EXHIBIT 10.107
CAPITAL CALL AGREEMENT
Capital Call Agreement, dated as of November __, 2000 (this
"Agreement"), among XXXXXX FINANCIAL, INC., a Delaware corporation (in its
individual capacity, "Xxxxxx"), as Agent (in such capacity, "Agent") on behalf
of the Lenders party to the Credit Agreement described below, HARVEST PARTNERS
III, L.P., a Delaware limited partnership ("Harvest LP"), XXXX INTERNATIONAL
HOLDINGS, INC., a Delaware corporation ("Holdings"), and XXXX INDUSTRIES,
INCORPORATED, DEFLECTA-SHIELD CORPORATION, BELMOR AUTOTRON CORP., DFM CORP.,
AUTO VENTSHADE COMPANY and SMITTYBILT, INC. (each a "Borrower" and,
collectively, the "Borrowers")
The parties agree as follows:
1. Reference is made to the Credit Agreement, dated as of February 27,
1998 (as such agreement has from time to time been amended, supplemented or
otherwise modified to and including the date hereof and as it shall hereafter be
further amended, supplemented or otherwise modified, the "Credit Agreement"),
among Holdings, the Borrowers, the other Loan Parties party thereto, Xxxxxx, as
Agent and a Lender, and the other Lenders party thereto. Capitalized terms used
herein without definition shall have the meanings attributed thereto in the
Credit Agreement. In addition, whenever used herein, the following terms shall
have the following meanings:
"First Test Date" means the earlier of (x) the actual delivery by the
Borrowers of the quarterly financial statements as at September 30,
2001 pursuant to subsection 4.7(B) of the Credit Agreement and (y) the
date when such financial statements are required to be delivered by
Borrowers pursuant to subsection 4.7(B) of the Credit Agreement.
"Proposed Transaction" means the sale or sales of the Indianola
Property and/or the Anoka Property with aggregate Net Proceeds to the
Borrowers of at least $10,000,000 and the application by the Borrowers
of such aggregate Net Proceeds to the prepayment of the Term Loans
pursuant to subsection 1.5(C) of the Credit Agreement.
"Second Test Date" means the earlier of (x) the actual delivery by the
Borrowers of the audited annual financial statements as at December 31,
2001 pursuant to subsection 4.7(C) of the Credit Agreement and (y) the
date when such financial statements are required to be delivered by
Borrowers pursuant to subsection 4.7(C) of the Credit Agreement.
"Third Test Date" means the earlier of (x) the actual delivery by the
Borrowers of the quarterly financial statements as at March 31, 2002
pursuant to subsection 4.7(B) of the Credit Agreement and (y) the date
when such financial statements are required to be delivered by
Borrowers pursuant to subsection 4.7(B) of the Credit Agreement.
2. (a) On or before December 31, 2000, Harvest LP shall, or shall cause
a designee of Harvest LP acceptable to Agent in its sole discretion to, make a
contribution of $5,000,000 to the equity of Holdings (the "First Capital Call").
Holdings shall immediately thereafter contribute the entire $5,000,000 amount of
the First Capital Call to the equity of such
Borrower or Borrowers as Agent may require. Such Borrower or Borrowers shall
immediately thereafter apply the entire $5,000,000 amount of the First Capital
Call to reduce the outstanding principal balance of the Revolving Loans, but not
as a permanent reduction of the Revolving Loan Commitment; provided, that upon
the making of the First Capital Call, Agent shall immediately establish a
reserve on the Borrowing Base equal to the amount of the First Capital Call.
