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EXHIBIT 10.2
FIRST AMENDMENT TO
LIMITED FORBEARANCE AGREEMENT
THIS FIRST AMENDMENT TO LIMITED FORBEARANCE AGREEMENT (the
"Amendment"), dated as of February 28, 2001, is by and among Xxxxxxxx
Manufacturing Company, Inc. ("Borrower"), the financial institutions listed on
the signature pages hereof (collectively, the "Lenders"), and Bank of America,
N.A., as Administrative Agent ("Administrative Agent") for the Lenders.
RECITALS:
A. Borrower, Administrative Agent and Lenders have entered into that
certain Limited Forbearance Agreement (the "Agreement") dated as of February 14,
2001.
B. Borrower, Westar Capital II LLC and Westar Capital have requested
that Lenders amend the Agreement, and Lenders have agreed to do so upon the
terms herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
Amendments
2.1 Amendment to Schedule 1. Effective as of the date hereof through
and including March 12, 2001, Schedule 1 to the Agreement is hereby amended to
add thereto the following:
"3. Existing Events of Default under Section 8.1(o) of the
Credit Agreement by reason of the Specified Investors' failure to make
the payments required under the Support Agreement for Borrower's fiscal
quarter ended December 30, 2000."
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders and the
Administrative Agent that:
3.1 Authorization; No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower of its
obligations under the Credit Agreement have been duly authorized by all
necessary corporate action, do not require any filing or registration with or
approval or consent of any governmental agency or authority, do not and will not
conflict with, result in any violation of, or constitute any default under any
provision of the certificate of incorporation or by-laws of the Borrower or any
material agreement or other document binding upon or applicable to the Borrower
(or any of its properties) or any law or governmental regulation or court decree
or order applicable to the Borrower, and will not result in or require the
creation or imposition of any Lien on any of the properties of the Borrower
pursuant to the provisions of any agreement binding upon or applicable to the
Borrower.
3.2 Due Execution; Enforceability. This Amendment has been duly
executed and delivered by the Borrower and, together with the other Loan
Documents, is a legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms subject, as to enforcement only, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of the rights of creditors generally and to general principles of
equity (regardless of whether enforcement is sought in equity or at law).
3.3 Reaffirmation of Representations and Warranties. The
representations and warranties contained in the Credit Agreement and the other
Loan Documents (except for those contained in Sections 4.1(k) and 4.1(u) of the
Credit Agreement, Section 2.1(c) of the Deeds of Trust, and, solely as a result
of the Subject Events, Section 4.1(o) of the Credit Agreement) are true and
correct in all material respects on the date of this Amendment after giving
effect to the effectiveness hereof (other than any such representations and
warranties that by their terms refer to a specific date, in which case as of
such specific date).
ARTICLE IV
Conditions Precedent
This Amendment shall become effective as of February 28, 2001, upon
satisfaction of all of the following conditions (such date is herein called the
"Agreement Effective Date"):
4.1 Receipt of Agreement. The Administrative Agent shall have received
counterparts of this Amendment sufficient in number to provide one for each
Lender, duly executed by the Borrower, Determining Lenders, the Administrative
Agent, Westar Capital II LLC, and Westar Capital.
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4.2 Default. No Default shall have occurred and be continuing other
than any Default which results solely from the Subject Events.
4.3 Cooperation. The Borrower shall have cooperated with Financial
Advisor and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. in all of their due diligence
inquiries.
4.4 Additional Information. The Administrative Agent shall have
received such additional documents, instruments and information as the
Administrative Agent or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., may
reasonably request.
ARTICLE V
Miscellaneous.
5.1 Expenses. The Borrower agrees to pay on demand all reasonable costs
and expenses of the Administrative Agent (including fees, charges and expenses
of counsel for the Administrative Agent and the Financial Advisor) in connection
with the preparation, negotiation, execution, delivery and administration of
this Amendment and the Agreement and all other instruments or documents provided
for herein or therein or delivered or to be delivered hereunder or in connection
herewith or therewith. All obligations provided in this Section 5.1 shall
survive any termination of this Agreement and the Credit Agreement.
5.2 Captions. Section captions used in this Agreement are for
convenience only and shall not affect the construction of this Amendment.
5.3 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES. Wherever possible each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable laws,
but if any provision of this Amendment shall be prohibited by or invalid under
such laws, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
5.4 Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered (including by facsimile),
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same amendment. Telecopies of signatures shall be
binding and effective as originals.
5.5 Reference to Loan Documents. The Credit Agreement and the other
Loan Documents shall remain in full force and effect and are hereby ratified in
all respects. The Borrower hereby additionally ratifies and confirms its
obligations pursuant to the Temporary Credit Facility and all documents and
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instruments executed pursuant thereto or in connection therewith and further
agrees that its obligations thereunder are not subject to any claim, offset,
defense or counterclaim.
5.6 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns, and shall inure to
the sole benefit of the parties hereto and the successors and assigns of the
Administrative Agent and the Lenders. Notwithstanding the foregoing, the
Borrower shall not assign its rights or duties hereunder without the consent of
the Administrative Agent and the Lenders.
