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EXHIBIT 10.1
FOURTH AMENDMENT TO
LIMITED FORBEARANCE AGREEMENT
THIS FOURTH AMENDMENT TO LIMITED FORBEARANCE AGREEMENT (the
"Amendment"), dated as of April 13, 2001, is by and among Xxxxxxxx Manufacturing
Company, Inc. ("Borrower"), the financial institutions listed on the signature
pages hereof (collectively, the "Lenders"), and Bank of America, N.A., as
Administrative Agent ("Administrative Agent") for the Lenders.
RECITALS:
A. Borrower, Administrative Agent and Lenders have entered into that certain
Limited Forbearance Agreement (as amended, the "Agreement") dated as of February
14, 2001, as amended by that certain First Amendment to Limited Forbearance
Agreement dated as of February 28, 2001, Second Amendment to Limited Forbearance
Agreement dated as of March 12, 2001, and Third Amendment to Limited Forbearance
Agreement dated as of March 26, 2001.
B.
C. Borrower, Westar Capital II LLC and Westar Capital have requested that the
Administrative Agent and the Lenders amend the Agreement, and the Administrative
Agent and the Lenders have agreed to do so upon the terms herein set forth.
D.
E. NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
ARTICLE 1.1 Definitions. Capitalized terms used in this Amendment, to the extent
not otherwise defined herein, shall have the same meanings as in the Agreement,
as amended hereby.
ARTICLE 1
Amendments
ARTICLE 1.1 Amendment to Limited Forbearance. Effective as of the date hereof,
Section 2.1(b) of the Agreement is hereby amended by deleting therefrom the
reference to "March 31, 2001" and substituting in lieu thereof "June 29, 2001".
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ARTICLE 1.1 Amendment to Other Agreements. Effective as of the date hereof,
Section 2.2(b) of the Agreement is hereby amended to read as follows:
ARTICLE 1.2
"(b) Effective as of the date hereof, accrued but unpaid
interest on the Advances outstanding from time to time and the fee
payable pursuant to Section 2.15(f)(i) with respect to outstanding
Letters of Credit shall be due and payable on the 15th day of each
calendar month commencing on May 15, 2001, on the last day of each
calendar month, and on the Revolving Commitment Maturity Date, the
Facility A Term Loan Maturity Date or the Facility B Term Loan Maturity
Date as appropriate."
ARTICLE 1.1 Other Amendments. Effective as of the date hereof, Section 2.2 of
the Agreement is hereby amended to add thereto the following subsections (i) and
(j):
ARTICLE 1.2
"(i) The Borrower will deliver to the Administrative Agent the
following financial reports:
(a) the Borrower will deliver on or before
Tuesday of each week a 13-week rolling cash
flow forecast (including forecasting of
receipts and disbursements).
(b) the Borrower will deliver on or before
Tuesday of each week a variance report
delineating all material variances from the
prior week's forecast of receipts and
disbursements.
(c) the Borrower will deliver on or before
Tuesday of each week a report with respect
to its aggregate Eligible Accounts as of the
end of the prior week.
(j) Notwithstanding anything to the contrary contained in
Section 2.5(b) of the Credit Agreement, with respect to the month
ending on or about April 30, 2001, the Borrower shall be required to
immediately repay Revolving Credit Advances only to the extent that on
such date the aggregate principal amount of Revolving Credit Advances
and Reimbursement Obligations outstanding under the Credit Agreement
exceed the Borrowing Base then in effect by a sum in excess of
$100,000."
ARTICLE 1.1 Amendment to Schedule 1. Effective as of the date hereof through and
including June 29, 2001, Schedule 1 to the Agreement is hereby amended and
restated to read as follows:
ARTICLE 1.2
ARTICLE 1.3 1. Events of Default by reason of the Borrower's failure to comply
with Section 7.11 (Maximum Leverage Ratio), Section 7.12 (Minimum Fixed Charge
Coverage Ratio), Section 7.13 (Interest Coverage Ratio), and Section 7.21
(Senior Leverage Ratio) for the Borrower's fiscal quarters ending December 31,
2000 and March 31, 2001, to the extent set forth in the Compliance Certificates
delivered by Borrower to the Administrative Agent on
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February 20, 2001 for the quarter ended December 31, 2000, and on May 11, 2001
for the quarter ended March 31, 2001.
