SEVENTH AMENDMENT TO
LOAN AGREEMENT
This Seventh Amendment to Loan Agreement (this "Seventh Amendment"), dated
as of July 24, 1995, is entered into among Xxxxxx Industries, Inc., a Texas
corporation ("Borrower"), the banks listed on the signature pages hereof other
than Citibank, N.A. ("Citibank") (singly, a "Lender," and collectively
"Lenders"), Citibank for the purpose of Section 3 hereto only, and NationsBank
of Texas, N.A. (formerly known as NCNB Texas National Bank), as Administrative
Lender ("Administrative Lender").
BACKGROUND
A. Borrower, certain banks and Administrative Lender have entered into
that certain Loan Agreement dated as of May 15, 1989, as amended by that certain
First Amendment to Loan Agreement, dated as of February 12, 1990, that certain
Second Amendment to Loan Agreement, dated as of August 31, 1990, that certain
Third Amendment to Loan Agreement, dated as of December 3, 1990, that certain
Fourth Amendment to Loan Agreement, dated as of June 1, 1991, that certain
Fourth Amendment to Loan Agreement, dated as of December 31, 1991, that certain
Fifth Amendment to Loan Agreement, dated as of May 1, 1992 and that certain
Sixth Amendment to Loan Agreement, dated as of December 31, 1993 (said Loan
Agreement, as amended, the "Loan Agreement"; capitalized terms used herein shall
have the meaning given to them in the Loan Agreement).
B. Borrower has requested to remove (i) Citibank as a lender under the
Loan Agreement and (ii) reduce the Total Commitment by the amount of Citibank's
Commitment. Lenders and Citibank are willing to consent to such request,
subject to the terms and conditions of this Seventh Amendment.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
AGREEMENT
1. Amendments.
a. The second paragraph of page 1 of the Loan Agreement, entitled
"BACKGROUND" is hereby amended to read as follows:
"BACKGROUND
Borrower has requested Lenders to make loans to Borrower in the
aggregate principal amount at any one time outstanding to Borrower not
in excess of $52,000,000.00, convertible into term loans on April 1,
1998, or later as herein provided. Borrower requests each Lender to
commit to lend up to the amount stated opposite its name in the
following schedule, and each Lender is willing to extend such credit,
subject to the terms and conditions hereinafter set forth:
Specified
Bank Commitment Percentage
---- ---------- ----------
NationsBank of Texas, N.A. $24,000,000 46.15384%
Bank One, Texas, N.A. $12,000,000 23.07692%
The Bank of New York $10,000,000 19.23076%
Texas Commerce Bank National
Association $ 6,000,000 11.53846%
----------- ---------
Total $52,000,000 100.00%
In consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, receipt of which is
acknowledged by all parties hereto, the parties agree as follows:"
b. The definition of "Commitment" set forth in Article I of the Loan
Agreement is hereby amended by deleting "$72,000,000" and substituting
"$52,000,000" in lieu thereof.
2. Representations and Warranties. Borrower represents and warrants to
Administrative Lender and each Lender that, as of the date hereof and after
giving effect to the amendments provided in Section 1:
a. the representations and warranties contained in the Loan
Agreement and each of the other Loan Papers are true and correct in all
material respects on and as of the date hereof as though made on and as of
such date;
b. no event has occurred and is continuing which constitutes a
Default or an Event of Default;
c. Borrower has full power and authority to execute and deliver this
Seventh Amendment, and this Seventh Amendment and the Loan Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
Borrower, enforceable in accordance with their terms, except as
enforceability may be limited by Debtor Relief Laws and except as rights to
indemnity may be limited by federal or state securities laws; and
d. no authorization, approval, consent or other action by, notice
to, or filing with, any Tribunal or other Person (including the Board of
Directors of Borrower or any Subsidiary), is required for the
(i) execution, delivery or performance by Borrower of this Seventh
Amendment or (ii) the acknowledgment of this Seventh Amendment by each
Subsidiary which executed a Guaranty.
3. Acknowledgement. By signing below, Citibank, Borrower and each Lender
acknowledges and agrees that upon payment in full of the amounts specified in
Section 4.d of this Seventh Amendment, Citibank shall no longer be a Lender
under the Loan Agreement and the other Loan Papers and all the rights (except as
set froth in the immediately succeeding proviso) and obligations of Citibank
thereunder shall terminate; provided, however, Citibank shall continue to be
entitled to indemnification rights with respect to any liabilities or expenses
which arise as a result of matters which occurred at such time as Citibank was a
lender under the Credit Agreement.
4. Conditions of Effectiveness. This Seventh Amendment shall be
effective as of July 24, 1995 ("Effective Date"), subject to the following:
a. Lenders shall have each executed a counterpart of this Seventh
Amendment;
b. Administrative Lender shall have received counterparts of this
Seventh Amendment executed by Borrower;
c. Administrative Lender shall have received counterparts of this
Seventh Amendment acknowledged by each Subsidiary which executed a
Guaranty;
d. Citibank shall have received the accrued and unpaid portion of
all Loans, interest, fees and all other amounts owed to Citibank up to but
not including the date of this Seventh Amendment; and
e. Administrative Lender shall have received, in form and substance
satisfactory to Administrative Lender and Special Counsel, such other
documents, certificates, and instruments as Administrative Lender shall
require.
