EXHIBIT 10.29
BERKSHIRE FUND IV, LIMITED PARTNERSHIP
BERKSHIRE FUND V, LIMITED PARTNERSHIP
XXX XXXXXX XXXXX, XXXXX 0000
XXXXXX, XX 00000
March 22, 2002
The Xxxxxx Group, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, President
Re: Fees for Berkshire Guaranty
Dear Xx. Xxxxxx:
As you know, The Xxxxxx Group, Inc. (the "Company") and certain of its
subsidiaries (collectively, the "Borrowers") are today preparing to enter into a
Fifth Amendment to Amended and Restated Revolving Credit and Term Loan Agreement
and Limited Waiver (the "Fifth Amendment"), for the purpose of amending certain
provisions of the Amended and Restated Revolving Credit and Term Loan Agreement,
dated as of February 5, 1999 (as previously amended, including by a Fourth
Amendment and Limited Waiver dated as of May 7, 2001 (the "Fourth Amendment"),
and as further amended by the Fifth Amendment, the "Credit Agreement"), by and
among the Borrowers and certain Banks and Agents specified therein. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Credit Agreement.
The Fourth Amendment, INTER ALIA, established a new Total Revolving B
Commitment of $40,000,000 for the benefit of the Borrowers, and, as a condition
precedent to the effectiveness of the Total Revolving B Commitment, the
Revolving B Banks required that Berkshire Fund IV, Limited Partnership
("Berkshire IV") and Berkshire Fund V, Limited Partnership ("Berkshire V", and
together with Berkshire IV, "Berkshire") execute and deliver a Guaranty dated
May 7, 2001 (the "Guaranty") for the ratable benefit of the Revolving B Banks,
which provides that each of Berkshire IV and Berkshire V, under certain
specified circumstances, will guaranty the payment by the Borrowers when due
(whether at maturity, by acceleration or otherwise) of a maximum of $21,750,000
of principal and interest indebtedness owing under outstanding Revolving Credit
B Loans made to the Borrowers.
The Fifth Amendment, inter alia, extends the Revolving Credit Loan B
Maturity Date from July 1, 2002 to July 1, 2004 and provides that a portion of
the Revolving Credit B Loans shall become Subdebt Funding Loans. The Revolving B
Banks have requested, in conjunction with the Fifth Amendment, that Berkshire
amend the Guaranty (the "Guaranty Amendment") to, among other things, agree to
the extension of the Revolving Credit Loan B Maturity Date.
In order to preserve and enhance its existing investment as the
majority stockholder in the Company, Berkshire is prepared to execute and
deliver the Guaranty Amendment and consent to the extension of the Revolving
Credit Loan B Maturity Date and thereby continue the Guaranty in effect, subject
to reaching an understanding with the Company and each of the subsidiaries of
the Company which is a Domestic Subsidiary (together, the "Xxxxxx Obligors")
regarding the fees to be received by Berkshire in consideration of its
willingness to continue the Guaranty, as amended by the Guaranty Amendment, as
well as the reimbursement to Berkshire of all amounts which may be required to
be paid pursuant to the Guaranty, as so amended. The purpose of this letter is
to set forth our mutual agreement with respect to those understandings.
Specifically, Berkshire requests that each of the Xxxxxx Obligors
expresses its agreement with Berkshire as follows:
1. Upon the execution of the Fifth Amendment by the Xxxxxx Obligors and
the Guaranty Amendment by Berkshire, the Xxxxxx Obligors will become
obligated to pay to Berkshire, so long as both (x) the Guaranty, as
amended, is in effect and (y) the Revolving B Commitment is in effect
or any Revolving Credit B Loans are outstanding, a "Guaranty Fee" equal
(i) to an amount calculated at the rate of 2.25% per annum of (A) the
amount of the Revolving B Commitment as in effect from time to time (or
if the Revolving B Commitment is terminated, the average daily amount
of the Revolving B Loans as are outstanding from time to time) minus
(B) the average daily amount of the Subdebt Funding Loans as are
outstanding from time to time, such amount to be compounded annually on
each anniversary date of this Letter Agreement until paid, plus (ii) an
amount calculated at the rate of 20% per annum on the average daily
amount of the Subdebt Funding Loans outstanding from time to time
during each one year period from the date of this Letter Agreement,
such amount to be compounded annually on each anniversary date of this
Letter Agreement until paid.
