AMENDMENT NO. 1 AND LIMITED WAIVER
TO
POST-PETITION LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 1 AND LIMITED WAIVER TO POST-PETITION LOAN AND
SECURITY AGREEMENT (this "Amendment") is dated as of March 31, 2003, is among
the Lenders, BANK OF AMERICA, N.A., as agent for the Lenders ("Agent"), X.X.
XXXXX & CO. (the "Company") and the Subsidiaries of X.X. Xxxxx and Co. parties
hereto (collectively, the "Borrowers").
WHEREAS, the parties hereto are parties to a Post-Petition Loan and
Security Agreement dated as of April 1, 2001 (the "Loan Agreement"); and
WHEREAS, the parties hereto desire to amend the Loan Agreement as
herein set forth:
NOW, THEREFORE, for and in consideration of the mutual covenants set
forth herein and in the Loan Agreement, and for other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Amendments.
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(a) the introductory paragraph to the Loan Agreement is hereby
amended by deleting the number "355" appearing in the fourth line
therein and inserting "335" in its place.
(b) Section 1.4(a) of the Loan Agreement is hereby amended by
deleting the amount "$15,000,000" which appears therein and inserting
"$25,000,000" in its place.
(c) Section 1.7(c) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
(c) Location of Collateral Each Borrower represents and
warrants to the Agent and the Lenders that: (1) Schedule 1.7
sets forth a correct and complete list of each Borrower's
state of organization, organizational identification number
(if one is issued by such Borrower's state of organization),
chief executive office, the location of its books and records,
the locations of its Collateral, and the locations of all of
such Borrower's other places of business (other than in each
case (i) locations of real property where no Borrower has any
operations and where no Collateral (other than such real
property) is located, (ii) locations of Inventory which have
been described to the Agent in writing (including, without
limitation, in connection with the delivery of a Borrowing
Base Certificate) and (iii) locations of Collateral (other
than Inventory or Eligible Fixed Assets) which have been
disclosed to the Agent pursuant to the then most recent
Quarterly Location Schedule delivered to the Agent pursuant
hereto); and (2) Schedule 1.7
correctly identifies any of such facilities and locations that
are not owned by a Borrower and sets forth the names of the
owners and lessors or sublessors of such facilities and
locations. Each Borrower covenants and agrees that it will not
(i) maintain any Collateral at any location other than those
locations listed for such Borrower on Schedule 1.7 (other than
(A) locations of Collateral consisting solely of real property
at which no Borrower has any operations, (B) locations of
Inventory which have been described to the Agent in writing
(including, without limitation, in connection with the
delivery of a Borrowing Base Certificate) and (C) locations of
Collateral (other than Inventory and Eligible Fixed Assets)
which have been disclosed to the Agent pursuant to the most
recent Quarterly Location Schedule delivered to the Agent
pursuant hereto), (ii) change the state of organization or the
location of its chief executive office from the location
identified in Schedule 1.7, unless it gives the Agent at least
thirty (30) days' prior written notice thereof and executes
any and all financing statements and other documents that the
Agent reasonably requests in connection therewith. In
addition, within 45 days of the end of each calendar quarter,
the Borrowers shall deliver to the agent a schedule (a
"Quarterly Location Schedule") which lists the locations of
the Collateral.
(d) Section 1.7(g) of the Loan Agreement is hereby amended by
(i) deleting the term "20th" each time it appears therein and inserting
the term "25th" in its place and (ii) deleting the phrase "an aging"
appearing in clause (2) therein and inserting the phrase "a list" in
its place.
(e) Section 1.7(h)(1) of the Loan Agreement is hereby amended
by inserting (i) the parenthetical "(other than the Borrowers' Accounts
which are not Eligible Accounts as a result of clause (h) of the
definition of "Eligible Accounts" contained herein)" immediately
following the phrase "with respect to the Borrowers' Accounts" which
appears therein and (ii) the phrase ", or as directed by," immediately
following the phrase "goods will have been delivered to" appearing in
clause (v) thereof.
(f) Section 1.7(i)(1) of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"(l) Each Borrower represents and warrants to the Agent and
the Lenders and agrees with the Agent and the Lenders that all
of the Inventory owned by each Borrower is and will be held
for sale or lease, or to be furnished in connection with the
rendition of services, in the ordinary course of each
Borrower's business, and is and will be fit for such purposes,
except for damaged or defective goods arising in the ordinary
course of such Borrower's business. Each Borrower will keep
its Inventory in good and marketable condition, except for
damaged or defective goods or goods that
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become obsolete or slow-moving to the extent such obsolete or
slow moving goods are not Eligible Inventory as a result of
clause (f) or clause (g) of the definition of "Eligible
Inventory" contained herein, in each case, arising in the
ordinary course of such Borrower's business. No Borrower will,
without the prior written consent of the Agent, acquire or
accept any goods that, if owned by such Person, would
constitute Inventory of such Person, on consignment or
approval other than goods that are identifiable by, and
segregated from other goods owned by, such Borrower, with a
fair market value not in excess of $7,500,000 in the aggregate
at any one time. Each Borrower agrees that all Inventory
produced by such Borrower in the United States of America will
be produced in accordance with the Federal Fair Labor
Standards Act of 1938, as amended, and all rules, regulations,
and orders thereunder. Each Borrower will conduct a physical
count of the Inventory at least once per Fiscal Year, and
after and during the continuation of an Event of Default, at
such other times as the Agent requests. The Borrowers will
maintain a perpetual inventory reporting system at all times.
