Wildcard Systems Preferred Stock 1,100,000
--------------
Total Strategic Investments $20,994,835
==============
There has been no material changes in the carrying value since December 31, 2000
SCHEDULE 9.5(e)
PERMITTED CONTRIBUTIONS AND PERMITTED ACQUISITIONS
X.X. XXXXXX HOLDINGS, INC.
Schedule 9.5.e
Permitted Contributions and Permitted Acquisitions
As of February 15, 2001
% Carrying Value
Ownership as of December 31, 2000
--------- -----------------------
Catex 50% $4,476,171
Xxxxxx Xxxxx Xxxxxx Ltd 33% 4,369
International Space Brokers (ISB) 46% 8,977,378
Xxxxxxx Xxxxxx Advisors Asia, LLC (RMAA) 50% 1,503,829
---------------
Total Investments in Unconsolidated Subsidiaries $14,961,747
===============
There has been no material changes in the carrying value since December 31,
2000.
SCHEDULE 9.5(f)
APPROVED ACQUISITION
1. A Delaware limited liability company will be formed by X.X. Xxxxxx
Holdings, Inc. and L&T Information Technology Limited (the "Company A") to
provide software services for the insurance sector. X.X. Xxxxxx Holdings, Inc.
will (a) own a 50% interest in Company A and (b) contribute the assets of the
development and technology group of K2 Technologies, Inc. to Company A.
2. A wholly owned subsidiary will be formed by X.X. Xxxxxx Co., Inc.
(Company B") to provide online insurance management and policy issuance as
described in that certain press release dated October 23, 2000 attached hereto
as Annex X. X.X. Xxxxxx Co., Inc. will then sell to Big Finance and Insurance
Services, Inc. d/b/a BigFNI a 67% interest in Company B.
ANNEX A
JOINT VENTURES
1. A Delaware limited liability company will be formed by X.X. Xxxxxx
Holdings, Inc. and L&T Information Technology Limited (the "Company A") to
provide software services for the insurance sector. X.X. Xxxxxx Holdings, Inc.
will (a) own a 50% interest in Company A and (b) contribute the assets of the
development and technology group of K2 Technologies, Inc. to Company A.
2. A wholly owned subsidiary will be formed by X.X. Xxxxxx Co., Inc.
(Company B") to provide online insurance management and policy issuance as
described in that certain press release dated October 23, 2000 attached hereto
as Annex X. X.X. Xxxxxx Co., Inc. will then sell to Big Finance and Insurance
Services, Inc. d/b/a BigFNI a 67% interest in Company B.
ANNEX B
PRESS RELEASE
FOR IMMEDIATE RELEASE Contact: Xxxxx Xxxxxx
October 23, 2000 (000) 000-0000
X.X. XXXXXX CO., INC. ANNOUNCES VENTURE
WITH BIG FINANCE AND INSURANCE SERVICES, INC.
Dallas, TX - X.X. Xxxxxx Co., Inc., a subsidiary of X.X. Xxxxxx Holdings, Inc.,
(NYSE: EWB) announced today a joint venture agreement with online financial and
insurance services company Big Finance and Insurance Services, Inc. d.b.a.
BigFNI.
X.X. Xxxxxx will be bringing to the joint venture technology that goes beyond
single entry multi-quoting capability. The technology that will be utilized in
the venture allows complete fulfillment of the online insurance sales cycle,
from quote to policy issue. In addition the technology can be implemented in
multiple distribution sources such as direct point of sale, agent/broker, or
call center direct sales utilizing the latest Internet and web based technology.
BigFNI utilizes its proprietary risk-analysis technology, Odyssey Engine, that
allows real-time processing of consumer applications matched against the
qualifying criteria supplied by partnering financial and insurance institutions.
X.X. Xxxxxx and BigFNI will interface to provide online insurance management and
policy issuance, while reducing risk. The joint venture will make it possible to
combine the marketing and distribution of insurance products with leading-edge
technology to manage risk, eliminate inefficiencies and take advantage of new
revenue opportunities.
"The joint venture will bring together technology and capabilities that are the
first of their kind," said Xxxxxxx Xxxxxx, Executive Vice President of X.X.
Xxxxxx Company. "We are pleased to be able to bring to our customer base this
flexible technology based solution that incorporates the management of risk that
goes well beyond many of the E-strategies for insurance that are in place
today."
"Our current technologies must address new and traditional distribution
channels, integrate into existing legacy systems and improve the ability to
capture information tailored to meet client's needs," said Xxxx Xxxxxx,
President and CEO of BigFNI. "By teaming up with X.X. Xxxxxx'x extremely
successful insurance marketing and distribution services along with their
existing internet based technology platform, we can offer and deliver the best
online insurance and financial services products in the industry today."
The BigFNI is a leading provider of online financial and insurance services.
Utilizing its proprietary software and development expertise, BigFNI is poised
to be a leader in today's eCommerce marketplace. Partnering with leading
financial and insurance institutions, BigFNI offers a comprehensive range of
services, including credit cards, mortgages, automobile loans and insurance
products. For more information visit the company's web site at
xxxx://xxx.xxxxxx.xxx or contact Xxxxxxx Xxxx, Executive Vice President at
xxxxx@xxxxxxxxx.xxx or call (800) 663-9171 ext. 126.