(b) In the event that the ratio of Senior Indebtedness (as of
September 30, 2001) to EBITDA (for the four Fiscal Quarters ending September 30,
2001) shall be greater than or equal to 3.0 to 1.0:
(i) subject to the provisions of the third paragraph of this
Section 2(b)(i), if the Proposed Transaction shall not have occurred on
or before September 30, 2001, then (A) the reserve established on the
Borrowing Base pursuant to Section 2(a) shall remain in place, (B) on
the First Test Date, the entire $5,000,000 amount of the First Capital
Call shall be applied to prepay the Term Loans in accordance with
subsection 1.5(E) of the Credit Agreement, (C) within thirty (30) days
after the First Test Date, Harvest LP shall, or shall cause a designee
of Harvest LP acceptable to Agent in its sole discretion to, make an
additional contribution of $5,000,000 to the equity of Holdings (the
"Second Capital Call" and together with the First Capital Call,
collectively, the "Capital Calls") and (D) the provisions of Section
2(d) shall not apply but the provisions of Section 2(e) shall apply.
Subject to the provisions of the third paragraph of this
Section 2(b)(i), if the Second Capital Call is required to be made
pursuant to this Section 2(b)(i), the following procedures shall apply:
Holdings shall immediately thereafter contribute the entire $5,000,000
amount of the Second Capital Call to the equity of such Borrower or
Borrowers as Agent may require. Such Borrower or Borrowers shall
immediately thereafter apply the entire $5,000,000 amount of the Second
Capital Call to reduce the outstanding principal balance of the
Revolving Loans, but not as a permanent reduction of the Revolving Loan
Commitment.
If, however, on or prior to the First Test Date, the Borrowers
shall have entered into a binding agreement or binding agreements, in
each instance in form and substance reasonably satisfactory to Agent,
providing for the Proposed Transaction, the provisions of clauses (B)
and (C) of the first paragraph of this Section 2(b)(i) shall be
suspended until the earlier of the date on which the Proposed
Transaction occurs and December 31, 2001. If the Proposed Transaction
does not occur on or prior to December 31, 2001, then, (x) on December
31, 2001, the entire $5,000,000 amount of the First Capital Call shall
be applied to prepay the Term Loans in accordance with subsection
1.5(E) of the Credit Agreement, (y) within thirty (30) days thereafter,
Harvest LP shall, or shall cause a designee of Harvest LP acceptable to
Agent in its sole discretion to, make the Second Capital Call and (z)
all other provisions of the first and second paragraphs of this Section
2(b)(i) shall apply. If the Proposed Transaction occurs on or prior to
December 31, 2001, then, on and as of the date on which the Proposed
Transaction occurs, the ratio of Senior Indebtedness (as of September
30, 2001) to EBITDA (for the four Fiscal Quarters ending September 30,
2001) shall be recalculated giving pro forma
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effect to the Proposed Transaction. If, after such recalculation, such
ratio is greater than or equal to 3.0 to 1.0, then: (1) on the first
Business Day after the Proposed Transaction occurs the entire
$5,000,000 amount of the First Capital Call shall be applied to prepay
the Term Loans in accordance with subsection 1.5(E) of the Credit
Agreement, (2) within thirty (30) days after the date on which the
Proposed Transaction occurs, Harvest LP shall, or shall cause a
designee of Harvest LP acceptable to Agent in its sole discretion to,
make the Second Capital Call, (3) notwithstanding the provisions of the
second paragraph of this Section 2(b)(i), the entire $5,000,000 amount
of the Second Capital Call shall be applied to prepay the Term Loans in
accordance with subsection 1.5(E) of the Credit Agreement and (4) the
provisions of Sections 2(d) and 2(e) shall not apply. If, however,
after such recalculation, such ratio is less than 3.0 to 1.0, then,
notwithstanding the provisions of the first two paragraphs of this
Section 2(b)(i), the provisions of Section 2(c)(ii) shall apply from
and after the date on which the Proposed Transaction occurs; or
(ii) if the Proposed Transaction shall have occurred on or
before September 30, 2001, then (A) the reserve established on the
Borrowing Base pursuant to Section 2(a) shall remain in place, (B) on
the First Test Date, the entire $5,000,000 amount of the First Capital
Call shall be applied to prepay the Term Loans in accordance with
subsection 1.5(E) of the Credit Agreement, (C) within thirty (30) days
after the First Test Date, Harvest LP shall, or shall cause a designee
of Harvest LP acceptable to Agent in its sole discretion to, make the
Second Capital Call and (D) the provisions of Sections 2(d) and 2(e)
shall not apply.