No Borrower will, without the Agent's written consent,
transfer any Inventory on a xxxx-and-hold, guaranteed sale,
sale and return, sale on approval, consignment, or other
repurchase or return basis, other than Inventory having an
aggregate book value at any time not to exceed $5,000,000 (it
being acknowledged and agreed that no such Inventory, whether
or not in excess of such amount, shall constitute "Eligible
Inventory" as defined herein)."
(g) Section 1.7(j)(1) and (2) of the Loan Agreement are hereby
amended and restated in their entirety to read as follows:
(1) Each Borrower represents and warrants to the Agent and the
Lenders and agrees with the Agent and the Lenders that all of
the Equipment owned by such Borrower is and will be used or
held for use in such Borrower's business, and is and will be
fit for such purposes, except for obsolete, damaged,
non-functioning or Equipment that has been replaced being held
in the ordinary course of business pending repair or disposal.
Each Borrower shall keep and maintain its Equipment in good
operating condition and repair (ordinary wear and tear
excepted) and shall make all necessary replacements thereof.
(2) No Borrower shall permit any Equipment to become a fixture
with respect to real property or to become an accession with
respect to other personal property with respect to which real
or personal property the Agent does not have a Lien. No
Borrower will, without the Agent's prior written consent,
alter or remove any
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identifying symbol or number on any of such Borrower's
Equipment constituting Collateral.
(h) Section 1.7(m) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(m) Power Of Attorney. Each Borrower hereby appoints the
Agent and the Agent's designee as such Borrower's attorney,
with power: (a) to endorse such Borrower's name on any checks,
notes, acceptances, money orders, or other forms of payment or
security that come into the Agent's or any Lender's
possession; (b) to sign such Borrower's name on any invoice,
xxxx of lading, warehouse receipt or other negotiable or
non-negotiable Document constituting Collateral, on drafts
against customers, on assignments of Accounts, on notices of
assignment, financing statements and other public records and
to file any such financing statements by electronic means with
or without a signature as authorized or required by applicable
law or filing procedure; (c) to the extent not prohibited by
the Bankruptcy Court, notify the post office authorities to
change the address for delivery of such Borrower's mail to an
address designated by the Agent and to receive, open and
dispose of all mail addressed to such Borrower; (d) to send
requests for verification of Accounts to customers or Account
Debtors; (e) to complete in the Borrower's name or the Agent's
name, any order, sale or transaction, obtain the necessary
Documents in connection therewith, and collect the proceeds
thereof; (f) to clear Inventory through customs in such
Borrower's name, the Agent's name or the name of the Agent's
designee, and to sign and deliver to customs officials powers
of attorney in such Borrower's name for such purpose; and (g)
to do all things necessary to carry out this Agreement. Each
Borrower ratifies and approves all acts of such attorney in
connection with this Section 1.7(m). None of the Lenders or
the Agent nor their attorneys will be liable for any acts or
omissions or for any error of judgment or mistake of fact or
law except for their gross negligence or willful misconduct.
This power, being coupled with an interest, is irrevocable
until this Agreement has been terminated and the Obligations
have been fully satisfied. Except with respect to the power
granted to the Agent and the Agent's designees in clause (d)
above, the Agent covenants, and the Lenders acknowledge and
agree, that the Agent shall not exercise the rights granted to
it under this Section 1.7(m) unless an Event of Default exists
and is continuing."
(i) Section 1.7(o) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
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"(o) Patent, Trademark And Copyright Collateral.
(1) This Agreement is effective to create a valid and
continuing Lien on and, together with the Final Order, as
applicable, perfected Liens in favor of Agent on each
Borrower's patents, trademarks and copyrights.
(2) Each Borrower shall notify Agent promptly if it
knows or has reason to know that any application or
registration relating to any patent, trademark or copyright
(now or hereafter existing) material to such Borrower's
business may become abandoned or dedicated, or of any adverse
determination or development (including the institution of, or
any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United
States Copyright Office or any court) regarding such
Borrower's ownership of any patent, trademark or copyright
material to such Borrower's business, its right to register
the same, or to keep and maintain the same.
(3) Upon request of Agent and, in any event, in
conjunction with, and within the time provided for, the
delivery of the financial projections and capital expenditure
budget required pursuant to Section 5.2(f), each Borrower
shall provide Agent with a list of its applications for
patents and for registrations of trademarks and copyrights
with the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency, and,
upon request of Agent, each Borrower shall execute and deliver
any and all patent security agreements, copyright security
agreements or trademark security agreements as Agent may
request to evidence Agent's Lien on such patent, trademark or
copyright, and the General Intangibles of each Borrower
relating thereto or represented thereby.
