[EXECUTION COPY]
AMENDMENT NO. 1
WAIVER
AND
JOINDER AGREEMENT
TO
LOAN AND SECURITY AGREEMENT
Dated as of April 21, 1998
THIS AMENDMENT NO. 1, WAIVER AND JOINDER AGREEMENT entered into as of April
21, 1998 by and between XXXXX INDUSTRIES, INC., a California corporation
("Xxxxx"), MERCER PRODUCTS COMPANY, INC., a New Jersey corporation ("Mercer"),
and NATIONSBANK, N.A., a national banking association, as the sole Lender under
the Loan Agreement (as hereinafter defined) and as agent for the Lenders (the
"Agent").
PRELIMINARY STATEMENT
Xxxxx and the Agent are parties to that certain Loan and Security Agreement
dated as of August 20, 1997 (the "Loan Agreement"; terms defined therein, unless
otherwise defined herein, being used herein as therein defined). In connection
with the Acquisition of Mercer by Xxxxx, Xxxxx has requested, among other
things, an increase in the amount of the Revolving Credit Facility, the
amendment of certain financial and other covenants under the Loan Agreement, a
waiver of any Default or Event of Default under the Loan Agreement occurring as
a result of the Mercer Transaction (as hereinafter defined) and that Mercer be
joined as a party to the Loan Agreement as a Borrowing Subsidiary so that, among
other things, the Receivables and Inventory of Mercer will be eligible to be
included in the Borrowing Base under the Loan Agreement, and the Agent has
agreed to amend the Loan Agreement as hereinafter set forth, upon and subject to
the terms and conditions of this Amendment No. 1.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the Loan Agreement, the mutual
covenants set forth therein and herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. AMENDMENTS TO LOAN AGREEMENT. Subject to the provisions of
Section 4 hereof, the Loan Agreement is hereby amended as follows:
(a) by amending the provisions of Section 1.1 DEFINITIONS thereof
(i) by amending clause (i) of the definition COLLATERAL in its entirety
to read as follows:
(i) all Real Estate as to which a Mortgage has been recorded,
(ii) by amending the definition REVOLVING CREDIT FACILITY by deleting the
figure "$15,000,000" appearing therein and substituting therefor the figure
"$25,000,000";
(iii) by amending the definition PERMITTED PURCHASE MONEY DEBT by deleting
the figure "$3,000,000" appearing in clause (c) thereof and substituting
therefor the figure "$10,000,000";
(iv) by amending the definition LETTER OF CREDIT FACILITY by deleting the
figure "$1,000,000" appearing therein and substituting therefor the figure
"$3,000,000";
(v) by amending the definition PERMITTED INVESTMENTS by deleting the
word "and" appearing at the end of clause (h) thereof, amending clause (i)
thereof in its entirety to read as follows:
(i) other Investments that do not exceed $7,500,000 in the
aggregate at any time outstanding; and
and inserting a new clause (j) at the end thereof to read in its entirety as
follows:
(j) Investments in connection with the Mercer Transaction.
(vi) by amending the definition SENIOR NOTE INDENTURE by adding
immediately before the period at the end thereof the phrase ", as amended by the
First Supplemental Indenture."
(vii) by adding the following definitions in appropriate alphabetical
order:
AMENDMENT NO. 1 EFFECTIVE DATE means the date on which Amendment No. 1
shall have become effective in accordance with its terms.
AMENDMENT NO. 1 means the Amendment No. 1, Waiver and Joinder Agreement to
Loan and Security Agreement executed and delivered by Burke, Mercer, the Agent
and the Lender on or before the Amendment No. 1 Effective Date.
CONSENT SOLICITATION STATEMENT means the Xxxxx Industries, Inc.
Solicitation of Consents to Indenture Amendments dated March 30, 1998.
