THIRD AMENDMENT TO LOAN AGREEMENT AND GUARANTY
EXECUTION
COPY
THIRD
AMENDMENT TO LOAN AGREEMENT AND GUARANTY
This
THIRD AMENDMENT TO LOAN AGREEMENT AND GUARANTY, dated as of April 19, 2006
(this
“Amendment”),
in
respect of and to the Loan Agreement and Guaranty, dated as of March 24, 2005,
among Xxxxxx Xxxxxxx LLC, Xxxxxx Xxxxxxx USA Corporation, Xxxxxx Xxxxxxx North
America Corp., Xxxxxx Xxxxxxx Energy Corporation and Xxxxxx Xxxxxxx Inc., as
Borrowers, the Guarantors party thereto, as Guarantors, the Lenders party
thereto, as the Lenders, Xxxxxx Xxxxxxx & Co. Incorporated, as the
Collateral Agent, Xxxxx Fargo Foothill, Inc. as Administrative Agent and Xxxxxx
Xxxxxxx Senior Funding, Inc., as Documentation Agent, Syndication Agent, Sole
Lead Arranger and Sole Lead Bookrunner, as amended by the First Amendment to
Loan Agreement and Guaranty dated as of August 4, 2005 and the Second Amendment
to Loan Agreement and Guaranty dated as of October 17, 2005 (the “Loan
Agreement”).
Capitalized terms not otherwise defined herein shall have the same meanings
as
set forth in the Loan Agreement.
WITNESSETH:
WHEREAS,
the Administrative Borrower and the Required Lenders wish to amend Section
7.7(a)(v)(V) of the Loan Agreement to clarify the meaning of market value used
therein and to provide the ability for the Borrower to make a “clean up” call
for certain Indebtedness with an outstanding aggregate balance of less than
$15,000,000; and
WHEREAS,
the Administrative Borrower and the Required Lenders have agreed to the
requested amendments on the terms and conditions set forth herein;
NOW
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration provided by each party to the other, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION
1. Amendments
.
Subject
to the satisfaction of the conditions precedent set forth in Section 2, the
Loan Agreement is hereby amended as of the date hereof in accordance with this
Section 1.
(a)
Section 1.1 of the Loan Agreement is hereby amended by adding the following
new
definition in proper alphabetical order: ““Indebtedness
Market Value”,
as
used in Section 7.7(a)(v)(V) of this Loan Agreement, means the fair market
value, as determined by the Board of Directors of Parent in the exercise of
its
reasonable business judgment as of the date of such determination, of
Indebtedness permitted to be prepaid, redeemed, defeased, purchased or otherwise
acquired under Section 7.7.(a)(v)(V), provided that the Indebtedness is in
fact
acquired within 60 days of the date of such determination.”
(b)
Section 7.7(a)(v)(V) of the Loan Agreement is hereby amended to delete it in
its
entirety and replace it with: “(V) the amount paid in respect of such
prepayment, redemption, defeasance, purchase or other acquisition of any such
Indebtedness does not exceed (A) in the case of any Indebtedness, the
outstanding aggregate balance of which is $15,000,000 or more, the lesser of
(x)
the principal amount of such Indebtedness plus any premium required to be paid
and any accrued and unpaid interest thereon or (y) the Indebtedness Market
Value
of such Indebtedness, or (B) in the case of Indebtedness, the outstanding
aggregate balance of which is less than $15,000,000, the greater of (x) the
principal amount of such Indebtedness plus any premium required to be paid
and
any accrued and unpaid interest thereon, or (y) the Indebtedness Market Value
of
such Indebtedness”.
SECTION
2. Conditions
of Effectiveness.
This
Amendment shall become effective when, and only when, the Administrative Agent
shall have received counterparts of this Amendment executed by the
Administrative Borrower and the Requisite Lenders and Agents shall have received
such other documents and instruments as Agents shall have requested. This
Amendment is subject to the provisions of Section 15.1 of the Loan
Agreement.
SECTION
3. Representations
and Warranties of Administrative Borrower.
The
Administrative Borrower, on behalf of itself and the Borrower Parties, hereby
represents and warrants in favor of the Lenders and the Agents
that:
(a)
As of
the date hereof, Borrower Parties have made all payments required under ERISA
and other Applicable Law to the Xxxxxx Xxxxxxx Salaried Employees Pension
Plan.
(b)
This
Amendment has been executed and delivered by duly authorized representatives
of
the Administrative Borrower, and the Loan Agreement, as modified and amended
by
this Amendment, constitutes a legal, valid and binding obligation of each
Borrower Party, and is enforceable against each Borrower Party in accordance
with its terms.
(c)
Immediately after giving effect to this Amendment, no Default or Event of
Default has occurred or is continuing.
(d)
All
of the representations and warranties of each Borrower Party contained in the
Loan Agreement, as modified and amended hereby, continue to be true and correct
as of the date hereof in all material respects as though made on and as of
such
date.
SECTION
4. Reference
to and Effect on the Loan Agreement.
(a)
Except as expressly amended or otherwise modified by this Amendment, the Loan
Agreement and all other terms and provisions thereof shall continue in full
force and effect in accordance with their respective terms, and the Loan
Agreement is hereby in all respects ratified and confirmed. This Amendment
shall
be deemed to be a Loan Document for all reasons.
(b)
The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of
any Lender or any Agent under, or amend, supplement or modify, any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
2
SECTION
5. Costs
and Expenses.
The
Administrative Borrower agrees to pay on demand all costs and expenses of any
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for any
Agent).
SECTION
6. Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one
and
the same agreement. Delivery of an executed counterpart of a signature page
to
this Amendment by telecopier or facsimile shall be effective as delivery of
a
manually executed counterpart of this Amendment.
SECTION
7. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
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