Exhibit 99.3
FOURTH AMENDMENT AND WAIVER TO
CREDIT AGREEMENT
This Fourth Amendment and Waiver to Credit Agreement, dated as of
January 8, 2002 (this "Amendment"), is among XXXX INDUSTRIES, INC., a
Delaware corporation (the "Parent"), each of the Parent's domestic
Subsidiaries, as borrowers (together with the Parent, collectively the
"Borrowers"), the Parent and each of the Parent's domestic Subsidiaries, as
guarantors (the "Guarantors", and together with the Borrowers, collectively
the "Credit Parties" and each a "Credit Party"), LASALLE BANK NATIONAL
ASSOCIATION, as lender ("LaSalle"), NATIONAL CITY BANK, as lender ("NCB"),
Firstar Bank, as lender ("Firstar"), Comerica Bank, as lender ("Comerica"),
Associated Bank, N.A., as lender ("Associated Bank", and together with
LaSalle, NCB, Firstar and Comerica, collectively the "Lenders"), LaSalle,
as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), and NCB, as syndication agent for the Lenders (in
such capacity, the "Syndication Agent", and together with the
Administrative Agent, the "Agents"). Capitalized terms used in this
Amendment and not otherwise defined herein have the meanings assigned to
such terms in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS:
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1. The Credit Parties, the Lenders and the Agents are parties to the
Credit Agreement dated as of March 8, 2001 (as such agreement may be
amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"), under which the Lenders provided the Borrowers
with, among other things, a $65,000,000 credit facility.
2. The Lenders have extended credit to the Borrowers under the Credit
Agreement as evidenced by, among other things, the Notes evidencing the
Revolving Loans dated as of November 19, 2001 and made by the Borrowers in
favor of the Lenders in the principal amount of $35,000,000 and the Notes
evidencing the Term Loans (the "Existing Term Loan Notes") dated as of
November 19, 2001 and made by the Borrowers in favor of the Lenders in the
original principal amount of $30,000,000.
3. The Credit Parties and the Lenders have agreed to amend and restate
the Existing Term Loan Notes to modify the repayment schedule for the Term
Loan.
4. The Credit Parties have requested that the Lenders amend the Credit
Agreement to, among other things, (a) incorporate the amendments to the
Existing Term Loan Notes, (b) modify certain covenants of the Credit
Agreement, (c) modify the Revolving Maturity Date, (d) modify the
percentages under and add another Level to the definition of Applicable
Margin and (e) modify certain financial and non-financial covenants, all on
the terms and subject to the conditions of this Amendment.
5. The Credit Parties have requested that the Lenders waive any Event
of Default arising from the Credit Parties' noncompliance with certain
financial covenants contained in the Credit Agreement.
AGREEMENT:
In consideration of the premises and the mutual agreements contained
in this Amendment, and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the Credit Parties and
the Lenders agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
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1.1 On the date this Amendment becomes effective, after satisfaction
by the Credit Parties of each of the conditions set forth in Section 7 (the
"Effective Date"), Section 1.1 of the Credit Agreement is amended by
deleting the definition of "Additional Term Loan Payments" from such
Section in its entirety.
1.2 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Applicable Margin" from such
Section in its entirety and replacing it as follows:
Applicable Margin means, as of any date of determination, a
percentage per annum determined by reference to the Level in effect at
such time, as set forth below:
Applicable Margin:
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Eurodollar Rate
(Reserve
Level Letter of Credit Fee Commitment Fee Adjusted) Base Rate
----- -------------------- -------------- --------- ---------
Level I 3.50% 0.50% 3.50% 1.25%
Level II 3.25% 0.50% 3.25% 1.00%
Level III 3.00% 0.50% 3.00% 0.75%
Level IV 2.75% 0.50% 2.75% 0.50%
For the period from January 8, 2002 through August 15, 2002, the
Applicable Margin shall be determined by reference to Level I.
Thereafter, the Applicable Margin shall change upon receipt of a
compliance certificate delivered pursuant to Section 10.1(D) of this
Agreement.
1.3 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Fixed Charges" from such
Section in its entirety and replacing it as follows:
Fixed Charges means, for the Parent and its Subsidiaries for any
period determined on a consolidated basis in accordance with GAAP, the
sum of (i) Net Interest Expense plus (ii) the aggregate fixed amounts
payable under Capital Leases plus (iii) any scheduled installments of
principal of Debt plus (iv) Capital Expenditures plus (v) cash taxes
paid plus (vi) cash dividends and other distributions declared by the
Parent or any of its Subsidiaries (excluding dividends paid to the
Parent or any Credit Party).