5.7 RELEASE.
(a) The Borrower hereby unconditionally and irrevocably
remises, acquits, and fully and forever releases and discharges the
Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their
respective officers, servants, employees, agents, attorneys,
principals, directors and shareholders, and their respective heirs,
legal representatives, successors and assigns (collectively, the
"Released Lender Parties") from any and all claims, demands, causes of
action, remedies, suits, damages and liabilities (collectively, the
"Borrower Claims") of any nature whatsoever, whether now known,
suspected or claimed, whether arising under common law, in equity or
under statute, which the Borrower ever had or now has against the
Released Lender Parties which may have arisen at any time on or prior
to the date of this Agreement and which were in any manner related to
any of the Loan Documents or the enforcement or attempted enforcement
by the Administrative Agent or the Lenders of rights, remedies or
recourses related thereto.
(b) The Borrower covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or
prosecuted against any of the Released Lender Parties any action or
other proceeding based upon any of the Borrower Claims which may have
arisen at any time on or prior to the date of this Agreement and were
in any manner related to any of the Loan Documents.
(c) The agreements of the Borrower set forth in this Section
5.7 shall survive termination of this Agreement.
5.8 Acknowledgment of the Borrower. The Borrower acknowledges and
agrees that the Lenders and the Administrative Agent executing this Amendment
have done so in their sole discretion and without any obligation. The Borrower
further acknowledges and agrees that any action taken or not taken by the
Lenders or the Administrative Agent prior to, on or after the date hereof shall
not constitute a waiver or modification of any terms, covenant or provision of
any Loan Document other than as specified herein or prejudice any rights or
remedies other than as specified herein which the Administrative Agent or any
Lender now has or may have in the future under any Loan Document, applicable law
or otherwise, all of
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which rights and remedies are expressly reserved by the Administrative Agent and
the Lenders. The Borrower hereby ratifies and confirms its obligations under the
Loan Documents.
5.9 Loan Document. This Amendment is a Loan Document and is subject to
all provisions of the Credit Agreement applicable to Loan Documents, all of
which are incorporated in this Amendment by reference the same as if set forth
in this Amendment verbatim.
5.10 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES 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.
[Balance of this Page Intentionally Left Blank]
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Executed and delivered as of the day and year first above written.
BORROWER:
XXXXXXXX MANUFACTURING COMPANY, INC.
By /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: Vice President and Chief
Financial Officer
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as
Administrative Agent
By /s/ XXXX X. XXXXXXX III
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XXXX X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
LENDERS
BANK OF AMERICA, N.A.
By /s/ XXXX X. XXXXXXX III
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By
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Name:
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Title:
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By
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Name:
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Title:
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
COMERICA BANK
By /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Vice President
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
HSBC BANK USA
By /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
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Title: Senior Vice President
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
IMPERIAL BANK
By
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Name:
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Title:
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
ARCHIMEDES FUNDING, LLC.
BY: ING Capital Advisors LLC,
as Collateral Manager
By /s/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
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Title: Vice President
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
ML CLO XII PILGRIM AMERICA (CAYMAN) Ltd.
By: ING Pilgrim Investments Inc.,
as its investment manager
By /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: Vice President
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
SUN AMERICA CORP. FINANCE
By
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Name:
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Title:
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
LONG DRIVE MANAGEMENT
By
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Name:
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Title:
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Reference is made to that certain Limited Forbearance Agreement (as
amended to date, the "Agreement") dated as of February 14, 2001, among Xxxxxxxx
Manufacturing Company, Inc., Bank of America, N.A., as Administrative Agent, and
the Lenders party thereto. Reference is also hereby made to that certain Credit
Agreement dated as of August 12, 1999, among the Borrower, Bank of America, N.A.
as Administrative Agent, and the lenders party thereto. Bank of America, N.A.,
as Administrative Agent and as the sole Lender thereunder hereby agrees to
forbear from exercising the rights and remedies available to them with respect
to the Borrower only (and not with respect to any other Obligor as defined
therein or with respect to the Senior Subordinated Notes or the holders thereof)
under such Credit Agreement and the other Loan Documents as defined therein as a
result of Events of Default which exist thereunder solely as a result of the
Subject Events for the period and to the extent specified in this Agreement.
BANK OF AMERICA, N.A., as
Administrative Agent and as Lender
By /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to First Amendment to Limited Forbearance Agreement
dated as of February 28, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank
of America, N.A., as Administrative Agent, and the Lenders party thereto.
ACKNOWLEDGED AND AGREED to by the following Persons, each of whom
hereby acknowledges and agrees that its obligations under the Support Agreement
are not released, diminished, impaired, reduced, or otherwise adversely affected
by the Agreement as amended hereby, and consents and agrees to this Amendment's
execution and delivery.
WESTAR CAPITAL II LLC
By /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Managing Member
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WESTAR CAPITAL
By /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: Managing Partner
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