FIRST SUPPLEMENTAL INDENTURE means the first supplemental indenture, dated
as of April 21, 1998, by and between Xxxxx Industries, Inc., the Subsidiary
Guarantors (as defined therein) and United States Trust Company of New York,
amending the Senior Notes Indenture.
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MERCER means Mercer Products Company, Inc., a New Jersey corporation, and
its successors and assigns.
MERCER ACQUISITION means the Acquisition by Xxxxx of 100% of the issued and
outstanding capital stock of Mercer pursuant to the Mercer Acquisition
Documents.
MERCER ACQUISITION AGREEMENT means the Stock Purchase Agreement by and
among Xxxxx, as purchaser, Sovereign Specialty Chemicals, Inc., as seller, and
Mercer, dated as of March 5, 1998 in the form delivered to the Agent on or prior
to the Amendment No. 1 Effective Date.
MERCER ACQUISITION DOCUMENTS means the Mercer Acquisition Agreement, and
any other agreement, document, certificate or instrument to be delivered in
connection with the Mercer Acquisition.
MERCER MORTGAGE means the Florida Mortgage, Security Agreement and
Assignment of Leases and Rents, or any replacement, modification or substitution
thereof, in form and substance satisfactory to the Agent, executed and delivered
by Mercer in favor of the Agent for the benefit of the Lenders, pursuant to
which the Xxxxxx Property is mortgaged to the Agent for the benefit of the
Lenders.
MERCER PLEDGE AGREEMENT means the Pledge Agreement, in form and substance
satisfactory to the Agent, executed and delivered by Xxxxx on or before the
Amendment No. 1 Effective Date in favor of the Agent for the benefit of the
Lenders, pursuant to which Xxxxx pledges all of the issued and outstanding
capital stock of Mercer.
XXXXXX REAL ESTATE means the Real Estate owned by Mercer located at 00000
Xxxxx Xxxx 00, Xxxxxxxx, Xxxx Xxxxxx, Xxxxxxx.
MERCER TRADEMARK ASSIGNMENT means the Assignment for Security-Trademarks,
dated on or before the Amendment No. 1 Effective Date, executed by Mercer in
form and substance satisfactory the Agent.
XXXXXX TRANSACTION means and includes, collectively, the transactions
contemplated by the Consent Solicitation Statement, the First Supplemental
Indenture, the Mercer Acquisition Documents, the New Senior Notes and the New
Senior Note Indenture, including the New Equity Issuance.
NEW EQUITY ISSUANCE means the issuance by Xxxxx of 3,000 shares of its
Preferred Stock for aggregate consideration in the amount of $3,000,000.
NEW SENIOR NOTES means Xxxxx'x Floating Interest Rate Senior Notes due 2007
in the original principal amount of $30,000,000, issued pursuant to the New
Senior Note Indenture, and any Exchange Notes (as defined in the New Senior Note
Indentures) issued in exchange therefor;
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NEW SENIOR NOTE INDENTURE means the Indenture dated as of April 21, 0000,
xxxxxxx Xxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, Trustee, relating to
the New Senior Notes.