X.X. Xxxxxx Holdings, Inc. is a leading provider of integrated risk management
and distribution services, including reinsurance intermediary services, risk
management consulting and administration services and primary distribution
services. The Company is headquartered in Dallas, Texas with branch offices
throughout the United States and strategic locations in Europe, Latin America
and the Pacific Rim. For more information, check the Internet at xxx.xxx.xxx.
X.X. XXXXXX HOLDINGS
February 20, 2001
X. X. Xxxxxx Holdings, Inc.
000 X. Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Senior Vice President
and Chief Financial Officer
Re: Consent to Dividends
Ladies and Gentlemen:
This letter is delivered to you in connection with that certain Ninth
Amendment to Credit Agreement dated as of the date hereof by and among X.X.
Xxxxxx Holdings, Inc. (the "Borrower"), Bank of America, N.A., formerly known as
NationsBank, N.A., as the Agent (the "Agent"), and the other parties hereto (the
"Ninth Amendment"), which amends that certain Credit Agreement dated as of
November 3, 1998 by and among the Borrower, the Agent and the other parties
thereto (as the same has been or may be amended, restated or modified from time
to time, the "Credit Agreement"). Unless otherwise defined herein, capitalized
terms shall have the meanings set forth in the Credit Agreement.
In connection with, and in consideration of the agreements contained
in, the Ninth Amendment, and the Agent and the Required Lenders hereby consent
and agree that the Borrower may make regularly scheduled quarterly dividends in
an amount not to exceed $0.07 per share so long as (i) no Default shall have
occurred and be continuing immediately before and immediately after such
payment, and (ii) the aggregate Commitments under the Credit Agreement shall be
equal to or less than Forty Million Dollars ($40,000,000).
The consent granted herein is effective only to the extent specifically
stated above and is limited as specified herein. All terms and provisions of,
and all rights and remedies of the Agent and the Lenders under, the Loan
Documents shall continue in full force and effect and are hereby confirmed and
ratified in all respects.
THIS LETTER AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO RELATING TO THE CONSENT SET FORTH HEREIN AND SUPERSEDES ANY AND
ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE CONSENT SET FORTH HEREIN AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS
AMONG THE PARTIES HERETO.
X. X. Xxxxxx Holdings, Inc.
Page 2
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. This letter agreement may be executed in any number of counterparts
and by different parties on separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
agreement. This letter agreement shall not be effective unless and until the
Required Lenders, the Borrower and the Significant Subsidiaries each have
executed and delivered a counterpart hereof, whereupon this letter agreement
shall be effective as of the date first above written.
By executing this letter agreement in the spaces provided below, (a)
the Required Lenders agree to the terms, conditions and provisions hereof, (b)
the Borrower agrees to the terms, conditions and provisions hereof, and (c) the
Significant Subsidiaries (i) consent to the consent granted herein and the other
terms, conditions and provisions hereof, and (ii) agree that the Guaranties and
all other Loan Documents to which the Significant Subsidiaries, respectively,
are a party are, and shall continue to be, in full force and effect and are
hereby confirmed and ratified in all respects.
Very truly yours,
BANK OF AMERICA, N.A.
as the Agent and a Lender
By:
-------------------------------------
D. Xxxxx Xxxxxxxx
Principal
X. X. Xxxxxx Holdings, Inc.
Page 3
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
(formerly known as Norwest Bank Minnesota,
N.A.), as a Lender
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
X. X. Xxxxxx Holdings, Inc.
Page 4
BANK ONE, NA
(formerly known as First National Bank of
Chicago), as a Lender
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
X. X. Xxxxxx Holdings, Inc.
Page 5
FLEET NATIONAL BANK,
as a Lender
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
X. X. Xxxxxx Holdings, Inc.
Page 6
Accepted and Agreed to
as of February 20, 2001
X. X. XXXXXX HOLDINGS, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Senior Vice President and
Chief Financial Officer
BLANCH AIRCRAFT HOLDINGS CORP.
BLANCH CATASTROPHE SERVICES, INC.
X.X. XXXXXX CAPITAL RISK SOLUTIONS, INC.
X.X. XXXXXX CO., INC.
X.X. XXXXXX INSURANCE SERVICES, INC.
X.X. XXXXXX INTERNATIONAL, INC.
K2 TECHNOLOGIES, INC.
PARAGON REINSURANCE RISK MANAGEMENT SERVICES, INC.
UNISURE, INC.
XXXXXXX XXXXXX (USA) INC.
INTERNATIONAL ACCIDENT FACILITIES, INC.
XX XXXXXX, INCORPORATED
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Treasurer
X.X. XXXXXX CAPITAL MARKETS, INC.
By:
------------------------------------
Xxxxx Xxxxxxxxxx
Assistant Treasurer
X.X. XXXXXX DL, L.L.C.
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
X. X. Xxxxxx Holdings, Inc.
Page 7
XXXXXX X.X.
By: X.X. Xxxxxx GP, Inc., General Partner
By:
----------------------------------------------
Xxxxx Xxxxxxxxxx
Treasurer