If the Second Capital Call is required to be made pursuant to
this Section 2(b)(ii), the following procedures shall apply: Holdings
shall immediately thereafter contribute the entire $5,000,000 amount of
the Second Capital Call to the equity of such Borrower or Borrowers as
Agent may require. Such Borrower or Borrowers shall immediately
thereafter apply the entire $5,000,000 amount of the Second Capital
Call to prepay the Term Loans in accordance with subsection 1.5(E) of
the Credit Agreement. After the entire $5,000,000 amount of the Second
Capital Call shall have been so applied to prepay the Term Loans, the
reserve established on the Borrowing Base pursuant to Section 2(a)
shall be removed;
(c) In the event that the ratio of Senior Indebtedness (as of
September 30, 2001) to EBITDA (for the four Fiscal Quarters ending September 30,
2001) shall be less than 3.0 to 1.0:
(i) subject to the provisions of the second paragraph of this
Section 2(c)(i), if the Proposed Transaction shall not have occurred on
or before September 30, 2001, then (A) the reserve established on the
Borrowing Base pursuant to Section 2(a) shall remain in place and (B)
the provisions of Sections 2(d) and 2(e) shall apply.
If, however, on or prior to the First Test Date, the Borrowers
shall have entered into a binding agreement or binding agreements, in
each instance in form and substance reasonably satisfactory to Agent,
providing for the Proposed Transaction and if, on or prior to December
31, 2001, the Proposed Transaction shall have occurred, then, on and as
of the date on which the Proposed Transaction occurs, the ratio of
Senior
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Indebtedness (as of September 30, 2001) to EBITDA (for the four Fiscal
Quarters ending September 30, 2001) shall be recalculated giving pro
forma effect to the Proposed Transaction. If, after such recalculation,
such ratio is less than 3.0 to 1.0, then, notwithstanding the
provisions of the first paragraph of this Section 2(c)(i), the
provisions of Section 2(c)(ii) shall apply from and after the date on
which the Proposed Transaction occurs; or
(ii) if the Proposed Transaction shall have occurred on or
before September 30, 2001 (or, if the recalculation described in either
the third paragraph of Section 2(b)(i) or the second paragraph of
Section 2(c)(i) shall have resulted in a ratio of Senior Indebtedness
to EBITDA of less than 3.0 to 1.0 and the Proposed Transaction shall
have occurred on or before December 31, 2001), then (A) the reserve
established on the Borrowing Base pursuant to Section 2(a) shall be
removed, (B) the obligation of Harvest LP to make the Second Capital
Call shall terminate, (C) the equity securities issued to Harvest LP or
its designee in exchange for the First Capital Call shall be subject to
redemption subject to the satisfaction of the conditions precedent set
forth in Section 2(f) and (D) the provisions of Sections 2(d) and 2(e)
shall not apply.
(d) If the provisions of this Section 2(d) shall apply:
(i) in the event that the ratio of Senior Indebtedness (as of
December 31, 2001) to EBITDA (for the four Fiscal Quarters ending
December 31, 2001) shall be greater than or equal to 3.0 to 1.0 and
regardless of whether or not the Proposed Transaction shall have
occurred on or before December 31, 2001, then (A) the reserve
established on the Borrowing Base pursuant to Section 2(a) shall remain
in place, (B) on the Second Test Date, the entire $5,000,000 amount of
the First Capital Call shall be applied to prepay the Term Loans in
accordance with subsection 1.5(E) of the Credit Agreement, (C) within
thirty (30) days after the Second Test Date, Harvest LP shall, or shall
cause a designee of Harvest LP acceptable to Agent in its sole
discretion to, make the Second Capital Call and (D) the provisions of
Section 2(e) shall apply.