(4) Each Borrower shall take all actions that it
deems necessary or advisable or as requested by Agent to
maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of such
Borrower's patents, trademarks and copyrights (now or
hereafter existing), including the filing of applications for
renewal, affidavits of use, affidavits of noncontestability
and opposition and interference and cancellation proceedings,
unless such Borrower shall reasonably determine that such
patent, trademark or copyright is not material to the conduct
of its business or such Borrower advises the Agent in writing
that such Borrower in the exercise of its reasonable business
judgment is not going to maintain or pursue any such
application or registration.
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(5) In the event that any of the material patent,
trademark or copyright Collateral is infringed upon, or
misappropriated or diluted by a third party, the applicable
Borrower shall notify Agent promptly after such Borrower
learns thereof. Each Borrower shall, unless it shall
reasonably determine that such patent, trademark or copyright
Collateral is in no way material to the conduct of its
business or operations or such Borrower advises the Agent in
writing that such Borrower in the exercise of its reasonable
business judgment is not going to xxx for infringement,
misappropriation or dilution, promptly xxx for infringement,
misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation or dilution,
and shall take such other actions as Agent shall reasonably
deem appropriate under the circumstances to protect such
patent, trademark or copyright Collateral."
(j) Section 1.7(r)(1) of the Loan Agreement is hereby amended
by inserting the phrase "in connection with such sale" immediately
after the word "advisable" in the last sentence thereof.
(k) Section 2.1(a) of the Loan Agreement is hereby amended by
amending and restating the last two sentences thereof to read as
follows:
The Borrowers shall pay to the Agent, for the ratable benefit
of Lenders, interest accrued on all Base Rate Loans in arrears
on the first day of each month hereafter and on the
Termination Date. The Borrowers shall pay to the Agent, for
the benefit of Lenders, interest on all LIBOR Rate Loans in
arrears on each LIBOR Interest Payment Date.
(l) Section 2.5 of the Loan Agreement is hereby amended by
amending and restating in its entirety the first sentence thereof to
read as follow:
"2.5 Unused Line Fee. On the first day of each month and on
the Termination Date, the Borrowers jointly and severally
agree to pay to the Agent, for the account of the Lenders, in
accordance with their respective Pro Rata Shares, an unused
line fee (the "Unused Line Fee") equal to (x) the product of
(i) three-eighths of one percent (.375%) per annum at all
times that the Average Daily Outstanding Exposure is equal to
or greater than $100,000,000 (ii) one half of one percent
(.50%) per annum at all times that the Average Daily
Outstanding Exposure is equal to or greater than $50,000,000
but less than $100,000,000 or (iii) five eights of one percent
(.625%) per annum at all times that the Average Daily
Outstanding Exposure is less than $50,000,000, in each case,
multiplied by (y) the amount by which the Maximum Revolver
Amount exceeded the sum of the average daily outstanding
amount
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of Revolving Loans and the average daily undrawn face
amount of outstanding Letters of Credit during the immediately
preceding month or shorter period if calculated for the first
month hereafter or on the Termination Date. The Unused Line
Fee shall be computed on the basis of a 360-day year for the
actual number of days elapsed. All principal payments received
by the Agent shall be deemed to be credited to the Borrowers'
Loan Account immediately upon receipt for purposes of
calculating the Unused Line Fee pursuant to this Section 2.5."
(m) Section 4.2(a) of the Loan Agreement is hereby amended by
deleting the phrase "any Lender" appearing in the fourth line therein
and inserting the phrase "such Lender" in its place.
(n) Section 5.2(b), (c),(d) and (e) of the Loan Agreement are
hereby amended and restated in their entirety to read as follows:
"(b) As soon as available, but in any event not later than
thirty (30) days after the end of each month, (i) unaudited
balance sheets of the Borrowers on a consolidated basis as at
the end of such month and as at the end of the prior Fiscal
Year, (ii) consolidated unaudited income statements for the
Borrowers on a consolidated basis for such month and for the
period from the beginning of the Fiscal Year to the end of
such month, and for the corresponding periods in the prior
Fiscal Year, and (iii) unaudited cash flow statements for the
Borrowers on a consolidated basis for such month, for the
period from the beginning of the Fiscal Year to the end of
such month, and for the period from the Petition Date until
the end of such month, all in reasonable detail, fairly
presenting the financial position and results of operations of
the Borrowers on a consolidated basis as at the date thereof
and for such periods, and prepared in accordance with GAAP
(except for the absence or abbreviation of footnotes and
subject to normal year-end adjustments) applied consistently
with the audited Financial Statements required to be delivered
pursuant to Section 5.2(a). The Borrower Representative, on
behalf of the Borrowers, shall certify by a certificate signed
by its chief financial officer that all such statements have
been prepared in accordance with GAAP (except for the absence
or abbreviation of footnotes and subject to normal year-end
adjustments) and present fairly the financial position of the
Borrowers on a consolidated basis as at the dates thereof and
the results of operations of the Borrowers on a consolidated
basis for the periods then ended.