1.4 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Level" from such Section in
its entirety and replacing it as follows:
Level means any of Xxxxx X, Xxxxx XX, Xxxxx XXX xxx Xxxxx XX.
"Level I" means that the Total Debt to EBITDA Ratio for the relevant
Computation Period is greater than or equal to 3.00 to 1.00. "Level
II" means that the Total Debt to EBITDA Ratio for the relevant
Computation Period is greater than or equal to 2.00 to 1.00 and less
than 3.00 to 1.00. "Level III" means that the Total Debt to EBITDA
Ratio for the relevant Computation Period is greater than or equal to
1.50 to 1.00 and less than 2.00 to 1.00. "Level IV" means that the
Total Debt to EBITDA Ratio for the relevant Computation Period is less
than 1.50 to 1.00. Any change in a Level will be made upon receipt by
the Administrative Agent of the applicable compliance certificate
delivered under Section 10.1(D) and will be effective three Business
Days thereafter.
1.5 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Net Worth" from such Section
in its entirety and replacing it as follows:
Net Worth means, at any time, the sum, without duplication, of
(i) the consolidated net worth of the Parent and its Subsidiaries
determined in accordance with GAAP plus (ii) to the extent taken, an
amount not to exceed $5,000,000 representing noncash after-tax charges
related to the asset impairment write-down of the Parent's Casa Grande
facility.
1.6 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Revolving Commitment Amount"
from such Section in its entirety and replacing it as follows:
Revolving Commitment Amount means (i) for the period until
September 29, 2002, $35,000,000, (ii) for the period from September
30, 2002 until October 30, 2002, $32,000,000 and (iii) for the period
from October 31, 2002 and continuing thereafter, $30,000,000, as such
amount may be reduced from time to time pursuant to Section 6.1.
1.7 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Revolving Maturity Date"
from such Section in its entirety and replacing it as follows:
Revolving Maturity Date means June 30, 2003.
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1.8 On the Effective Date, Section 1.1 of the Credit Agreement is
further amended by deleting the definition of "Total Debt to EBITDA Ratio"
from such Section in its entirety and replacing it as follows:
Total Debt to EBITDA Ratio means, at any date of determination,
the ratio of (i) the aggregate outstanding principal amount of all
Debt of the Parent and its Subsidiaries to (ii) EBITDA for the
Computation Period most recently ended, all as determined on a
consolidated basis in accordance with GAAP. Notwithstanding the
foregoing, the Total Debt to EBITDA Ratio, at any date of
determination for any Computation Period including the Fiscal Quarter
ending December 31, 2001, means the ratio of (x) the aggregate
outstanding principal amount of all Debt of the Parent and its
Subsidiaries to (y) the sum of (1) EBITDA plus (2) an amount up to
$3,600,000 in cash severance charges that were incurred during the
fourth Fiscal Quarter of Fiscal Year 2001, all as determined on a
consolidated basis in accordance with GAAP.
1.9 On the Effective Date, Section 3.1 of the Credit Agreement is
amended by deleting such Section in its entirety and replacing it as
follows:
3.1 Notes. The Loans of each Lender shall be evidenced by a
promissory note (each, a "Note") substantially in the form set forth
in Exhibits A-1 and A-2, with appropriate insertions, payable to the
order of such Lender in a face principal amount equal to the sum of
such Lender's Percentage of the Revolving Commitment Amount plus the
principal amount of such Lender's Term Loan. Each Note shall be
payable to the order of the applicable Lender in an amount equal to
the aggregate unpaid principal amount of all of such Lender's Loans,
as follows:
(A) each Revolving Loan of such Lender shall be repaid in full
on the Revolver Termination Date; and
(B) each Term Loan of such Lender shall be repaid (i) in a
quarterly installment on the last Business Day of the
calendar quarter ending December 31, 2001, with such
installment to be equal to such Lender's Percentage of
$1,500,000, (ii) in monthly installments on the last
Business Day of each month commencing with the month ending
January 31, 2002 through and including the month ending
December 31, 2002, with such installments to be equal to
such Lender's Percentage of $500,000, and (iii) in monthly
installments on the last Business Day of each month
commencing with the month ending January 31, 2003 and
continuing through and including the month ending May 31,
2003, with such installments to be equal to such Lender's
Percentage of $750,000, and (iv) a final installment on June
30, 2003 in an amount equal to such Lender's Percentage of
the remaining aggregate outstanding amount of the Term
Loans.
