EXHIBIT 10.1
SECOND AMENDMENT TO SERVICES AGREEMENT (this "Second
Amendment"), dated as of March 15, 2004, among Xxxxxxx & Xxxxxx Corporation, a
Delaware corporation, Xxxxxxx & Xxxxxx Products Co., a Delaware corporation
(together with Xxxxxxx & Xxxxxx Corporation, the "Company"), and Heartland
Industrial Partners, L.P., a Delaware limited partnership ("Heartland").
WHEREAS, Heartland and the Company have entered into the
Services Agreement (the "Agreement"), dated as of February 23, 2001, as amended,
among Xxxxxxx & Xxxxxx Corporation, a Delaware corporation, Xxxxxxx & Xxxxxx
Products Co., a Delaware corporation and Heartland Industrial Partners, L.P., a
Delaware limited partnership; and
WHEREAS, the Company and Heartland desire to amend the
Agreement as more fully set forth below;
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants and conditions contained herein, the parties hereto agree as
follows:
(a) Section 3(c) of the Agreement is hereby amended by the
addition of the following sentence at the end thereof as follows: "In
addition, in consideration of the services performed in connection with
the consummation of the Credit Linked Deposit Facility dated as of
February 20, 2004 among the Company, JPMorgan Chase Bank and the other
parties from time to time party thereto, the Company shall be obligated
to pay to Heartland or its designees a transaction fee of $1,000,000."
(b) Miscellaneous.
(1) This Second Amendment and the Agreement together
shall constitute the entire agreement between the parties with
respect to the subject matter hereof, and shall supersede all
previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings
relating hereto.
(2) This Second Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of New York. This Second Amendment shall inure to the
benefit of, and be binding upon, Heartland, the Company and
their respective successors and permitted assigns provided for
in the Agreement.
This Second Amendment may be executed by one or more parties
to this Second Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
-2-
IN WITNESS WHEREOF, the parties have caused this Second
Amendment to be executed and delivered by their duly authorized officers or
agents as of the date first above written.
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: Heartland Industrial Associates
L.L.C., its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Managing Director
XXXXXXX & XXXXXX CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
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Name: J. Xxxxxxx Xxxxx
Title: Vice Chairman and
Chief Financial Officer
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ J. Xxxxxxx Xxxxx
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Name: J. Xxxxxxx Xxxxx
Title: Chief Financial Officer
