Exhibit 99
AMENDMENT AGREEMENT NO. 4
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 30th day
of November, 1998, by and among XXXXXX INDUSTRIES, INC., a Delaware corporation
(herein called the "Borrower"), NATIONSBANK NATIONAL ASSOCIATION (the "Agent"),
as Agent for the lenders (the "Lenders") party to the Credit Agreement dated
October 15, 1997, as amended by Amendment Agreement No. 1 dated November 20,
1997, Amendment No. 2 dated January 28, 1998 and Amendment No. 3 dated July 9,
1998 among such Lenders, Borrower and the Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make term loans and
revolving loans to the Borrower in the aggregate principal amount of up to
$800,000,000 as evidenced by the Notes (as defined in the Agreement) and to
issue Letters of Credit for the benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the
Agreement the Lenders have required that all Restricted Subsidiaries (other than
inactive Subsidiaries) of the Borrower guarantee payment of all Obligations of
the Borrower arising under the Agreement; and
WHEREAS, the Borrower has requested that the Agreement be amended and
the Agent and the Lenders, subject to the terms and conditions hereof, are
willing to make such amendment, as provided herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENT. SECTION 10.1(A) of the agreement is amended, effective as
of the date hereof, in its entirety, so that as amended it shall read as
follows:
"(a) FIXED CHARGE COVERAGE. Cause, suffer or permit the
Consolidated Fixed Charge Coverage Ratio as at November 30, 1998 and
February 28, 1999 to be less than 1.00 to 1.00 and as at the end of
each Four-Quarter Period thereafter to be less than 1.25 to 1.00."
3. SUBSIDIARY CONSENTS. Each Restricted Subsidiary of the Borrower that
has delivered a Guaranty to the Agent has joined in the execution of this
Amendment Agreement for the purpose of (i) agreeing to the amendment to the
Agreement and (ii) confirming its guarantee of payment of all the Obligations.
4. CONDITIONS. This Amendment Agreement shall become effective upon the
Borrower delivering to the Agent five (5) counterparts of this Amendment
Agreement duly executed by the Borrower and consented to by each of the
Restricted Subsidiaries.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
XXXXXX INDUSTRIES, INC.
WITNESS:
/S/ XXXX X. XXXX By: /S/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
/S/ XXXX X. XXXXX Title: Vice President & Treasurer
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GUARANTORS:
AIMCOR ENTERPRISES INTERNATIONAL
INCORPORATED
AIMCOR (FAR EAST), INC.
APPLIED INDUSTRIAL MATERIALS
CORPORATION
BEST INSURORS, INC.
BEST INSURORS OF MISSISSIPPI, INC.
COAST TO COAST ADVERTISING, INC.
COMPUTER HOLDINGS CORPORATION
XXXXX BUILDING SUPPLIES, INC.
XXXXX HOLDINGS CORPORATION
XXXXX PROPERTIES, INC.
HOMES HOLDING CORPORATION
JEFFERSON WARRIOR RAILROAD
COMPANY, INC.
XXX XXXXXX RESOURCES, INC.
JW ALUMINUM COMPANY
X.X. XXXXXX, INC.
J.W.I. HOLDINGS CORPORATION
LAND HOLDINGS CORPORATION
RAILROAD HOLDINGS CORPORATION
XXXXX INDUSTRIES CORPORATION
SOUTHERN PRECISION CORPORATION
UNITED LAND CORPORATION
UNITED STATES PIPE AND FOUNDRY
COMPANY, INC.
XXXXXX MANUFACTURING COMPANY
WITNESS: XXXXXX HOME IMPROVEMENT, INC.
XXXXXX LAND COMPANY
/S/ XXXX X. XXXX XXXX TRANSPORT AGENCIES (USA), INC.
---------------------------
/S/ XXXX X. XXXXX By: /S/ XXXX X. XXXXXXXX
--------------------------- ---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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XXX XXXXXX COMPUTER SERVICES, INC.
XXX XXXXXX HOMES, INC.
WITNESS: XXXXXXXXXX HOMES, INC.
/S/ XXXX X. XXXX
---------------------------
/S/ XXXX X. XXXXX By: /S/ XXXXX X. XXXX
--------------------------- -----------------------
Name: Xxxxx X. Xxxx
Title: Vice President
WITNESS: XXX XXXXXX HOMES OF ASHEVILLE, INC.
/S/ XXXX X. XXXX
---------------------------
/S/ XXXX X. XXXXX By: /S/ XXXXXX X. XXXXXXX
--------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION,
as Lender
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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