(c) [Intentionally Omitted]
(d) [Intentionally Omitted]
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(e) (i) Within thirty (30) days after the end of each month
(other than each December) (and within sixty (60) days after
the end of each December), a certificate of the Borrower
Representative signed by its chief financial officer setting
forth in reasonable detail the calculations required to
establish that the Borrowers were in compliance with the
covenant set forth in Section 7.22 for the twelve month period
ended at the end of such month and (ii) within sixty (60) days
after the end of each fiscal quarter a certificate of the
Borrower Representative signed by its chief financial officer
stating that, except as explained in reasonable detail in such
certificate, (A) all of the representations and warranties of
the Borrowers contained in this Agreement and the other Loan
Documents are correct and complete in all material respects as
at the last day of such quarter as if made at such time,
except for those that speak as of a particular date, (B) the
Borrowers are, at the date of such certificate, in compliance
in all material respects with all of their respective
covenants and agreements in this Agreement and the other Loan
Documents, and (C) no Default or Event of Default then exists
or existed during the period covered by the Financial
Statements for such month. If such quarterly certificate
discloses that a representation or warranty is not correct or
complete, or that a covenant has not been complied with, or
that a Default or Event of Default existed or exists, such
certificate shall set forth what action the Borrowers have
taken or propose to take with respect thereto."
(o) Section 5.2(f) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(f) Not less than forty-five (45) days after the beginning of
each Fiscal Year, (i) an annual forecast (to include
forecasted consolidated balance sheets, income statements and
cash flow statements) for the Borrowers on a consolidated
basis as at the end of and for each fiscal quarter of such
Fiscal Year and (ii) an annual budget of capital expenditures
with respect to the Borrowers on a consolidated basis for such
Fiscal Year. The Borrowers shall notify the Agent to the
extent that the aggregate capital expenditures of the
Borrowers for any Fiscal Year exceeds 120% of the budgeted
amount as set forth in such budget for such Fiscal Year,
provided pursuant to this Section 5.2(f)."
(p) Section 5.2(g) of the Loan Agreement is hereby amended by
deleting the word "Promptly" and inserting the phrase "Upon the request
of the Agent, promptly" in its place.
(q) Section 5.2(h) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows.
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At the Agent's request, within ten Business Days after the
later of (i) the date on which the same are sent or (ii) the
date of such request, copies of all financial statements and
reports which the Company sends to its shareholders generally
relating to the business of the Company and its Subsidiaries,
and within ten Business Days after the later of (i) the date
on which the same are filed or (ii) the date of such request,
copies of all reports on Forms 10-K, 10-Q, 8-K, 8 and 10, and
Schedules 13D, 13E-3, 13E-4, 13-G, 14D-1 and 14D-9, or
successor forms or schedules, and the final prospectus in each
effective registration statement (other than registration
statements on Form S-8) and each post-effective amendment to
such registration statement which the Company may make to, or
file with, the Securities and Exchange Commission, and any
successor or analogous Governmental Authority.
(r) Section 5.2(i) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(i) As soon as available, but in any event not later than 15
days after any Borrower's receipt thereof, a copy of all
management reports and management letters prepared for the
Company and its consolidated Subsidiaries, by any independent
certified public accountants of any Borrower."
(s) Section 5.2(k)(ii) of the Loan Agreement is hereby amended
by deleting the phrase "fifteen (15)" which appears therein and
inserting the phrase "twenty-five (25)" in its place.
(t) Section 5.4 of the Loan Agreement is hereby amended by
inserting the phrase ",or cause to be provided," following the phrase
"shall provide" appearing in the fourth line therein:
(u) Section 6.12 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"6.12 Litigation. Except as set forth on Schedule 6.12, there
is no pending, or to the best of any Borrower's knowledge
threatened, action, suit, proceeding, or counterclaim against
the Company or any of its consolidated Subsidiaries before any
Governmental Authority or arbitrator or panels of arbitrators
that (i) may not be stayed as a result of the Bankruptcy Cases
and (ii) would reasonably be expected to have a Material
Adverse Effect.".
(v) Section 6.18 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"6.18 Taxes. Each Borrower and each Other Subsidiary have
filed all federal (or the equivalent thereof) and other tax
returns
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and reports required to be filed, and have paid all federal
and other taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties,
income or assets otherwise due and payable other than (a) in
the case of the Borrowers, such taxes, assessments, fees and
other governmental charges (i) the payment of which has been
stayed as a result of the Borrowers' status as
debtors-in-possession in the Bankruptcy Cases or by an order
of the Bankruptcy Court, (ii) that are not yet delinquent,
(iii) that are being contested in good faith and for which
adequate reserves have been established by the Borrowers in
accordance with GAAP, or (iv) any portion of such taxes,
assessments fees and other governmental charges not so paid to
the extent that and only to the extent that such unpaid amount
does not exceed $200,000 in the aggregate for all payments due
in any calendar year; and (b) in the case of the Other
Subsidiaries, such taxes, assessments fees and other charges
the nonpayment of which could not reasonably be expected to
have a Material Adverse Effect."