(b) by amending the provisions of Article 8 AFFIRMATIVE COVENANTS by inserting
a new Section 8.10 MERCER MORTGAGE at the end thereof to read in its entirety as
follows:
SECTION 8.10 MERCER MORTGAGE. Upon the occurrence of any Default
or Event of Default, or at any time upon the written request of the Agent
or any Lender, provide each of the following to the Agent:
(a) a replacement Mercer Mortgage duly executed and delivered by
Mercer, in proper form for recording in the state of Florida;
(b) a fully paid mortgagee title insurance policy or, at the
option of the Lender, an unconditional commitment for the issuance thereof
with all requirements and conditions to the issuance of the final policy
deleted or marked satisfied, issued by a title insurance company
satisfactory to the Agent, in an amount equal to not less than the fair
market value of the Real Estate subject to the Mercer Mortgage, insuring
that the Mercer Mortgage creates a valid first lien on, and security title
to, the Xxxxxx Real Estate, with no survey exceptions and no other
exceptions which the Agent shall not have approved in writing;
(c) such materials and information concerning the Xxxxxx
Property as the Agent may require, including, without limitation,
certificates of occupancy covering the Xxxxxx Real Estate, and owner's
affidavits as to such matters relating to the Mercer Real Estate as the
Agent may request;
(d) a report from a qualified engineering firm or other
qualified consultant acceptable to the Agent with respect to an
investigation and assessment of the Mercer Real Estate, which shall be
based on a thorough review of past and present uses, occupants, ownership
and tenancy of the property, adjacent properties or upgradient properties
regarding (A) contact with local, state or federal agencies regarding known
or suspected hazardous material contamination of the property or other
properties in the area; (B) review of aerial photographs; (C) visual site
inspection noting unregulated fills, storage tanks or areas, ground
discoloration or soil odors; and (D) other investigative methods deemed
necessary by the consultant or the Agent to enable the consultant to
deliver a report in a form typically issued in connection with a "Phase 1"
environmental report;
(e) certificates or binders of insurance relating to each of the
policies of insurance required by the Mercer Mortgage, together with
mortgagee clauses satisfactory to the Agent; and
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(f) an amount equal to the recording for and expenses and all
documentary, stamp, intangibles recording and other taxes required to be
paid in connection with the recording of the Mercer Mortgage and such other
documents and instruments as the Agent may reasonably request in connection
with the Mercer Mortgage.
(c) by amending the provisions of Section 10.2 DEBT thereof by (i) amending
subsection (c) to read in its entirety as follows, "(c) Debt represented by the
Senior Notes and the New Senior Notes and Debt represented by unsecured
Guaranties of the Senior Notes and the New Senior Notes," and (ii) by deleting
the figure "$10,000,000" appearing in subsection (f) thereof and substituting
therefor the figure "$15,000,000".
(d) by amending the provisions of Section 10.4 INVESTMENTS thereof by deleting
the figure "$5,000,000" appearing in subsections (i) and (ii) thereof and in
each such instance substituting therefor the figure "$7,500,000".
(e) by amending the provisions of Section 10.8 TRANSACTIONS WITH AFFILIATES
thereof by deleting the word "and" appearing immediately before the beginning of
clause (viii), and inserting immediately before the period at the end thereof
the following: ", and (viii) payments to X. X. Xxxxxx & Company of (A) a
transaction fee of $500,000 payable on the Amendment No. 1 Effective Date, (B)
fees and expenses in connection with the Mercer Transaction and (C) an annual
management fee in addition to that permitted under clause (iii) above in an
amount not to exceed $250,000.
(f) by amending the provisions of Section 10.12 AMENDMENTS OF OTHER AGREEMENTS
thereof in its entirety to read as follows:
SECTION 10.12 AMENDMENTS OF OTHER AGREEMENTS. Amend the Senior
Notes, the Senior Note Indenture, the New Senior Notes, the New Senior Note
Indenture, or any related document.
(g) by amending the provisions of Section 11.2(b) OTHER REMEDIES thereof by
deleting the "and" at the end of clause (xi) thereof, substituting "; and" for
the period at the end of clause (xii) thereof and adding a new clause (xiii) at
the end thereof as follows:
(xiii) record the Mercer Mortgage and compel the Borrower to
provide the documentation required pursuant to SECTION 8.10.
Section 2. JOINDER. Mercer hereby covenants and agrees that from and
after the Amendment No. 1 Effective Date Mercer shall be deemed to be a
"Borrowing Subsidiary" under and as defined in the Loan Agreement, and shall
thereupon be bound by all of the terms and conditions of the Loan Agreement as
fully as if Mercer were an initial signatory thereto in the capacity of a
Borrowing Subsidiary.
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Section 3. WAIVER. Effective on the Amendment No. 1 Effective Date (as
hereinafter defined) the Agent and the Lender hereby waive any Default or
Event of Default occurring as a result of the Mercer Transaction.
