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EXHIBIT 10.1
THIRD AMENDMENT TO
LIMITED FORBEARANCE AGREEMENT
THIS THIRD AMENDMENT TO LIMITED FORBEARANCE AGREEMENT (the
"Amendment"), dated as of March 26, 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 (as amended, the "Agreement") dated as of
February 14, 2001, as amended by that certain First Amendment to Limited
Forbearance Agreement dated as of February 28, 2001, and Second Amendment to
Limited Forbearance Agreement dated as of March 12, 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 Limited Forbearance. Effective as of the date hereof,
Section 2.1(b) of the Agreement is hereby amended by deleting therefrom the
reference to "February 28, 2001" and substituting in lieu thereof "March 31,
2001".
2.2 Amendment to Schedule 1. Effective as of the date hereof through
and including April 13, 2001, item 3 on Schedule 1 to the Agreement is hereby
amended and item 4 is hereby added to Schedule 1 to the Agreement, each to read
as follows:
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"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."
"4. Events of Default under Section 8.1(b)(i) of the Credit
Agreement by reason of the Borrower's failure to pay the principal
amounts of the Facility A Term Loan Advances and of the Facility B Term
Loan Advances due and payable on March 31, 2001."
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).
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ARTICLE IV
Conditions Precedent
This Amendment shall become effective as of March 26, 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, the Lenders, the Administrative Agent,
Westar Capital II LLC, and Westar Capital.
4.2 Default. No Default shall have occurred and be continuing other
than any Default which results solely from the Subject Events.
4.3 Payment of Interest and Fees. The Administrative Agent shall have
received on or prior to March 30, 2001, payment of all accrued but unpaid
interest on the Advances through March 31, 2001, and the Borrower shall have
paid all reasonable expenses and fees arising in connection with all matters
undertaken or performed at the request of the Administrative Agent or the
Lenders, including but not limited to all expenses and fees owed to Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C. and the Financial Advisor to the extent billed on or
prior to the date hereof.
4.4 Cooperation. The Borrower shall have cooperated with Financial
Advisor and Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. in all of their due diligence
inquiries.
4.5 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.
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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
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 successor's and assigns, and shall inure to
the parties hereto and the successors and assigns of the Administrative Agent
and 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 statue, 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.
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(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 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 & Chief Financial
Officer
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated
as of March 26, 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 Third Amendment to Limited Forbearance Agreement dated as
of March 26, 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
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
ARK CLO 2000-1, LIMITED
By: Petnarch Partners, L.L.C.
its Collateral Manager
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: Authorized Signature
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 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: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Vice President
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
COMERICA BANK
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Vice-President
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
HSBC BANK USA
By: /s/ X.X. XXXXX
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Name: X.X. Xxxxx
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Title: SVP
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
IMPERIAL BANK
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Vice-President
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors L.L.C.,
as Collateral Manager
By: /s/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
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Title: Vice-President
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 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/ WILL XXXXXXX JR.
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Name: Will Xxxxxxx Jr.
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Title: Asst. Vice President
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated as
of March 26, 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 Third Amendment to Limited Forbearance Agreement dated as
of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of America,
N.A., as Administrative Agent, and the Lenders party thereto.
KZH SOLEIL LLC
By: /s/ XXXXX XXX
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Name: Xxxxx Xxx
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Title: Authorized Agent
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement dated
as of March 26, 2001, among Xxxxxxxx Manufacturing Company, Inc., Bank of
America, N.A., as Administrative Agent, and the Lenders party thereto.
Long Drive Management Trust agrees on behalf of Tri-Links Investment Trust
to the terms of the Limited Forbearance Agreement dated as of February 14, 2001,
as amended by First Amendment to Limited Forbearance Agreement dated as of
February 28, 2001, Second Amendment to Limited Forbearance Agreement dated as of
March 12, 2001, and Third Amendment to Limited Forbearance Agreement dated as of
March 26, 2001 (as amended, the "Agreement") solely in its capacity as a Lender,
it being understood that the terms of the Agreement shall not apply to Tri-Links
Investment Trust in its capacity as a holder [ILLEGIBLE] issued by Xxxxxxxx
Manufacturing Company, Inc. or to any other claims against Xxxxxxxx
Manufacturing Company, Inc. held by Tri-Links Investment Trust.
TRI-LINKS INVESTMENT TRUST by
Wilmington Trust Company as
Owner Trustee
By: /s/ XXXXX X. XXXXXXXX, XX.
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Name: Xxxxx X. Xxxxxxxx, Xx.
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Title: Vice President
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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 the
Agreement.
Executed as of March 26, 2001
BANK OF AMERICA, N.A., as
Administrative Agent and as Lender
By /s/ XXXX X. XXXXXXX III
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Xxxx X. Xxxxxxx III
Managing Director
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SIGNATURE PAGE to Third Amendment to Limited Forbearance Agreement
dated as of March 26, 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 acknowledge 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 Partner
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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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