5. Guarantor Acknowledgement. By signing below, each Subsidiary which
has executed a Guaranty (i) acknowledges, consents and agrees to the execution,
delivery and performance by Borrower of this Seventh Amendment,
(ii) acknowledges and agrees that its obligations in respect of its Guaranty are
not released, diminished, waived, modified, impaired or affected in any manner
by this Seventh Amendment or any of the provisions contemplated herein,
(iii) ratifies and confirms its obligations under its Guaranty and
(iv) acknowledges that it has no claims or offsets against, or defenses or
counterclaims to, its Guaranty.
6. Reference to the Loan Agreement.
6.1. Upon the effectiveness of this Seventh Amendment, each reference in
the Loan Agreement to "this Agreement", "hereunder", "herein", or words of like
import shall mean and be a reference to the Loan Agreement, as affected and
amended hereby.
6.2. The Loan Agreement, as amended by the amendments referred to above,
shall remain in full force and effect and is hereby ratified and confirmed.
6.3. THE LOAN AGREEMENT, AS AMENDED BY THE AMENDMENTS REFERRED TO ABOVE,
TOGETHER WITH EACH OTHER LOAN PAPER, REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES REGARDING THE SUBJECT MATTER HEREIN AND THEREIN 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
REGARDING THE SUBJECT MATTER HEREIN.
7. Costs, Expenses and Taxes. Borrower agrees to pay within five days
after demand all costs and expenses of Administrative Lender in connection with
the preparation, reproduction, execution and delivery of this Seventh Amendment
and the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for Administrative Lender
with respect thereto and with respect to advising Administrative Lender as to
its rights and responsibilities under the Loan Agreement, as hereby amended).
8. Execution in Counterparts. This Seventh Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
9. Governing Law; Binding Effect. This Seventh Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower, Lenders, Citibank and their respective
successors and assigns.
10. Headings. Section headings in this Seventh Amendment are included
herein for convenience of reference only and shall not constitute part of this
Seventh Amendment for any other purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Seventh Amendment
as of the date first above written.
SPECIFIED PERCENTAGE: NATIONSBANK OF TEXAS, N.A.
46.15384% (formerly known as NCNB Texas National Bank),
as a Lender and as Administrative Lender
By: /S/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, SVP
(Print Name) (Print Title)
SPECIFIED PERCENTAGE: BANK ONE, TEXAS, N.A.
23.07692% (Successor to Team Bank, successor to Team
Bank, N.A., formerly known as Texas American
Bridge Bank, N.A., assignee of the Federal
Deposit Insurance Corporation, as receiver
for Texas American Bank/Fort Worth, N.A.)
By: /S/ J. Xxxxxxx Xxxxxx
J. Xxxxxxx Xxxxxx, Vice President
(Print Name) (Print Title)
SPECIFIED PERCENTAGE: THE BANK OF NEW YORK
19.23076%
By: /S/ X. X. Xxxxxxxx
X. X. Xxxxxxxx, Senior Vice President
(Print Name) (Print Title)
SPECIFIED PERCENTAGE: TEXAS COMMERCE BANK NATIONAL
11.53846% ASSOCIATION (Successor by merger to
Texas Commerce Bank - Fort Worth, N.A.)
By: /S/ X. X. Xxxxxxxx
X. X. Xxxxxxxx, Vice President
(Print Name) (Print Title)
ACKNOWLEDGED AND AGREED:
CITIBANK, N.A.
By: /S/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Vice President
(Print Name) (Print Title)
ACKNOWLEDGED AND AGREED:
XXXXXX INDUSTRIES, INC., a
Texas corporation
FEATHERLITE BUILDING PRODUCTS
CORPORATION, a Delaware corporation
FEATHERLITE PRECAST
CORPORATION, a Texas corporation
XXXXXX MANAGEMENT COMPANY,
a Delaware corporation
ACME BRICK COMPANY,
a Delaware corporation
ALPHA CARGO MOTOR EXPRESS,
INC., a Texas corporation
FOOTWEAR MANAGEMENT COMPANY,
a Delaware corporation
XXXXXX BELT COMPANY,
a Texas corporation
H. J. XXXXXX & SONS, INC.,
a Texas corporation
KINGSTIP, INC., a
Delaware corporation
FOOTWEAR INVESTMENT COMPANY,
a Delaware corporation
BRICK INVESTMENT COMPANY, a
Delaware corporation
By: /S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Vice President - Finance of All
XXXXXX MANAGEMENT COMPANY, L.P.,
a Delaware limited partnership
By: XXXXXX MANAGEMENT COMPANY,
General Partner
By: /S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Vice President - Finance
ACME ROYALTY COMPANY, L.P., a
Delaware limited partnership
By: BRICK INVESTMENT COMPANY,
General Partner
By: /S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Vice President - Finance
BOOT ROYALTY COMPANY, L.P., a
Delaware limited partnership
By: FOOTWEAR INVESTMENT
COMPANY, General Partner
By: /S/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Vice President - Finance
ACME ROYALTY COMPANY,
a Delaware corporation
BOOT ROYALTY COMPANY,
a Delaware corporation
J I COMPANY, a Delaware corporation
By: /S/ Xxxxx Xxxxx
Xxxxx Xxxxx, President of all