Section 4. EFFECTIVENESS. The provisions of this Amendment No. 1
shall become effective on the date (the "Amendment No. 1 Effective Date") on
which the Agent receives or waives receipt each of the following in form and
substance satisfactory to the Agent:
(a) payment of a commitment fee in the amount of $100,000;
(b) four copies of this Amendment No. 1 duly executed by Xxxxx and Mercer;
(c) an amended and restated promissory note in the form attached hereto as
ANNEX 1 (the "Amended and Restated Revolving Credit Note"), with all blanks
appropriately completed, duly executed and delivered by Xxxxx and Mercer;
(d) a Consent and Confirmation of Guarantor in the form attached hereto as
ANNEX 2 duly executed and delivered by each of the Guarantors;
(e) the Mercer Pledge Agreement duly executed and delivered by Xxxxx and the
certificates representing the shares covered thereby, in form for transfer by
delivery or accompanied by duly executed stock powers in blank;
(f) certified copies of the articles of incorporation and by-laws of each of
Xxxxx and Mercer as in effect on the Amendment No. 1 Effective Date and all
corporate action, including shareholder approval, if necessary, taken by each of
Xxxxx and Mercer or its shareholders to authorize the transactions contemplated
by this Amendment No. 1 and the Mercer Transaction and the incumbency of
officers of each of Xxxxx and Mercer and, in the case of Mercer, the Borrowings
under the Loan Agreement;
(g) a certificate of the chief operating officer, president, vice
president-finance or other officers reasonably acceptable to the Agent of each
of Xxxxx and Mercer stating that, to the best of his knowledge and based on an
examination sufficient to enable him to make an informed statement,
(i) after giving effect to this Amendment No. 1 and the Mercer
Transaction, all of the representations and warranties made or deemed to be made
under the Loan Agreement are true and correct as of the Amendment No. 1
Effective Date,
(ii) after giving effect to this Amendment No. 1 and the Mercer
Transaction, no Default or Event of Default exists;
(iii) there has not occurred any material adverse change since December
31, 1997 in the business, assets, operations, condition (financial or otherwise)
or prospects of Xxxxx and its Subsidiaries or Mercer prior to the Amendment No.
1 Effective Date; and
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(iv) there does not exist any action, suit, investigation or proceeding
pending or threatened in any court or before any arbitrator or governmental
authority that purports to affect adversely Xxxxxx, Xxxxx or its Subsidiaries or
the Mercer Transaction, or that could have a material adverse effect on Xxxxxx,
Xxxxx or its Subsidiaries or the Mercer Transaction or on the ability of Xxxxx
and its Subsidiaries to perform their obligations under the Loan Documents as
amended.