1.10 On the Effective Date, Section 10.1 of the Credit Agreement is
amended by deleting subsection (D) of Section 10.1 in its entirety and
replacing it as follows:
(D) Compliance Certificates. Contemporaneously with the
furnishing of a copy of each annual audit report pursuant to
Section 10.1(A) and each set of quarterly statements
pursuant to Section 10.1(B), a duly completed compliance
certificate in the form of Exhibit B, with appropriate
insertions, dated the date of such annual report or such
quarterly statements and signed by a Responsible Officer of
the Parent, containing a computation of each of the
financial ratios and restrictions set forth in Sections
10.6(A), 10.6(B), 10.6(C), 10.6(D), 10.6(E)(xvii), 10.6(F),
evidence of compliance with the covenants contained in
Sections 10.7, 10.9 and 10.10 of this Agreement, and to the
effect that such officer has not become aware of any Default
or Event of Default that has occurred and is continuing or,
if there is any such event, describing it and the steps, if
any, being taken to cure it.
1.11 On the Effective Date, Section 10.1 of the Credit Agreement is
further amended by adding new subsection (K) of Section 10.1 as follows:
(K) EBITDA Compliance Certificates. Promptly when available and
in any event within 20 days after the end of each month of
each Fiscal Year commencing with Fiscal Year 2002, a duly
completed compliance certificate in form and substance
reasonably satisfactory to the Agents signed by a
Responsible Officer of the Parent and containing a
computation of the financial covenant set forth in Section
10.6(E)(v) through Section 10.6(E)(xvi).
1.12 On the Effective Date, Section 10.1 of the Credit Agreement is
further amended by adding new subsection (L) of Section 10.1 as follows:
(L) Additional Compliance Certificate. Promptly when available
and in any event on or before January 30, 2002, a duly
completed compliance certificate in form and substance
satisfactory to the Agents signed by a Responsible Officer
of the Parent and containing a computation of the financial
covenants set forth in Sections 10.6(G) and 10.6(H).
1.13 On the Effective Date, Section 10.6 of the Credit Agreement is
amended by deleting subsection (A) of Section 10.6 in its entirety and
replacing it as follows:
(A) Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio of the Parent and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, to be less than: (i) 1.10
to 1.00 at any time during the Computation Periods commencing on the
Initial Closing Date and ending with the Fiscal Quarter ending
September 30, 2001; (ii) 1.15 to 1.00 at any time during the
Computation Period ending with the Fiscal Quarter ending December 31,
2001; (iii) 0.35 to 1.00 at any time during the Fiscal Quarter ending
March 31, 2002; (iv) 0.75 to 1.00 as of the end of the two consecutive
Fiscal Quarters ending June 30, 2002; (v) 0.85 to 1.00 as of the end
of the three consecutive Fiscal Quarters ending September 30, 2002;
(vi) 0.90 to 1.00 as of the end of the Computation Period ending
December 31, 2002; and (vii) 1.00 to 1.00 at any time during the
Computation Period ending March 31, 2003.
1.14 On the Effective Date, Section 10.6 of the Credit Agreement is
amended by deleting subsection (B) of Section 10.6 in its entirety and
replacing it as follows:
(B) Net Worth. Not permit Net Worth at any time to be less than
an amount equal to (i) $78,400,000 minus (ii) an amount equal to the
sum of (a) the aggregate reduction to shareholders equity of the
Parent directly resulting from the Repurchase (determined in
accordance with GAAP) plus, to the extent not included in the
preceding clause (a), (b) the aggregate amount of fees, costs, and
expenses expensed as a charge by the Parent in the first and second
Fiscal Quarter of Fiscal Year 2001 in connection with the Repurchase
and the Refinancing plus (iii) for each Fiscal Quarter ending after
December 31, 1999, an amount equal to the greater of (x) 75% of
Consolidated Net Income for such Fiscal Quarter and (y) zero.