ARTICLE 1.4
ARTICLE 1.5 2. Events of Default by reason of the Borrower's failure to comply
with Section 2.2(k) of certain of the Deeds of Trust.
ARTICLE 1.6
ARTICLE 1.7 3. Events of Default under Section 8.1(o) of the Credit Agreement by
reason of the Specified Investors' failure to make the payments required under
the Support Agreement for Borrower's fiscal quarter ended December 30, 2000, and
March 31, 2001.
ARTICLE 1.8
ARTICLE 1.9 4. Events of Default under Section 8.1(b)(i) and 8.1(j) of the
Credit Agreement by reason of the Borrower's failure to pay the principal
amounts of the Facility A Term Loan Advances and of the Facility B Term Loan
Advances due and payable on March 31, 2001.
ARTICLE 1.10
ARTICLE 1.11 5. An Event of Default under Section 8.1(j) of the Credit Agreement
by reason of the Borrower's failure to make the interest payment due on March
15, 2001, under the Senior Subordinated Notes.
ARTICLE 1.12
ARTICLE 1.13 6. Events of Default (if any) under Section 8.1(g)(v) of the Credit
Agreement as a result of failure to pay when due principal amounts of the
Facility A Term Loan Advances and the Facility B Term Loan Advances, interest
due under the Senior Subordinated Notes, and lease payments.
ARTICLE 1.14
ARTICLE 1.15 7. Events of Default under Section 8.1(m) of the Credit Agreement
with respect to inventory located outside the United States with a value not to
exceed $650,000 and registrations of intellectual property outside the United
States.
ARTICLE 1
Representations and Warranties
The Borrower represents and warrants to the Lenders and the
Administrative Agent that:
ARTICLE 1.1 Authorization; No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower of its
obligations under the Credit Agreement have been duly authorized by all
necessary corporate action, do not require any filing or registration with or
approval or consent of any governmental agency or authority, do not and will not
conflict with, result in any violation of, or constitute any default under any
provision of the certificate of incorporation or by-laws of the Borrower or any
material agreement or other document binding upon or applicable to the Borrower
(or any of its properties) or any law or governmental regulation or court decree
or order applicable to the Borrower, and will not result in or require the
creation or imposition of any Lien on any of the properties of the Borrower
pursuant to the provisions of any agreement binding upon or applicable to the
Borrower.
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ARTICLE 1.2 Due Execution; Enforceability. This Amendment has been duly executed
and delivered by the Borrower and, together with the other Loan Documents, is a
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms subject, as to enforcement only, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of the
rights of creditors generally and to general principles of equity (regardless of
whether enforcement is sought in equity or at law).
ARTICLE 1.3
ARTICLE 1.4 Reaffirmation of Representations and Warranties. The representations
and warranties contained in the Credit Agreement and the other Loan Documents
(except for those contained in Sections 4.1(k) and 4.1(u) of the Credit
Agreement, Section 2.1(c) of the Deeds of Trust, and, solely as a result of the
Subject Events, Section 4.1(o) of the Credit Agreement) are true and correct in
all material respects on the date of this Amendment after giving effect to the
effectiveness hereof (other than any such representations and warranties that by
their terms refer to a specific date, in which case as of such specific date).
ARTICLE 1
Conditions Precedent
This Amendment shall become effective as of April 13, 2001, upon
satisfaction of all of the following conditions (such date is herein called the
"Agreement Effective Date"):
ARTICLE 1.1 Receipt of Agreement. The Administrative Agent shall have received
counterparts of this Amendment sufficient in number to provide one for each
Lender, duly executed by the Borrower, the Lenders, the Administrative Agent,
Westar Capital II LLC, and Westar Capital.
ARTICLE 1.2
ARTICLE 1.3 Default. No Default shall have occurred and be continuing other than
any Default which results solely from the Subject Events.
ARTICLE 1.4
ARTICLE 1.5 Payment of Interest and Fees. The Administrative Agent shall have
received on or prior to May 15, 2001, payment of all accrued but unpaid interest
on the Advances through May 15, 2001, and the Borrower shall have paid all
reasonable expenses and fees arising in connection with all matters undertaken
or performed at the request of the Administrative Agent or the Lenders,
including but not limited to all expenses and fees owed to Xxxxxxxx Xxxxxxxx &
Xxxxxx P.C. and the Financial Advisor to the extent billed on or prior to the
date hereof.