(h) evidence of the consummation of the Mercer Transaction, including evidence
of receipt by Xxxxx of an amount not less than $3,000,000 obtained through the
New Equity Issuance and aggregate gross proceeds of $30,000,000 obtained through
the issuance of the New Senior Notes, including copies of the Mercer Acquisition
Documents, the consents of the requisite holders of the Senior Notes obtained
pursuant to the Consent Solicitation Statement, and the New Note Indenture;
(i) a certificate evidencing the good standing of Mercer in the jurisdiction of
its incorporation and in each other jurisdiction in which it is qualified as a
foreign corporation to transact business;
(j) the Financing Statements duly executed and delivered by Mercer;
(k) landlord's waiver and consent agreements duly executed on behalf of each
lessor of real property described on ANNEX 3;
(l) a modification to the existing Mortgage encumbering Real Estate located at
0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx (the
"California Mortgage"), duly executed and delivered by Xxxxx and evidencing the
recording of such instrument in the appropriate jurisdiction for the recording
thereof on the Real Estate subject thereto or, at the option of the Agent, in
proper form for recording in such jurisdiction;
(m) a fully paid endorsement to the mortgagee title insurance policy relating
to the California Mortgage or, at the option of the Lender, an unconditional
commitment for the issuance thereof with all requirements and conditions to the
issuance of the final endorsement deleted or marked satisfied, issued by a title
insurance company satisfactory to the Agent, confirming that the California
Mortgage as amended continues to create a valid first lien on, and security
title to, all Real Estate described therein as security for the Secured
Obligations;
(n) the Mercer Mortgage duly executed and delivered by Mercer and in proper
form for the recording of such instrument in Lake County, Florida;
(o) certificates or binders of insurance relating to each of the policies of
insurance covering any of the Collateral owned by Mercer together with loss
payable clauses which comply with the terms of Section 7.8 of the Loan
Agreement; and
(p) evidence satisfactory to the Agent of the release and termination of (or
agreement to release and terminate) all Liens relating to Xxxxxx'x property
other than Permitted Liens;
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(q) a signed opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for Xxxxx and
Mercer, opining as to such matters in connection with this Agreement as the
Agent or its counsel may reasonably request;
(r) the Mercer Trademark Assignment duly executed and delivered by Mercer;
(s) a Schedule of Inventory, a Schedule of Receivables and a Schedule of
Equipment, each prepared as of a recent date;
(t) updated Schedules to the Loan Agreement and the Loan Documents , as
necessary, revised to reflect the Mercer Transaction and any other changes to
the same since the Effective Date; and
(u) such other documents and instruments as any Lender, through the Agent, may
reasonably request.
Section 5. EFFECT OF AMENDMENT. Upon and after the Amendment No. 1
Effective Date, all references to the Loan Agreement in that document or in
any other Loan Document or related document shall mean the Loan Agreement as
amended by this Amendment No. 1. Except as expressly provided in this
Amendment No. 1, the execution and delivery of this Amendment No. 1 does not
and will not amend, modify or supplement any provision of, or constitute a
consent to, or a waiver of, any noncompliance with the provisions of, the
Loan Agreement or any other Loan Document, and, except as specifically
provided in this Amendment No. 1, the Loan Agreement and all other Loan
Documents shall remain in full force and effect.
Section 6. LEGAL EXPENSES. Xxxxx and Mercer each jointly and severally
agree to pay or reimburse the Agent on demand all costs and expenses,
including reasonable legal fees and expenses, incurred by the Agent in
connection with the preparation, execution and delivery of this Amendment No. 1.
Section 7. REPRESENTATIONS AND WARRANTIES. Xxxxx and Mercer each
hereby makes the following representations and warranties to the Lender,
which representations and warranties shall survive the delivery of this
Amendment No. 1:
(a) AUTHORIZATION OF AGREEMENTS. To the extent it is a party thereto, each has
the right and power and has taken all necessary corporate action to authorize it
to execute, deliver and perform in accordance with their respective terms, this
Amendment No. 1, the Notes, the Mercer Mortgage, the Mercer Pledge Agreement,
the Mercer Trademark Assignment, and each other Loan Document executed in
connection with this Amendment No. 1 and the Mercer Transaction. This
Amendment, No. 1 the Notes, the Mercer Mortgage, the Mercer Pledge Agreement,
the Mercer Trademark Assignment, and each other Loan Document executed in
connection with this Amendment No. 1 and the Mercer Transaction have each been
duly executed and delivered by the duly authorized officers of Xxxxx or Mercer,
as the case may be, and are legal, valid and
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binding obligations of Xxxxx and Mercer, as the case may be, enforceable in
accordance with their respective terms.
