FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT entered into as of August 6, 1998
by and between XXXXXXXXXX INDUSTRIES, INC., an Oregon corporation ("Borrower"),
and KEYBANK NATIONAL ASSOCIATION ("Bank"), is as follows:
1. Recitals. Borrower and Bank are parties to that certain Credit Agreement
dated as of March 31, 1998 ("Agreement"). Borrower and Bank desire to revise the
Agreement in the manner set forth herein.
2. Definitions.
(a) The following definitions are hereby added to the Agreement:
"Xxxxxxxxxx Trust" means Xxxxxxxxxx Industries Trust I, a Delaware
business trust.
"Xxxxxxxxxx Trust Transaction" means, (i) the formation by Borrower of
the Xxxxxxxxxx Trust, (ii) the purchase by Borrower of the common stock of
the Xxxxxxxxxx Trust, (iii) the purchase by the Xxxxxxxxxx Trust of the
subordinated debentures of Borrower, and (iv) the sale and issuance of the
Trust Preferred Securities (defined in the Term Sheet) in accordance with
the term sheet and description attached as Exhibit 1 (the "Term Sheet"),
and the execution, delivery and performance of the Guarantee (defined in
the Term Sheet) and Expense Agreement (defined in the Term Sheet) and other
agreements as described or contemplated by the Term Sheet.
"Senior Indebtedness" means all obligations owing from Borrower to
Bank, including without limitation all Indebtedness evidenced by the Loan
Documents, and any and all advances, debts, obligations, and liabilities of
Borrower to Bank, whether nor or hereafter existing and however evidenced.
3. Subordinated Debt. Section 7.17 is amended in its entirety to read as
follows:
During the period after the Closing Date and before January 1, 1999,
Borrower shall issue not less than $25,000,000 of equity or subordinated debt,
which debt shall be explicitly subordinated to all Senior Indebtedness on terms
satisfactory to Bank in its sole discretion. Notwithstanding the foregoing, such
subordinated debt may
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include among other things, subordinated debentures that may be purchased by the
Xxxxxxxxxx Trust on terms substantially as set forth in the Term Sheet, which
subordinated debentures shall be explicitly subordinated to all Senior
Indebtedness. The Bank hereby consents to the Xxxxxxxxxx Transaction on the
terms substantially set forth on the Term Sheet, provided, however, that
distributions payable on each Trust Preferred Security shall not be greater than
14% of the Liquidation Amount of $10 per Trust Preferred Security, and provided,
further, that the Xxxxxxxxxx Transaction may be materially less than
$40,000,000.
4. Guaranties. Section 8.8 is amended in its entirety to read follows:
Except for (i) the guaranty by the Borrower of the obligations of the
Xxxxxxxxxx Trust and (ii) up to $5,000,000 of guaranties of the obligations of
its Malaysian Subsidiary, guarantee or become liable in any way as surety,
endorser (other than as endorser of negotiable instruments or deposit or
collection in the ordinary course of business), accommodation endorser or
otherwise for, nor pledge or hypothecate any assets of Borrower or any
Subsidiary as security for, any liabilities or obligations of any other Person
except any of the foregoing required by his Agreement.
5. Transactions With Affiliates. Section 8.14 is amended in its entirety to
read as follows:
Except for the Xxxxxxxxxx Trust Transaction, enter into any transaction
directly or indirectly with or for any affiliate except in the ordinary course
of business on a basis no less favorable to such affiliate than would be
obtained in a comparable arm's length transaction with a Person not an affiliate
involving assets that are not material to the business and operations of
Borrower.
6. Consent - Investments in Other Persons. Notwithstanding Section 8.6 of
the Agreement and any other provisions of the Agreement to the contrary, Bank
hereby consents to the Xxxxxxxxxx Trust Transaction.
7. Release. Borrower hereby waives any and all defenses, claims,
counterclaims and offsets against Bank which may have arisen or accrued through
the date of this First Amendment and acknowledges that Bank and its officers,
agents and attorneys have made no representations or promises to Borrower except
as specifically reflected in the Agreement as amended hereby.
8. Effective Date. This First Amendment shall be effective upon the
execution of this First Amendment by Borrower and Bank.
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9. Ratification. Except as otherwise provided in this First Amendment, all
of the provisions of the Agreement are hereby ratified and confirmed and shall
remain in full force and effect.
10. One Agreement. The Agreement, as modified by the provisions of this
First Amendment, shall be construed as one agreement.
11. Counterparts. This First Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original, and all of which when taken together shall constitute one and the same
agreement.
12. Oregon Statutory Notice.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, Borrower and Bank have caused this First Amendment to
be executed as of the date first above written.
XXXXXXXXXX INDUSTRIES, INC.
By: XXXXX X. XXXXXXX
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Title: Vice President and Treasurer
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KEYBANK NATIONAL ASSOCIATION
By: XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: Commercial Banking Officer
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