ARTICLE 1.6
ARTICLE 1.7 Compliance Certificate. The Administrative Agent shall have received
the Compliance Certificate due pursuant to Section 6.4 of the Credit Agreement
for the month ended on or about March 31, 2001, and shall have paid to the
Administrative Agent the amount by which the Revolving Credit Advances and
Reimbursement Obligations outstanding exceed the Borrowing Base reflected in
such Compliance Certificate.
ARTICLE 1.8
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ARTICLE 1.9 Cooperation. The Borrower shall have cooperated with Financial
Advisor and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. in all of their due diligence
inquiries.
ARTICLE 1.10
ARTICLE 1.11 Additional Information. The Administrative Agent shall have
received such additional documents, instruments and information as the
Administrative Agent or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., may
reasonably request.
ARTICLE 1.12
ARTICLE 2
Miscellaneous.
ARTICLE 1.1 Expenses. The Borrower agrees to pay on demand all reasonable costs
and expenses of the Administrative Agent (including fees, charges and expenses
of counsel for the Administrative Agent and the Financial Advisor) in connection
with the preparation, negotiation, execution, delivery and administration of
this Amendment and the Agreement and all other instruments or documents provided
for herein or therein or delivered or to be delivered hereunder or in connection
herewith or therewith. All obligations provided in this Section 5.1 shall
survive any termination of this Agreement and the Credit Agreement.
ARTICLE 1.2
ARTICLE 1.3 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Amendment.
ARTICLE 1.4
ARTICLE 1.5 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. Wherever possible each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable laws,
but if any provision of this Amendment shall be prohibited by or invalid under
such laws, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
ARTICLE 1.6
ARTICLE 1.7 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered (including by facsimile),
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same amendment. Telecopies of signatures shall be
binding and effective as originals.
ARTICLE 1.8
ARTICLE 1.9 Reference to Loan Documents. The Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified in all
respects. The Borrower hereby additionally ratifies and confirms its obligations
pursuant to the Temporary Credit Facility and all documents and instruments
executed pursuant thereto or in connection therewith and further agrees that its
obligations thereunder are not subject to any claim, offset, defense or
counterclaim.
ARTICLE 1.10
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ARTICLE 1.11 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns, and shall inure to
the sole benefit of the parties hereto and the successors and assigns of the
Administrative Agent and the Lenders. Notwithstanding the foregoing, the
Borrower shall not assign its rights or duties hereunder without the consent of
the Administrative Agent and the Lenders.
ARTICLE 1.12
ARTICLE 1.13 RELEASE.
ARTICLE 1.14
(a) The Borrower hereby unconditionally and irrevocably remises,
acquits, and fully and forever releases and discharges the
Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their
respective officers, servants, employees, agents, attorneys,
principals, directors and shareholders, and their respective heirs,
legal representatives, successors and assigns (collectively, the
"Released Lender Parties") from any and all claims, demands, causes of
action, remedies, suits, damages and liabilities (collectively, the
"Borrower Claims") of any nature whatsoever, whether now known,
suspected or claimed, whether arising under common law, in equity or
under statute, which the Borrower ever had or now has against the
Released Lender Parties which may have arisen at any time on or prior
to the date of this Agreement and which were in any manner related to
any of the Loan Documents or the enforcement or attempted enforcement
by the Administrative Agent or the Lenders of rights, remedies or
recourses related thereto.
(a) The Borrower covenants and agrees never to commence, voluntarily
aid in any way, prosecute or cause to be commenced or prosecuted
against any of the Released Lender Parties any action or other
proceeding based upon any of the Borrower Claims which may have arisen
at any time on or prior to the date of this Agreement and were in any
manner related to any of the Loan Documents.
(a) The agreements of the Borrower set forth in this Section 5.7 shall
survive termination of this Agreement.
ARTICLE 1.1 Acknowledgment of the Borrower. The Borrower acknowledges and agrees
that the Lenders and the Administrative Agent executing this Amendment have done
so in their sole discretion and without any obligation. The Borrower further
acknowledges and agrees that any action taken or not taken by the Lenders or the
Administrative Agent prior to, on or after the date hereof shall not constitute
a waiver or modification of any terms, covenant or provision of any Loan
Document other than as specified herein or prejudice any rights or remedies
other than as specified herein which the Administrative Agent or any Lender now
has or may have in the future under any Loan Document, applicable law or
otherwise, all of which rights and remedies are expressly reserved by the
Administrative Agent and the Lenders. The Borrower hereby ratifies and confirms
its obligations under the Loan Documents.
