AMENDMENT NO. 3 TO POST-PETITION LOAN AND SECURITY AGREEMENT
EXHIBIT
4.2
AMENDMENT NO.
3
TO
POST-PETITION LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 3 TO POST-PETITION LOAN AND SECURITY AGREEMENT (this "Amendment") is dated as of December 17, 2003, among the Lenders, BANK OF AMERICA, N.A., as agent for the Lenders ("Agent"), X. X. XXXXX & CO. (the "Company") and the Subsidiaries of X. X. Xxxxx & Co. parties hereto (collectively, the "Borrowers").
WHEREAS, the parties hereto are parties to a Post-Petition Loan and Security Agreement dated as of April 1, 2001 (the "Loan Agreement"); and
WHEREAS, the parties hereto desire to amend the Loan Agreement as herein set forth:
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein and in the Loan Agreement, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
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| 1. | Amendments. |
(a) Annex A to the Loan Agreement is hereby amended by amending and restating clause (h) of the definition of "Restricted investment" in its entirety to read as follows:
‘‘(h) loans, made while no Default or Event of Default has occurred and is continuing, in an aggregate amount not to exceed $24,750,000 at any time outstanding made to ART by X. X. Xxxxx & Co.-Xxxx.;’’
2. Amendment Fee. The Borrowers, jointly and severally, agree to pay the Agent, on the Bankruptcy Court Approval Date (defined below) for the ratable benefit of the Lenders who execute this Amendment, a non-refundable amendment fee (the "Amendment Fee") in the amount of $25,000.
3. Conditions. This Amendment shall be effective upon satisfaction of the following conditions precedent:
(i) This Amendment shall have been executed by each Borrower, the Agent and Majority Lenders; and
(ii) The Agent shall have received a copy of the signed order of the Bankruptcy Court approving this Amendment and the transactions contemplated hereby (the date on which the Bankruptcy Court approves this Amendment being referred to herein as the "Bankruptcy Court Approval Date").
4. Reference to and Effect Upon the Loan Agreement.
(a) Except as specifically amended above, the Loan Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed.
(b) Upon the effectiveness of this Amendment, each reference in the Loan Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of similar import shall mean and be a reference to the Loan Agreement as amended hereby.
5. Defined Terms. Except as otherwise defined herein, all defined terms herein shall have the meanings ascribed thereto in the Loan Agreement.
6. Governing Law. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (PROVIDED THAT PERFECTION ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY GIVE EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9 OF THE UCC) OF THE STATE OF NEW YORK TO THE EXTENT NOT PREEMPTED BY FEDERAL BANKRUPTCY LAWS; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
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7. Headings. Section headings in this amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument.
(Signature Pages Follow)
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above.
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BANK OF AMERICA, N.A., as Agent and Lender |
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By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx Title: Vice President |
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BORROWERS: |
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X. X. Xxxxx
& Co. A-1 Bit & Tool Co., Inc. Alewife Boston Ltd. Alewife Land Corporation Amicon, Inc. CB Biomedical, Inc. CCHP, Inc. Coalgrace, Inc. Coalgrace II, Inc. Creative Food 'N Fun Company Darex Puerto Rico, Inc. Del Taco Restaurants, Inc. Ecarg, Inc. Five Alewife Boston Ltd. G C Limited Partners I, Inc. G C Management, Inc. GEC Management Corporation GN Holdings, Inc. GPC Thomasville Corp. Gloucester New Communities Company, Inc. Grace A-B Inc. Grace X-X XX Inc. Xxxxx Chemical Company of Cuba Grace Culinary Systems, Inc. Grace Drilling Company Grace Energy Corporation Grace Environmental, Inc. Grace Europe, Inc. Grace H-G Inc. Grace X-X XX Inc. Xxxxx Hotel Services Corporation Grace International Holdings, Inc. Grace Offshore Company Grace PAR Corporation Grace Petroleum Libya Incorporated Grace Tarpon Investors, Inc. Grace Ventures Corp. Xxxxx Xxxxxxxxxx, Inc. X. X. Xxxxx Capital Corporation X. X. Xxxxx & Co.-Conn. X. X. Xxxxx Land Corporation Gracoal, Inc. Gracoal II, Inc. |
[Signature Page to Amendment No. 3 to
Post-Petition Loan and Security Agreement]
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Guanica-Caribe Land Development
Corporation Hanover Square Corporation Homco International, Inc. Kootenai Development Company L B Realty, Inc. Litigation Management, Inc. Monolith Enterprises, Incorporated Monroe Street, Inc. MRA Holdings Corp. MRA Intermedco, Inc. MRA Staffing Systems, Inc. Remedium Group, Inc. Southern Oil, Resin & Fiberglass, Inc. Water Street Corporation, each as a Debtor and a Debtor-in-Possession |
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By: /s/ Xxxxxx X.