1.15 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by deleting subsection (C) of Section 10.6 in its entirety
and replacing it as follows:
(C) Total Debt to EBITDA Ratio. Not permit during any Computation
Period set forth below the Total Debt to EBITDA Ratio to be greater
than the ratio set forth below for such Computation Period:
Computation Total Debt to
Period Ending EBITDA Ratio
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March 31, 2001 2.50 to 1.00
June 30, 2001 2.50 to 1.00
September 30, 2001 2.50 to 1.00
December 31, 2001 2.50 to 1.00
March 31, 2002 3.25 to 1.00
June 30, 2002 6.70 to 1.00
September 30, 2002 6.60 to 1.00
December 31, 2002 3.45 to 1.00
March 31, 2003 3.00 to 1.00
1.16 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by deleting subsection (D) of Section 10.6 in its entirety
and replacing it as follows:
(D) Capital Expenditures. Not permit the aggregate amount of all
Capital Expenditures made by the Parent and its Subsidiaries to exceed
(i) $17,800,000 during the 2001 Fiscal Year and (ii) $2,000,000 during
each Fiscal Year commencing with Fiscal Year 2002 and continuing
thereafter.
1.17 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by deleting subsection (E) of Section 10.6 in its entirety
and replacing it as follows:
(E) EBITDA. Not permit EBITDA of the Parent and its Subsidiaries,
determined on a consolidated basis, to be less than: (i) $34,000,000
at any time during the Computation Period ending March 31, 2001; (ii)
$36,000,000 at any time during the Computation Period ending June 30,
2001; (iii) $40,000,000 at any time during the Computation Period
ending September 30, 2001; (iv) $40,000,000 at any time during the
Computation Period ending December 31, 2001; (v) negative $250,000 as
of the end of the month ending January 31, 2002; (vi) $300,000 as of
the end of the two consecutive months ending February 28, 2002; (vii)
$1,000,000 as of the end of the three consecutive months ending March
31, 2002; (viii) $2,500,000 as of the end of the four consecutive
months ending April 30, 2002; (ix) $3,500,000 as of the end of the
five consecutive months ending May 31, 2002; (x) $5,000,000 as of the
end of the six consecutive months ending June 30, 2002; (xi)
$5,900,000 as of the end of the seven consecutive months ending July
31, 2002; (xii) $7,200,000 as of the end of the eight consecutive
months ending August 31, 2002; (xiii) $8,600,000 as of the end of the
nine consecutive months ending September 30, 2002; (xiv) $10,000,000
as of the end of the ten consecutive months ending October 31, 2002;
(xv) $10,800,000 as of the end of the eleven consecutive months ending
November 30, 2002; (xvi) $11,200,000 as of the end of the twelve
consecutive months ending December 31, 2002; and (xvii) $11,800,000 as
of the end of the Computation Period ending March 31, 2003.
1.18 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by deleting subsection (F) of Section 10.6 in its entirety
and replacing it as follows:
(F) Asset Value. Not permit at any time the aggregate book value
of the assets of all Subsidiaries that are not Credit Parties to
exceed ten percent of the aggregate book value of the assets of the
Parent and all of its Subsidiaries during any Fiscal Year.
1.19 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by adding new subsection (G) of Section 10.6 as follows:
(G) EBITDA. Not permit EBITDA of the Parent and its Subsidiaries,
determined on a consolidated basis and including an amount up to
$3,600,000 of cash severance add backs, to be less than negative
$2,500,000 for the Fiscal Quarter ending December 31, 2001.
1.20 On the Effective Date, Section 10.6 of the Credit Agreement is
further amended by adding new subsection (H) of Section 10.6 as follows:
(H) Maximum Special Charges. Not permit special cash and non-cash
charges of the Parent and its Subsidiaries, determined on a
consolidated basis, to exceed an aggregate amount of $8,600,000 for
the Fiscal Quarter ending December 31, 2001.