ARTICLE 1.2
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ARTICLE 1.3 Loan Document. This Amendment is a Loan Document and is subject to
all provisions of the Credit Agreement applicable to Loan Documents, all of
which are incorporated in this Amendment by reference the same as if set forth
in this Amendment verbatim.
ARTICLE 1.4
ARTICLE 1.5 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
ARTICLE 1.6
ARTICLE 1.7
[Balance of this Page Intentionally Left Blank]
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Executed and delivered as of the day and year first above written.
BORROWER:
XXXXXXXX MANUFACTURING COMPANY, INC.
By /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: Vice-President & CFO
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as
Administrative Agent
By /s/ XXXX X. XXXXXXX III
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
LENDERS
BANK OF AMERICA, N.A.
By /s/ XXXX X. XXXXXXX III
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
its Collateral Manager
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: Authorized Signature
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ AUTHORIZED SIGNATURE
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Name:
-----------------------------------
Title:
----------------------------------
By: /s/ AUTHORIZED SIGNATURE
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Name:
-----------------------------------
Title:
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
COMERICA BANK
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Vice-President
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
HSBC BANK USA
By: /s/ XXXXXXX X. ENGLISH
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Name: Xxxxxxx X. English
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Title: Associate Director
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
IMPERIAL BANK
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Vice-President
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
ARCHIMEDES FUNDING, LLC.
BY: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
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Title: Vice-President
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
ML CLO XII PILGRIM AMERICA (CAYMAN) Ltd.
By: ING Pilgrim Investments Inc.,
as its investment manager
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: Vice President
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
KZH SOLEIL LLC
By: /s/ AUTHORIZED SIGNATURE
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Name:
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Title: Authorized Agent
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
Long Drive Management Trust agrees on behalf of Tri-Links Investment
Trust to the terms of the Limited Forbearance Agreement dated as of February 14,
2001, as amended by First Amendment to Limited Forbearance Agreement dated as of
February 28, 2001, Second Amendment to Limited Forbearance Agreement dated as of
March 12, 2001, Third Amendment to Limited Forbearance Agreement dated as of
March 26, 2001, and Fourth Amendment to Limited Forbearance Agreement dated as
of April 13, 2001 (as amended, the "Agreement") solely in its capacity as a
Lender, it being understood that the terms of the Agreement shall not apply to
Tri-Links Investment Trust in its capacity as a holder of bonds issued by
Xxxxxxxx Manufacturing Company, Inc. or to any other claims against Xxxxxxxx
Manufacturing Company, Inc. held by Tri-Links Investment Trust.
TRI-LINKS INVESTMENT TRUST
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name: Xxxxx X. Xxxxxxxx, Xx.
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Title: Vice President
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Reference is made to that certain Limited Forbearance Agreement (as
amended to date, the "Agreement") dated as of February 14, 2001, among Xxxxxxxx
Manufacturing Company, Inc., Bank of America, N.A., as Administrative Agent, and
the Lenders party thereto. Reference is also hereby made to that certain Credit
Agreement dated as of August 12, 1999, among the Borrower, Bank of America, N.A.
as Administrative Agent, and the lenders party thereto. Bank of America, N.A.,
as Administrative Agent and as the sole Lender thereunder hereby agrees to
forbear from exercising the rights and remedies available to them with respect
to the Borrower only (and not with respect to any other Obligor as defined
therein or with respect to the Senior Subordinated Notes or the holders thereof)
under such Credit Agreement and the other Loan Documents as defined therein as a
result of Events of Default which exist thereunder solely as a result of the
Subject Events for the period and to the extent specified in this Agreement.
Executed as of April 13, 2001.
BANK OF AMERICA, N.A., as
Administrative Agent and as Lender
By: /s/ XXXX X. XXXXXXX III
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to Fourth Amendment to Limited Forbearance Agreement
dated as of April 13, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
ACKNOWLEDGED AND AGREED to by the following Persons, each of whom
hereby acknowledges and agrees that its obligations under the Support Agreement
are not released, diminished, impaired, reduced, or otherwise adversely affected
by the Agreement as amended hereby, and consents and agrees to this Amendment's
execution and delivery.
WESTAR CAPITAL II LLC
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Managing Partner
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WESTAR CAPITAL
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Managing Partner
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