(w) Section 6.22 of the Loan Agreement is hereby amended by
inserting the phrase "as of the date of any such exhibit, report,
statement or certificate." immediately before the period at the end of
such Section 6.22.
(x) Section 6.26 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"6.26 Other Subsidiaries. Except for Advanced Refining
Technologies LLC, Advanced Refining Technologies LP and The
Separations Group, none of the Other Subsidiaries, excluding
the Foreign Subsidiaries, owns any material amount of assets
or has any material income. None of the Other Subsidiaries
owns any patents, trademarks or licenses therefore or other
assets that are material to the business operations of any
Borrower and which have not been made available to such
Borrower by license or other agreement reasonably acceptable
to the Agent."
(y) Section 7.5(b) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) With respect to the insurance maintained by the
Borrowers, the Borrowers shall cause the Agent, for the
ratable benefit of the Agent and the Lenders, to be named as
secured party or mortgagee and sole loss payee or additional
insured, in a manner acceptable to the Agent. Each policy of
insurance shall contain a clause or endorsement providing that
the insurer will endeavor to give not less than thirty (30)
days' (but which may be ten (10) days' for nonpayment of
premiums) prior written notice to the Agent in the
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event of cancellation of the policy for any reason whatsoever
(provided that such clause or endorsement may provide that the
insurer and its agents and representatives shall have no
obligation or liability for failure to give such notice). All
premiums for such insurance shall be paid by the Borrowers
when due, and certificates of insurance and, if requested by
the Agent or any Lender, photocopies of the policies, shall be
delivered to the Agent, in each case in sufficient quantity
for distribution by the Agent to each of the Lenders. If any
Borrower fails to procure such insurance or to pay the
premiums therefor when due, the Agent may, and at the
direction of the Majority Lenders shall, do so from the
proceeds of Revolving Loans."
(z) Section 7.7(a) is hereby amended by amending and restating
in its entirety the first sentence thereof to read as follows:
"The Borrowers shall, and shall cause each of their respective
Subsidiaries to, conduct their respective business in material
compliance with all Environmental Law applicable to it,
including those relating to the generation, handling, use,
storage and disposal of any Contaminant."
(aa) Section 7.22 is hereby amended and restated in its
entirety to read as follows:
7.22. EBITDAR. The Borrowers shall have EBITDAR, for the
twelve calendar month period ending on the last day of each
calendar month set forth below of not less than the amount set
forth below for such period:
Calendar Month EBITDAR
-------------- -------
April, 2003 through and including March, 2004 $90,000,000
April, 2004 through and including March, 2005 $95,000,000
April, 2005 and each month thereafter $100,000,000
(bb) Section 7.24(v)(a) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
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"(a) working capital and other general corporate purposes
arising after the Petition Date or approved by the Bankruptcy
Court,"
(cc) Section 7.26 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"7.26 Accounts. The Borrowers shall continue to cause all
proceeds of Accounts (other than Accounts that are not
Eligible Accounts as a result of clause (h) in the definition
of "Eligible Accounts" contained herein) to be forwarded to
lockbox accounts in existence on the date hereof and as
described as such on Schedule 6.23 hereof; provided, however,
that the Borrowers may add new lockbox accounts or close
existing lockbox accounts with the prior written consent of
the Agent as long as, with respect to any such new lockbox
accounts, a tri-party or other similar agreement in form and
substance satisfactory to the Agent is executed by the
applicable Borrower, depository bank and the Agent."
(dd) Section 8.2(d) is hereby amended and restated in its
entirety to read as follows:
"(d) The Final Order shall be in full force and effect and
shall not have been vacated, reversed, modified, amended or
stayed."
(ee) Annex A to the Loan Agreement is hereby amended by
amending and restating in their entirety the following definitions:
"Final Order" means the final order entered by the Bankruptcy
Court in connection with the Bankruptcy Cases, as amended by the
Amendment Order.
"LIBOR Interest Payment Date" means, with respect to a LIBOR
Rate Loan, the Termination Date and the last day of each Interest
Period applicable to such Loan.