1.21 On the Effective Date, Section 10.7 of the Credit Agreement is
amended by deleting subsection (B) of Section 10.7 in its entirety and
replacing it as follows:
(B) Debt secured by Liens permitted by Section 10.8(C) or (D),
and refinancings of any such Debt so long as the terms
applicable to such refinanced Debt are no less favorable to
the applicable Credit Party than the terms in effect
immediately prior to such refinancing; provided that, the
aggregate amount of all such Debt at any time outstanding
shall not exceed $2,000,000;
1.22 On the Effective Date, Section 10.7 of the Credit Agreement is
further amended by deleting subsection (C) of Section 10.7 in its entirety
and replacing it as follows:
(C) Capital Leases relating to (i) an enterprise-wide enterprise
resource planning software installation and (ii) the
consolidation of the Credit Parties' engineering and design
software systems, not exceeding in each case an aggregate
principal amount of $1,000,000;
1.23 On the Effective Date, Section 10.7 of the Credit Agreement is
further amended by deleting subsection (K) of Section 10.7 in its entirety
and replacing it as follows:
(K) Debt of Non-United States Subsidiaries not exceeding an
aggregate outstanding amount of $3,000,000;
1.24 On the Effective Date, Section 10.9 of the Credit Agreement is
amended by deleting such Section in its entirety and replacing it as
follows:
10.9 Operating Leases. Not create, incur, assume or suffer to
exist any obligation as lessee for rental or hire of any real or
personal property, except (a) Operating Leases existing on the date of
this Agreement and any extensions, renewals, replacements or
substitutions thereof or (b) other Operating Leases if the aggregate
amount of fixed rentals under all such Operating Leases does not
exceed $500,000 during any Fiscal Year.
1.25 On the Effective Date, Section 10.10 of the Credit Agreement is
amended by deleting such Section in its entirety and replacing it as
follows:
10.10 Restricted Payments. Not, and not permit any Subsidiary to,
(a) issue any equity securities of any Credit Party other than the
Parent in an offering of equity securities registered under the
Securities Act of 1933, (b) make any distribution (other than
distributions payable in capital stock or options, warrants, or other
rights to purchase capital stock) to any shareholder of the Parent in
respect of capital stock of the Parent or (c) purchase or redeem any
of their equity interests or any warrants, options or other rights in
respect of such equity interests except upon termination of
employment, death or disability of employees and officers of the
Parent or another Credit Party. Notwithstanding the foregoing, (i) any
Credit Party or any Subsidiary may make dividends to or purchase or
redeem any equity interests held by any Credit Party, (ii) any
Subsidiary that is not a Credit Party may make dividends to or
purchase or redeem any equity interests held by any Credit Party or
any Subsidiary and (iii) the Parent may make distributions to or
purchase or redeem equity interests from any shareholder required in
connection with the Repurchase up to an aggregate amount of
$55,000,000.
1.26 On the Effective Date, Section 10.11(A) of the Credit Agreement
is amended by deleting clause (vi) from such subsection in its entirety and
replacing it as follows:
(vi) (a) the sale of the Parent's Casa Grande facility with the
prior written consent of the Agents, which consent shall not
be unreasonably withheld or delayed and (b) other Asset
Sales for which the sole consideration received is cash of
assets with an aggregate fair market value not exceeding
$1,000,000 from and after the Initial Closing Date;
1.27 On the Effective Date, Section 10.11(A) of the Credit Agreement
is further amended by deleting clause (vii) of such subsection in its
entirety and replacing it as follows:
(vii) transfers resulting from any casualty or condemnation of
property with an aggregate fair market value of up to
$500,000; and
1.28 On the Effective Date, Section 10.20 of the Credit Agreement is
amended by deleting subsection (D) of Section 10.20 in its entirety and
replacing it as follows:
(D) Investments by a Credit Party or by any of the Subsidiaries
in a Subsidiary that is not a Credit Party up to an
aggregate amount not to exceed a $2,000,000 net increase
from and after the Initial Closing Date;
1.29 On the Effective Date, Section 10.20 of the Credit Agreement is
amended by deleting subsection (I) of Section 10.20 in its entirety.
1.30 On the Effective Date, Section 10.20 of the Credit Agreement is
further amended by renaming subsection (J) of Section 10.20 to subsection
(I) and by adding the word "and" to the end of such subsection.
1.31 On the Effective Date, Section 10.20 of the Credit Agreement is
further amended by deleting subsection (K) of Section 10.20 in its
entirety.
1.32 On the Effective Date, Section 10.20 of the Credit Agreement is
further amended by renaming subsection (L) of Section 10.20 to Subsection
(J).
SECTION 2. WAIVER.