(b) COMPLIANCE OF AGREEMENTS WITH LAWS. The execution, delivery and
performance in accordance with their respective terms of this Amendment No. 1,
the Notes, the Mercer Mortgage, the Mercer Pledge Agreement, the Mercer
Trademark Assignment, and each other Loan Document executed in connection with
this Amendment No. 1 and the Mercer Transaction, does not and will not, by the
passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any Applicable Law
relating to Xxxxx, Mercer or any of their Affiliates,
(ii) conflict with, result in a breach of or constitute a default under
(i) the articles of incorporation or by-laws or any shareholders' agreement of
Xxxxx, Mercer or any other Subsidiary of Xxxxx, (ii) any material provision of
any indenture, agreement or other instrument to which Xxxxx, Mercer or any other
Subsidiary of Xxxxx is a party or by which any of its property may be bound or
(iii) any Governmental Approval relating to Xxxxx, Mercer or any other
Subsidiary of Xxxxx, or
(iii) result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by Xxxxx, Mercer or
any other Subsidiary of Xxxxx other than the Security Interest.
Section 8. GENERAL PROVISIONS.
(a) GOVERNING LAW. This Amendment No. 1 shall be construed in accordance with
and governed by the law of the State of New York.
(b) COUNTERPART EXECUTION. This Amendment No. 1 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 shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
BORROWER:
XXXXX INDUSTRIES, INC.
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------
Title: Secretary
---------------------------------
MERCER:
MERCER PRODUCTS COMPANY, INC.
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------
Title: Secretary
---------------------------------
AGENT:
NATIONSBANK, N.A.
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
---------------------------------
LENDER:
NATIONSBANK, N.A.
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: Vice President
---------------------------------
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ANNEX 1
FORM OF
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$25,000,000 New York, New York
_________ ____, 1998
FOR VALUE RECEIVED, the undersigned, XXXXX INDUSTRIES, INC., a
California corporation (the "Borrower"), and MERCER PRODUCTS COMPANY, INC., a
New Jersey corporation (the "Borrowing Subsidiary"), jointly and severally,
hereby unconditionally promise to pay to the order of NATIONSBANK, N.A. (the
"Lender") at the offices of NationsBank, N.A., a national banking association,
as agent for the Lenders (together with its successor agents, the "Agent")
located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx, 00000, or at such other
place within the United States as shall be designated from time to time by the
Agent, on the Termination Date, the principal amount of TWENTY-FIVE MILLION AND
NO/100 DOLLARS ($25,000,000.00), or such lesser principal amount as may then
constitute the aggregate unpaid balance of all Revolving Credit Loans made by
the Lender to the Borrower and the Borrowing Subsidiary pursuant to the Loan
Agreement (as hereinafter defined), in lawful money of the United States of
America in federal or other immediately available funds.
The Borrower and the Borrowing Subsidiary also unconditionally,
jointly and severally, promise to pay interest on the unpaid principal amount of
this Note outstanding from time to time for each day from the date of
disbursement until such principal amount is paid in full at the rates per annum
and on the dates specified in the Loan Agreement applicable from time to time in
accordance with the provisions thereof. Nothing contained in this Note or in
the Loan Agreement shall be deemed to establish or require the payment of a rate
of interest in excess of the maximum rate permitted by any Applicable Law. In
the event that any rate of interest required to be paid hereunder exceeds the
maximum rate permitted by Applicable Law, the provisions of the Loan Agreement
relating to the payment of interest under such circumstances shall control.
This Note is given in substitution for the Revolving Credit Note
dated August 20, 1997 made by the Borrower payable to the Lender and is one of
the Revolving Credit Notes referred to in that certain Loan and Security
Agreement dated as of August 20, 1997, as amended by Amendment No. 1, Waiver and
Joinder Agreement to Loan and Security Agreement dated as of a date on or about
the date hereof (as amended, modified, supplemented or restated from time to
time, the "Loan Agreement"; terms defined therein being used in this Note as
therein defined) among the Borrower, the Borrowing Subsidiary, the financial
institutions party thereto from time to time (the "Lenders") and the Agent, is
subject to, and entitled to, all provisions and benefits of
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the Loan Documents, is secured by the Collateral and other property as provided
in the Loan Documents, is subject to optional and mandatory prepayment in whole
or in part and is subject to acceleration prior to maturity upon the occurrence
of one or more Events of Default, all as provided in the Loan Documents.