"Restricted Investment" means, as to any Borrower, any
acquisition of property by such Person in exchange for cash or other
property, whether in the form of an acquisition of stock, debt, or
other indebtedness or obligation, or the purchase or acquisition of any
other property, or a loan, advance, capital contribution, or
subscription, including in connection with the organization, creation
or acquisition of any Subsidiary (each an "Investment"), except the
following: (a) acquisitions of Equipment and other capital assets in
the ordinary course of business of such Person; (b) acquisitions of
Inventory in the ordinary course of business of such Person; (c)
acquisitions of current assets acquired in the ordinary course of
business of such Person; (d) Investments in Cash Equivalents; (e)
Investments by any Borrower in any other Borrower, (f) extensions of
trade credit and prepaid expenses made in the ordinary course of
business, (g) (i) loans to officers of any Borrower in the ordinary
course of business, (ii) loans and advances to employees of any
Borrower for travel, entertainment and relocation expenses in the
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ordinary course of business and (iii) loans by any Borrower to
employees in connection with management incentive plans, provided that
the aggregate outstanding principal amount of all such loans and
advances made pursuant to this clause (g) shall not exceed $5,000,000
at any time; (h) loans, made while no Default or Event of Default has
occurred and is continuing, in an aggregate amount not to exceed
$11,000,000 at any time outstanding made to ART by X. X. Xxxxx &
Co.-Conn.; (i) loans, made while no Default or Event of Default has
occurred and is continuing, to The Separations Group in an aggregate
amount not to exceed $5,000,000 at any time outstanding; (j)
Investments outstanding on the Amendment No. 1 Closing Date and listed
on Schedule A-1; (k) Investments, made while no Default or Event of
Default has occurred and is continuing, not otherwise permitted
hereunder by any Borrower in any Other Subsidiary, provided that (A)
immediately prior to and immediately after giving effect to such
Investments, Availability equals or is greater than $125,000,000 and
(B) after giving effect to such Investments, the aggregate then
outstanding amount of all such Investments made pursuant to this clause
(k) subsequent to the Amendment No. 1 Closing Date shall not exceed (i)
$20,000,000 in the aggregate on a net annual cash flow basis in the
first twelve month period following the Amendment No. 1 Closing Date;
(ii) $40,000,000 in the aggregate on a net annual cash flow basis
cumulatively during the first twenty four month period following the
Amendment No. 1 Closing Date; and (iii) $60,000,000 in the aggregate on
a net annual cash flow basis cumulatively during the first thirty six
month period following the Amendment No. 1 Closing Date (it being
agreed that only $22,500,000 of this amount may be invested through
transactions which do not require and have not received approval of the
Bankruptcy Court); (l) Investments received in connection with the
collection of Accounts in the ordinary course of business; (m)
Investments received as consideration in connection with any asset sale
or other disposition of assets permitted hereunder; and (n) other
Investments not otherwise permitted hereunder made by any Borrower,
provided that, after giving effect thereto, the aggregate amount of all
such Investments made at any time after the Amendment No. 1 Closing
Date by all Borrowers under this clause (n) shall not exceed $1,000,000
at any time outstanding.
"Stated Termination Date" means April 1, 2006.
"Termination Date" means the earliest to occur of (i) the
Stated Termination Date, (ii) the date the Total Facility is terminated
either by the Borrowers pursuant to Section 3.2 or by the Majority
Lenders pursuant to Section 9.2, (iii) the date this Agreement is
otherwise terminated for any reason whatsoever pursuant to the terms of
this Agreement and (iv) the Effective Date (as defined in the Plan of
Reorganization) on which a Plan of Reorganization is approved by the
Bankruptcy Court.
(ff) Annex A to the Loan Agreement is hereby amended by
inserting the following definitions in their proper alphabetical order:
"Amendment No. 1 Closing Date" means March 31, 2003.
"Amendment Order" has the meaning set forth in that certain
Amendment No. 1 and Limited Waiver to Post-Petition Loan and
13
Security Agreement dated as of March 31, 2003 among the
Lenders, the Agent and the Borrowers.
(gg) The definition of "Adjusted Net Earnings from Operations"
set forth in Annex A to the Loan Agreement is hereby amended by
deleting the word "and" appearing before clause (g) therein and
inserting the following immediately before the period thereof:
"and (h) any non-cash charge for which any expenditure would
require Bankruptcy Court Approval (which non-cash charges
shall not be reduced for any such expenditure made pursuant to
Bankruptcy Court approval)."
(hh) The definition of "Eligible Inventory" set forth in Annex
A to the Loan Agreement is hereby amended by amending and restating in
its entirety clause (c) thereof to read as follows:
(c) that does not consist of finished goods, raw materials or
work in process;
(ii) The schedules attached hereto as Annex III shall amend
and restate in their entirety the corresponding schedules attached to
the Loan Agreement prior to giving effect to this Amendment.
2. Limited Waiver. Subject to the conditions precedent set forth below,
the Agent and the Lenders hereby waive any breach or violation of any Section of
the Loan Agreement arising or existing on or prior to the date hereof and to the
extent caused solely by the event or circumstances set forth opposite such
Section on Annex I attached hereto. This waiver shall be limited precisely as
written and shall not be deemed to (i) be a consent to any amendment, waiver or
modification of any other term or condition of the Loan Agreement or any other
Loan Document, except to the extent set forth herein or (ii) prejudice any right
or remedy that the Agent or the Lenders may have or may have in the future under
or in connection with the Loan Agreement or any other Loan Document.