2. Pursuant to a letter agreement dated May 7, 2001, the Xxxxxx Obligors
and Berkshire entered into a fee agreement with respect to the issuance
of the Guaranty pursuant to the Fourth Amendment (the "Original Fee
Agreement"). Berkshire and the Xxxxxx' Obligors hereby agree that the
provisions of Sections 2 and 3 of the Original Fee Agreement are hereby
terminated and are of no further force and effect. Except as so
amended, the Original Fee Agreement remains in full force and effect.
3. The parties hereto acknowledge that no cash payment of any Guaranty Fee
provided for hereunder will be permitted to be made by the Xxxxxx
Obligors while any Obligations of the Borrowers or Commitments of the
Banks remain outstanding under the Credit Agreement, without the prior
written consent of the requisite Banks. The Xxxxxx Obligors acknowledge
that Berkshire shall be entitled to request at any future time that the
Xxxxx xxxxx such requisite consent to the cash payment of the Guaranty
Fees, or any portion thereof, and if such consent is granted, the
Xxxxxx Obligors agree to remit all such earned fee payments to
Berkshire within twenty (20) days of Berkshire's demand therefor.
2
4. In the event that Berkshire is required to make any payment under the
Guaranty, as amended by the Guaranty Amendment (each a "Guaranty
Payment"), the Xxxxxx Obligors hereby acknowledge and agree that, in
collecting upon any Guaranty Payment made by Berkshire, including
accrued interest thereon, Berkshire shall be subrogated (or
alternatively may succeed by assignment) to the rights of the Revolving
B Banks or any Agent on behalf thereof (including without limitation
with respect to all rights of the Revolving B Banks and any Agent
relating to the Collateral) to the fullest extent permitted or provided
for under the Guaranty, the Credit Agreement or any other agreement
with the Banks and/or any Agent, or under applicable law.
5. The Xxxxxx Obligors shall be responsible and obligated to promptly
reimburse Berkshire for all out-of-pocket costs and expenses (including
without limitation all reasonable legal fees and expenses) incurred by
Berkshire in connection with its negotiation, execution and delivery of
the Guaranty Amendment and its performance thereunder, as well as in
connection with the assistance provided by Berkshire to the Borrowers
with respect to the negotiation, execution and delivery of the Fifth
Amendment and related documents.
If the Xxxxxx Obligors are in agreement with the foregoing terms and
conditions, please so indicate by executing and returning to Berkshire the
enclosed counterpart of this letter. Upon such execution, this letter will
become a binding agreement between the parties hereto, enforceable under the
laws of The Commonwealth of Massachusetts as a document under seal.
Very truly yours,
BERKSHIRE FUND IV, LIMITED PARTNERSHIP
By: Fourth Berkshire Associates LLC,
its General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Managing Member
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC,
its General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Managing Member
XXXXXX OBLIGORS:
3
The foregoing terms and conditions are accepted and agreed to as of the date of
this letter.
THE XXXXXX GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
THE RIVAL COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXXX MANUFACTURING CORP.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXXX AIR (TAIWAN) CORP.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXXX MOTOR CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
RIVAL CONSUMER SALES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
ACKNOWLEDGEMENT AND CONSENT:
The undersigned, being Foreign Subsidiaries and Borrowers under the Credit
Agreement more particularly referred to in this letter agreement by and among
Berkshire and the Xxxxxx Obligors, hereby join in this letter agreement for the
limited purpose of acknowledging and agreeing to the terms of paragraph 5 set
forth
4
above with respect to the rights of Berkshire following any Guaranty
Payment.
XXXXXX PRODUCTS (FAR EAST) LIMITED
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
ESTEEM INDUSTRIES LIMITED
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
RAIDER MOTOR CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
BIONAIRE INTERNATIONAL B.V.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXXX PRODUCTS (EUROPE) LIMITED
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXXX ELECTRIC (HONG KONG) LTD.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
THE XXXXXX GROUP OF CANADA LTD.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
5