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2.1 Waiver. (a) On the Effective Date, the Lenders waive any Event of
Default under Section 12.1(D) of the Credit Agreement due solely to the
Credit Parties' noncompliance with the financial covenants set forth in
Sections 10.6(E) for the period ending September 30, 2001.
(b) On the Effective Date, the Lenders waive any Event of Default
under Section 12.1(D) of the Credit Agreement due solely to the Credit
Parties' noncompliance with the financial covenants set forth in Sections
10.6(A), 10.6(C) and 10.6(E) up through and including December 31, 2001.
(c) On the Effective Date, the Lenders waive any Event of Default
under Section 12.1(E) of the Credit Agreement due solely to the Credit
Parties' noncompliance with the representation and warranty set forth in
Section 9.5 through the Effective Date.
(d) On the Effective Date, the Lenders waive any Event of Default
under Section 12.1(J) through the Effective Date.
2.2 Other. Other than as set forth in Section 2.1 of this Amendment,
nothing in this Amendment should in any way be deemed (a) a waiver of any
Event of Default or (b) an agreement to forbear from exercising any
remedies with respect to any Event of Default.
SECTION 3. AMENDMENTS TO EXISTING NOTES.
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3.1 Amendment to Existing Term Loan Notes. On the Effective Date, the
Existing Term Loan Notes shall be amended, restated and replaced in their
entirety by the Third Amended and Restated Term Notes of even date with
this Amendment (the "Third Amended Term Notes"), made by the Borrowers in
favor of the Lenders in the aggregate original principal amount of
$30,000,000.
3.2 Return of Existing Term Loan Notes. On the Effective Date and
after receipt of its Third Amended Term Note, each Lender will xxxx its
respective Existing Term Loan Note evidencing the amount of such Lender's
Term Loan "superceded" and return it to the Borrowers.
SECTION 4. AMENDMENTS TO SCHEDULES.
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On the Effective Date, Schedule 2.1(A) to the Credit Agreement is
deleted and replaced in its entirety with Schedule 2.1(A) to this
Amendment.
SECTION 5. ACKNOWLEDGEMENT.
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The Credit Parties acknowledge that an Event of Default has occurred
and is continuing under Section 12.1(D) of the Credit Agreement due to the
Credit Parties' violation of the financial covenant set forth in Section
10.6(E) of the Credit Agreement for the Computation Period ending September
30, 2001 (the "Existing Default"). As a result of the Existing Default and
pursuant to Section 4.7 of the Security Agreement, the Credit Parties
transferred dominion and control over the Deposit Account to the
Administrative Agent under the Deposit Account Control Agreement dated as
of November 19, 2001 (the "Control Agreement"). Notwithstanding the Control
Agreement, the Credit Parties hereby agree and acknowledge that the
Administrative Agent's dominion and control over the Deposit Account shall
remain in full force and effect. The Credit Parties further agree and
acknowledge that the failure of the Administrative Agent to retain dominion
and control over the Deposit Account shall constitute an Event of Default
under the Credit Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
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To induce the Lenders to enter into this Amendment and to extend
further credit under the Credit Agreement, as amended by this Amendment,
the Credit Parties represent and warrant to the Lenders that:
6.1 Due Authorization; No Conflict; No Lien; Enforceable Obligation.
The execution, delivery and performance by each Credit Party of this
Amendment and the other documents described in Section 7.2 of this
Amendment that the Credit Parties are a party to (collectively, the
"Amendment Documents") are within its corporate powers, have been duly
authorized by all necessary corporate action, have received all necessary
governmental, regulatory or other approvals (if any is required), do not
and will not contravene or conflict with any provision of (a) any law, (b)
any judgment, decree or order or (c) its articles or certificate of
incorporation, bylaws or trust documents and do not and will not contravene
or conflict with, or cause any lien to arise under, any provision of any
agreement or instrument binding upon any Credit Party or upon any of its
property. This Amendment, the Credit Agreement, as heretofore amended and
as amended by this Amendment, and the Notes, as amended by this Amendment,
are the legal, valid and binding obligations of each Credit Party,
enforceable against it in accordance with its respective terms.
6.2 Representations and Warranties. As of the Effective Date, the
representations and warranties of the Credit Parties contained in the
Credit Agreement, as heretofore amended and as amended by this Amendment,
are true and correct, except to the extent that such representations and
warranties relate solely to an earlier date.