3. Amendment Fees. The Borrowers, jointly and severally agree to pay
the Agent, on the date the Amendment Order is entered (all of which shall be
fully earned and nonrefundable as of such date):
(a) for the ratable benefit of the Lenders, a facility fee
(the "Facility Fee") is the amount of $1,250,000;
(b) for the Agent's sole account, a syndication fee (the
"Syndication Fee") in the amount of $375,000; and
(c) for the Agent's sole account, an administrative fee (the
"Administrative Fee"; together with the Facility Fee and the
Syndication Fee, collectively referred to as the "Amendment Fees") in
the amount of $225,000.
14
4. Conditions. (a) This Amendment shall be effective upon satisfaction
of the following conditions precedent:
(i) This Amendment shall have been executed by each party
hereto; and
(ii) The Agent shall have received a certificate from the
chief financial officer of the Company certifying that (i) immediately
after giving effect to this Amendment, all representations and
warranties made hereunder, in the Loan Agreement and in the other Loan
Documents shall be true and correct as if made on the date hereof, (ii)
the Borrowers have performed and complied with all covenants,
agreements and conditions contained herein which are required to be
performed or complied with by the Borrowers on or before the date
hereof and (iii) no Default or Event of Default shall have occurred and
be continuing after giving effect to this Amendment.
(b) The following shall be conditions precedent to the execution of
this Amendment:
(i) The Agent shall have received (i) copies of the articles
of incorporation or certificates of formation or other charter
documents of each Borrower, (ii) copies of the bylaws or other
similar agreement and all amendments thereto of each Borrower,
(iii) copies of resolutions of the Board of Directors or similar
managing body of each Borrower approving and adopting this
Amendment, the transactions contemplated herein and authorizing
execution and delivery thereof, in each case, of each Borrower and
certified by a secretary or assistant secretary of the Company to
be true and correct and in force and effect as of the date hereof,
(iv) a certificate of the Secretary or Assistant Secretary (or
equivalent thereof) of each Borrower certifying as to the
incumbency of the officers of each Borrower, and (v) an original,
duly certified as of a current date by the applicable Secretary of
State, of a good standing certificate issued by the Secretary of
the state of incorporation or organization of each Borrower;
(ii) The Borrowers shall have paid the Amendment Fees and all
other fees and expenses of the Agent and the Attorney Costs
incurred in connection with this Amendment and any of the Loan
Documents and the transactions contemplated thereby to the extent
invoiced;
(iii) The Agent shall have received evidence, in form, scope,
and substance, reasonably satisfactory to the Agent, of all
insurance coverage as required by the Loan Agreement;
(iv) The Agent and the Lenders shall have had an opportunity,
if they so choose, to examine the books of account and other
records and files of the Borrowers and to make copies thereof, and
to conduct a pre-extension audit which shall include, without
limitation, updated desktop fixed asset appraisals, verification of
Inventory, Accounts, and the Borrowing Base, and the results of
15
such examination and audit shall have been satisfactory to the
Agent and the Lenders in all respects;
(v) All proceedings taken in connection with the execution of
this Amendment and all documents and papers relating thereto shall
be satisfactory in form, scope, and substance to the Agent and the
Lenders;
(vi) The Agent shall have received a copy of the signed order
(the "Amendment Order") of the Bankruptcy Court in substantially
the form of Annex II hereto authorizing and approving the
transactions contemplated hereby. The Amendment Order (i) shall be
in form and substance satisfactory to the Agent, (ii) shall be
certified by the Clerk of the Bankruptcy Court as having been duly
entered, (iii) shall have authorized extensions of credit by the
Lenders in amounts up to $250,000,000, (iv) shall approve the
payment by the Borrowers of all of the fees set forth in Section 3
hereof and in Section 2.5 of the Loan Agreement as amended hereby,
and (v) shall be in full force and effect and shall not have been
vacated, reversed, modified, amended or stayed; and
(vii) The Agent shall have received an executed tri-party
agreements in form and substance satisfactory the Agent with
respect to lockbox accounts and other relevant accounts of the
Borrowers (which agreements shall provide that the Agent may after
the occurrence of an Event of Default, direct the applicable bank
to transfer funds from the applicable accounts as the Agent
directs).
5. Reference to and Effect Upon the Loan Agreement.
(a) Except as specifically amended above, the Loan Agreement and
the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Loan
Agreement as amended hereby.
6. Defined Terms. Except as otherwise defined herein, all defined
terms herein shall have the meanings ascribed thereto in the Loan Agreement.
