Exhibit 99(b)(5)
SECOND AMENDMENT TO
CREDIT AGREEMENT
This Second Amendment to Credit Agreement, dated as of April 6, 2001
(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 each a
"GUARANTOR", 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 - Milwaukee,
as lender ("ASSOCIATED BANK", and together with LaSalle, NCB, Firstar and
Comerica, collectively the "LENDERS"), LaSalle, as administrative agent for the
Lenders (the "ADMINISTRATIVE AGENT"), and NCB, as syndication agent for the
Lenders (the "SYNDICATION AGENT", and together with the Administrative Agent,
the "AGENTS"). Capitalized terms used in this Amendment and not otherwise
defined have the meanings assigned to such terms in the Credit Agreement (as
defined below).
PRELIMINARY STATEMENTS:
1. The Credit Parties and the Lenders 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").
2. The Credit Parties have requested that the Lenders amend the Credit
Agreement to modify the provisions of Section 11.2(B) of the Credit Agreement on
the terms and subject to the conditions of this Amendment.
3. The Lenders are willing so to amend the Credit Agreement.
In consideration of the premises and the mutual agreements contained in
this Amendment, the Credit Parties and the Lenders agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT.
On the date this Amendment becomes effective, after satisfaction by the
Credit Parties of each of the conditions set forth in SECTION 3 (the "EFFECTIVE
DATE"), Section 11.2(B) of the Credit Agreement is amended by deleting such
section in its entirety and replacing it as follows:
(B) REPURCHASE CERTIFICATE, DOCUMENTS. A certificate executed by a
Responsible Officer of the Parent certifying the occurrence of the
closing of the tender offer aspect of the Repurchase and that such
closing has been or shall be consummated in accordance with the
terms of the Repurchase Documents without waiver, amendment or
modification of any material term thereof, excluding (x) waivers,
amendments or modifications previously disclosed in writing to the
Agents made in response to the SEC's March 15, 2001 and March 19,
2001 comment letters on Parent's Schedule TO-I and (y) the amendment
of clauses (7) and (9) of the
second paragraph of section 7 of Parent's Offer to Purchase to
measure declines in the market prices and equity indices referred to
therein from April 3, 2001, together with (i) the Repurchase
Documents, in form and substance satisfactory to the Agents, (ii)
evidence reasonably satisfactory to the Agents of the capitalization
and structure of the Credit Parties after the Repurchase, (iii)
evidence reasonably satisfactory to the Agents that no provision of
the Repurchase Documents shall have been waived, amended,
supplemented or otherwise modified in material respect, except as
permitted by the foregoing CLAUSES (x) and (y), and (iv) evidence
reasonably satisfactory to the Agents that the Parent shall not be
in breach or violation of any of its obligations under the
Repurchase Documents.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
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:
2.1 DUE AUTHORIZATION; NO CONFLICT; NO LIEN; ENFORCEABLE OBLIGATION. The
execution, delivery and performance by each Credit Party of this Amendment 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 are the legal, valid and binding
obligations of each Credit Party, enforceable against it in accordance with its
respective terms.
2.2 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.
SECTION 3. CONDITIONS TO EFFECTIVENESS.
The effectiveness of the amendments contemplated by this Amendment is
subject to the following:
3.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Credit Parties contained in this Amendment are true and correct as of the
Effective Date.
3.2 DOCUMENTS. The Agents have received all of the following, each duly
executed and dated as of the Effective Date (or such other date as is
satisfactory to the Agents) in form and substance satisfactory to the Agents:
(A) SECOND AMENDMENT. This Amendment.
(B) OTHER. Such other documents as the Agents may reasonably request.
SECTION 4. MISCELLANEOUS.
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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 such term, condition or
provision, as applicable) as amended, supplemented, restated or otherwise
modified by this Amendment.
4.6 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.
4.7 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. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President of each
of the foregoing entities
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:
--------------------------
Name:
Title:
ASSOCIATED BANK - MILWAUKEE
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