Xxxxxx
Its Senior Vice President or Vice President |
[Signature Page to Amendment No. 3
to Post-Petition Loan and Security
Agreement]
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CC Partners, as a Debtor and Debtor-in-Possession |
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By: MRA Staffing Systems, Inc., a General Partner |
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By: /s/ Xxxxxx X.
Xxxxxx
Its: Vice President & Treasurer |
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By: CCHP, Inc., a General Partner |
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By: /s/ Xxxxxx
X. Xxxxxx
Its: Vice President & Treasurer |
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Axial Basin Rand Company, as a Debtor and Debtor-in-Possession |
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By: Grace X-X XX, Inc., a General Partner |
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By: /s/ Xxxxxx X.
Xxxxxx
Its: Vice President & Treasurer |
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By: Grace A-B, Inc., a General Partner |
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By: /s/ Xxxxxx
X. Xxxxxx
Its: Vice President & Treasurer |
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Hayden-Gulch West Coal Company, as a Debtor and Debtor-in-Possession |
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By: Grace H-G, Inc., a General Partner |
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By: /s/ Xxxxxx X.
Xxxxxx
Its: Vice President & Treasurer |
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By: Grace X-X XX, Inc., a General Partner |
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By: /s/
Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer |
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H-G Coal Company, as a Debtor and Debtor-in-Possession |
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By: Coalgrace, Inc., a General Partner |
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By: /s/ Xxxxxx X.
Xxxxxx
Its: Vice President & Treasurer |
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By: Coalgrace II, Inc., a General Partner |
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By: /s/
Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer |
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Xxxxx and Xxxx, LLC, as a Debtor and Debtor-in-Possession |
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By: X. X. Xxxxx & Co.-Conn., its sole member |
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By: /s/ Xxxxxx
X. Xxxxxx
Its: Senior Vice President |
[Signature Page to Amendment No. 3 to
Post-Petition Loan and Security
Agreement]
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GMAC COMMERCIAL CREDIT LLC (successor by merger to GMAC Commercial Credit LLC) |
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By:
/s/ Xxxxx Xxxxx
Title: Senior Vice President Address: 1290 Avenue of the Xxxxxxxx |
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0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxxxx Facsimile: (000) 000-0000 |
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THE CIT GROUP/BUSINESS CREDIT |
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By: /s/ Xxxx Xxxxxx
Title: AVP Address: 0000 Xxxxxx xx xxx Xxxxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxx Facsimile: (000) 000-0000 |
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PNC BANK, NATIONAL ASSOCIATION |
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By: /s/ Xxxxxxxxxx Xxxxxxxxxxxxxxxx |
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Xxxxxxxxxx Xxxxxxxxxxxxxxxx |
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Title: Assistant Vice
President Address: Xxx Xxxxx Xxxxxx Xxxx. |
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0xx Xxxxx Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 Attention: Xxxxxxxxx Xxxxxxx Facsimile: (000) 000-0000 |
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BANK OF SCOTLAND |
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By: /s/ Xxxxx X. Xxx |
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Xxxxx X. Xxx Director, Business Services |
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Address: 000 0xx Xxxxxx |
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Xxx Xxxx, XX 00000 Attention: Xxxxxxx Xxxxxx Facsimile: (000) 000-0000 |
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AMSOUTH CAPITAL CORP. |
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By: /s/ Xxxxxxx X.
Xxxxxxxxx
Title: Attorney in Fact Address: 000 Xxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx
00000 Attention:____________ Facsimile: (000) 000-0000 |
[Signature Page to Amendment
No. 3 to
Post-Petition Loan and Security
Agreement]
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TRANSAMERICA BUSINESS CAPITAL CORPORATION |
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By: /s/ Xxxxxxx X.
Xxxxx
Title: Xxxxxxx X. Xxxxx SVP – Region Manager Address: 000 Xxxxxxxx Xxxxx Xxx. |
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Xxxxx X000 Xxx, XX 00000 Attention: Xxxxx Xxxxx Facsimile: (000) 000-0000 |
[Signature Page to Amendment
No. 3 to
Post-Petition Loan and Security
Agreement]