7. Governing Law. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (PROVIDED THAT PERFECTION ISSUES WITH RESPECT TO ARTICLE 9 OF THE UCC MAY
GIVE EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9
OF THE UCC) OF THE STATE OF NEW YORK TO THE EXTENT NOT PREEMPTED BY FEDERAL
BANKRUPTCY LAWS; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
16
8. Headings. Section headings in this amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
(Signature Page Follows)
17
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BANK OF AMERICA, N.A.,
as Agent and Lender
By:
---------------------------------------
Name:
------------------------------------
Title:
------------------------------------
BORROWERS:
X. X. Xxxxx & Co.
A-1 Bit & Tool Co., Inc.
Alewife Boston Ltd.
Alewife Land Corporation
Amicon, Inc.
CB Biomedical, Inc.
CCHP, Inc.
Coalgrace, Inc.
Coalgrace II, Inc.
Creative Food 'N Fun Company
Darex Puerto Rico, Inc.
Del Taco Restaurants, Inc.
Ecarg, Inc.
Five Alewife Boston Ltd.
G C Limited Partners I, Inc.
G C Management, Inc.
GEC Management Corporation
GN Holdings, Inc.
GPC Thomasville Corp.
Gloucester New Communities Company, Inc.
Grace A-B Inc.
Grace X-X XX Inc.
Grace Chemical Company of Cuba
Grace Culinary Systems, Inc.
Grace Drilling Company
Grace Energy Corporation
Grace Environmental, Inc.
Grace Europe, Inc.
Grace H-G Inc.
Grace X-X XX Inc.
[Signature Page to Amendment No. 1 and Limited Waiver to
Post-Petition Loan and Security Agreement]
Grace Hotel Services Corporation
Grace International Holdings, Inc.
Grace Offshore Company
Grace PAR Corporation
Grace Petroleum Libya Incorporated
Grace Tarpon Investors, Inc.
Grace Ventures Corp.
Xxxxx Xxxxxxxxxx, Inc.
X. X. Xxxxx Capital Corporation
X. X. Xxxxx & Co.-Xxxx.
X. X. Xxxxx Land Corporation
Gracoal, Inc.
Gracoal II, Inc.
Guanica-Caribe Land Development
Corporation
Hanover Square Corporation
Homco International, Inc.
Kootenai Development Company
L B Realty, Inc.
Litigation Management, Inc.
Monolith Enterprises, Incorporated
Monroe Street, Inc.
MRA Holdings Corp.
MRA Intermedco, Inc.
MRA Staffing Systems, Inc.
Remedium Group, Inc.
Southern Oil, Resin & Fiberglass, Inc.
Water Street Corporation, each as a
Debtor and a Debtor-in-Possession
By:
------------------------------------
Its Senior Vice President or
Vice President
[Signature Page to Amendment No. 1 and Limited Waiver to
Post-Petition Loan and Security Agreement]
CC Partners, as a Debtor and Debtor-in-
Possession
By: MRA Staffing Systems, Inc.,
a General Partner
By:
----------------------------
Its:
---------------------------
By: CCHP, Inc., a General Partner
By:
----------------------------
Its:
---------------------------
Axial Basin Rand Company, as a Debtor and
Debtor-in-Possession
By:
----------------------------
Its:
---------------------------
By: Grace X-X XX, Inc., a General
Partner
By:
----------------------------
Its:
---------------------------
By: Grace A-B, Inc., a General
Partner
By:
----------------------------
Its:
---------------------------
Hayden-Gulch West Coal Company, as a
Debtor and Debtor-in-Possession
By: Grace H-G, Inc., a General
Partner
By:
----------------------------
Its:
---------------------------
By: Grace X-X XX, Inc., a General
Partner
By:
----------------------------
Its:
---------------------------
[Signature Page to Amendment No. 1 and Limited Waiver to
Post-Petition Loan and Security Agreement]
H-G Coal Company, as a Debtor and
Debtor-in-Possession
By: Coalgrace, Inc., a General
Partner
By:
----------------------------
Its:
---------------------------
By: Coalgrace II, Inc., a
General Partner
By:
----------------------------
Its:
---------------------------
Xxxxx and Xxxx, LLC, as a Debtor and
Debtor-in-Possession
By: X. X. Xxxxx & Co.-Conn.,
its sole member
By:
----------------------------
Its:
---------------------------
[Signature Page to Amendment No. 1 and Limited Waiver to
Post-Petition Loan and Security Agreement]
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By:
------------------------------------
Title:
--------------------------------
Address: 000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
Attention: Xxxx XxXxxx and Xxxx
Xxxx
Facsimile: (000) 000-0000 and
(000) 000-0000
GMAC COMMERCIAL CREDIT LLC
By:
------------------------------------
Title:
--------------------------------
Address: 1290 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
THE CIT GROUP/BUSINESS CREDIT
By:
------------------------------------
Title:
--------------------------------
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Title:
--------------------------------
Address: Xxx Xxxxx Xxxxxx Xxxx.
0xx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
BANK OF SCOTLAND
By:
------------------------------------
Title:
--------------------------------
Address: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx XxXxxxxx
Facsimile: (000) 000-0000
AmSouth Capital Corp.
By:
------------------------------------
Title:
--------------------------------
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