Presentment for payment, demand, protest and notice of demand,
notice of dishonor, notice of non-payment and all other notices are hereby
waived by the Borrower and the Borrowing Subsidiary, except to the extent
expressly provided in the Loan Agreement. No failure to exercise, and no delay
in exercising, any rights hereunder on the part of the holder hereof shall
operate as a waiver of such rights.
The Borrower and the Borrowing Subsidiary hereby, jointly and
severally, agree to pay on demand all costs and expenses incurred in collecting
the Secured Obligations hereunder or in enforcing or attempting to enforce any
of the Lender's rights hereunder, including, but not limited to, reasonable
attorneys' fees and expenses if collected by or through an attorney, whether or
not suit is filed, all as provided in the Loan Agreement.
THE PROVISIONS OF SECTION 14.16 OF THE LOAN AGREEMENT ARE HEREBY
EXPRESSLY INCORPORATED BY REFERENCE HEREIN.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE CHOICE OF LAW RULES OF THE STATE OF NEW YORK, BUT WITH
REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH
SHALL APPLY TO THIS NOTE.
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IN WITNESS WHEREOF, the undersigned has executed this Note as of the
day and year first above written.
XXXXX INDUSTRIES, INC.
By: /s/
-----------------------------------
Name: Xxxxx Xxxxx
----------------------------
Title: Secretary
----------------------------
(CORPORATE SEAL)
Attest:
By: /s/
------------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Assistant Secretary
--------------------------
MERCER PRODUCTS COMPANY, INC.
By: /s/
-----------------------------------
Name: Xxxxx Xxxxx
----------------------------
Title: Secretary
----------------------------
(CORPORATE SEAL)
Attest:
By: /s/
------------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: Assistant Secretary
--------------------------
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ANNEX 2
FORM OF
CONSENT AND CONFIRMATION OF GUARANTOR
Each of the undersigned, each a Guarantor and party to a Subsidiary
Guaranty (each as defined in the Loan and Security Agreement, dated as of August
20, 1997, between Xxxxx Industries, Inc., the financial institutions party
thereto from time to time and NationsBank, N.A., as Agent (the "Loan
Agreement")), hereby expressly acknowledges and confirms, for the benefit of the
Borrower and the Lender, that (1) such Guarantor has an economic interest in the
financial success of the Borrower and the transactions contemplated by the Loan
Agreement and the Amendment No. 1, Waiver and Joinder Agreement to the Loan and
Security Agreement dated on or about the date hereof (the "Amendment"), and
hereby confirms to the Agent and the Lender the benefits to such Guarantor by
reason of such transactions, (2) such Guarantor has received a copy of the
Amendment and consents thereto in all respects and (3) the Subsidiary Guaranty
of which such Guarantor is the maker constitutes a continuing, unconditional
guaranty of the Guaranteed Obligations under and as defined in the Subsidiary
Guaranty after giving effect to the Amendment. Each Guarantor is and continues
to be liable under the Subsidiary Guaranty to which it is a party in accordance
with the terms thereof, notwithstanding the execution and delivery of the
Amendment.
Dated: April 21, 1998
XXXXX FLOORING PRODUCTS, INC.
By: /s/
-----------------------------------
Name: Xxxxx Xxxxx
----------------------------
Title: Secretary
----------------------------
XXXXX CUSTOM PROCESSING, INC.
By: /s/
-----------------------------------
Name: Xxxxx Xxxxx
----------------------------
Title: Secretary
----------------------------
XXXXX RUBBER COMPANY, INC.
By: /s/
-----------------------------------
Name: Xxxxx Xxxxx
----------------------------
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Title: Secretary
----------------------------
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ANNEX 3
LANDLORDS
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