6.3 No Default. Other than as set forth in Section 2.1 to this
Amendment, no Default or Event of Default has occurred and is continuing or
would result from the execution or delivery of this Amendment or any other
Amendment Document.
SECTION 7. CONDITIONS TO EFFECTIVENESS.
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The effectiveness of the amendments contemplated by this Amendment is
subject to the following:
7.1 Representations and Warranties. The representations and warranties
of the Credit Parties contained in this Amendment are true and correct as
of the Effective Date.
7.2 Documents and Fees. The Lenders have received all of the
following, each duly executed and dated, or received, by such date as is
satisfactory to the Administrative Agent in form and substance satisfactory
to the Agents:
(A) Fourth Amendment and Waiver to Credit Agreement. This
Amendment executed by each Credit Party, the Agents and all Lenders;
(B) Amendment Fee. An amendment fee paid to the Administrative
Agent for the account of each Lender party hereto equal to the product
of each such Lender's Commitment times 0.25 percent; and
(C) Other. Such other documents as the Agents may reasonably
request.
SECTION 8. MISCELLANEOUS.
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8.1 Captions. The recitals to this Amendment (except for definitions)
and the section captions used in this Amendment are for convenience only
and do not affect the construction of this Amendment.
8.2 Governing Law; Severability. THIS AMENDMENT IS A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. Wherever
possible, each provision of this Amendment must be interpreted in such a
manner as to be effective and valid under applicable law, but if any
provision of this Amendment is prohibited by or invalid under such law,
such provision is ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
8.3 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart is deemed to be an original, but all such
counterparts together constitute but one and the same Amendment. The Credit
Parties and the Lenders agree to accept facsimile counterparts.
8.4 Successors and Assigns. This Amendment is binding upon the Credit
Parties, the Lenders and their respective successors and assigns, and
inures to the sole benefit of the Credit Parties, the Lenders and their
successors and assigns. A Credit Party cannot assign its rights or delegate
its duties under this Amendment.
8.5 Revival of Obligations. If all or any part of any payment under or
on account of the Credit Agreement, the other Loan Documents, this
Amendment or any agreement, instrument or other document executed or
delivered by the Credit Parties in connection with this Amendment is
invalidated, set aside, declared or found to be void or voidable or
required to be repaid to the issuer or to any trustee, custodian, receiver,
conservator, master, liquidator or any other person pursuant to any
bankruptcy law or pursuant to any common law or equitable cause then, to
the extent of such invalidation, set aside, voidness, voidability or
required repayment, such payment would be deemed to not have been paid, and
the obligations of the Credit Parties in respect thereof shall be
immediately and automatically revived without the necessity of any action
by the Lenders.
8.6 References. From and after the Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein",
or words of like import, and each reference in the Credit Agreement or any
other Loan Document to the Credit Agreement, the Notes or to any term,
condition or provision contained "thereunder", "thereof", "therein", or
words of like import, mean and are a reference to the Credit Agreement or
the Notes (or such term, condition or provision, as applicable) as amended,
supplemented, restated or otherwise modified by this Amendment or the Third
Amended Term Notes, as applicable.
8.7 Continued Effectiveness. Notwithstanding anything contained in
this Amendment to the contrary, the terms of this Amendment are not
intended to and do not serve to effect a novation as to the Credit
Agreement. The Credit Parties and the Lenders expressly do not intend to
extinguish the Credit Agreement. Instead, it is the express intention of
the Credit Parties and the Lenders to reaffirm the indebtedness created
under the Credit Agreement. The Credit Agreement, as amended by this
Amendment, remains in full force and effect and the terms and provisions of
the Credit Agreement are ratified and confirmed.
8.8 Costs, Expenses and Taxes. The Credit Parties and the Lenders
affirm and acknowledge that Section 15.5 of the Credit Agreement applies to
this Amendment and the transactions and agreements and documents
contemplated under this Amendment.
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Delivered at Chicago, Illinois, as of the date and year first above written.
CREDIT PARTIES:
XXXX INDUSTRIES, INC.
XXXX INSTALLATION SERVICES, INC.
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX PRODUCTS, INC.
XXXX CONSTRUCTION, INC.
FOLDING CARRIER CORP.
XXXX FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
(for each of the foregoing entities)
ADMINISTRATIVE AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SYNDICATION AGENT:
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRSTAR BANK
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Account Officer
ASSOCIATED BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President