If the Second Capital Call is required to be made pursuant to
this Section 2(d)(i), the following procedures shall apply: Holdings
shall immediately thereafter contribute the entire $5,000,000 amount of
the Second Capital Call to the equity of such Borrower or Borrowers as
Agent may require. Such Borrower or Borrowers shall immediately
thereafter apply the entire $5,000,000 amount of the Second Capital
Call to reduce the outstanding principal balance of the Revolving
Loans, but not as a permanent reduction of the Revolving Loan
Commitment; or
(ii) in the event that the ratio of Senior Indebtedness (as of
December 31, 2001) to EBITDA (for the four Fiscal Quarters ending
December 31, 2001) shall be less than 3.0 to 1.0 and regardless of
whether or not the Proposed Transaction shall have occurred on or
before December 31, 2001, then (A) the reserve established on the
Borrowing Base pursuant to Section 2(a) shall remain in place and (B)
the provisions of Section 2(e) shall apply.
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(e) If the provisions of this Section 2(e) shall apply:
(i) subject to the provisions of the third paragraph of this
Section 2(e)(i), in the event that the ratio of Senior Indebtedness (as
of March 31, 2002) to EBITDA (for the four Fiscal Quarters ending March
31, 2002) shall be greater than or equal to 3.0 to 1.0 and regardless
of whether or not the Proposed Transaction shall have occurred on or
before March 31, 2002, then: (A) the reserve established on the
Borrowing Base pursuant to Section 2(a) shall remain in place, (B) on
the Third Test Date, the entire $5,000,000 amount of the First Capital
Call shall be applied to prepay the Term Loans in accordance with
subsection 1.5(E) of the Credit Agreement or, if the First Capital Call
shall have previously been so applied, the entire $5,000,000 amount of
the Second Capital Call shall be applied to prepay the Term Loans in
accordance with subsection 1.5(E) of the Credit Agreement and (C) if
the Second Capital Call shall have not been previously made, within
thirty (30) days after the Third Test Date, Harvest LP shall, or shall
cause a designee of Harvest LP acceptable to Agent in its sole
discretion to, make the Second Capital Call.
If the Second Capital Call is required to be made pursuant to
this Section 2(e)(i), the following procedures shall apply: Holdings
shall immediately thereafter contribute the entire $5,000,000 amount of
the Second Capital Call to the equity of such Borrower or Borrowers as
Agent may require Such Borrower or Borrowers shall immediately
thereafter apply the entire $5,000,000 amount of the Second Capital
Call to prepay the Term Loans in accordance with subsection 1.5(E) of
the Credit Agreement. After the entire $5,000,000 amount of the Second
Capital Call shall have been so applied to prepay the Term Loans, the
reserve established on the Borrowing Base pursuant to Section 2(a)
shall be removed.
If, however, on or prior to the Third Test Date, the Borrowers
shall have entered into a binding agreement or binding agreements, in
each instance in form and substance reasonably satisfactory to Agent,
providing for the Proposed Transaction, the provisions of clauses (B)
and (C) of the first paragraph of this Section 2(e)(i) shall be
suspended until the earlier of the date on which the Proposed
Transaction occurs and June 30, 2002. If the Proposed Transaction does
not occur on or prior to June 30, 2002, then (x) on June 30, 2002, the
entire $5,000,000 amount of the First Capital Call shall be applied to
prepay the Term Loans in accordance with subsection 1.5(E) of the
Credit Agreement or, if the First Capital Call shall have previously
been so applied, the entire $5,000,000 amount of the Second Capital
Call shall be applied to prepay the Term Loans in accordance with
subsection 1.5(E) of the Credit Agreement, (y) if the Second Capital
Call shall have not been previously made, within thirty (30) days
thereafter, Harvest LP shall, or shall cause a designee of Harvest LP
acceptable to Agent in its sole discretion to, make the Second Capital
Call and (z) all other provisions of the first and second paragraphs of
this Section 2(e)(i) shall apply. If the Proposed Transaction occurs on
or prior to June 30, 2002, then, on and as of the date on which the
Proposed Transaction occurs, the ratio of Senior Indebtedness (as of
March 31, 2002) to EBITDA (for the four Fiscal Quarters ending March
31, 2002) shall be recalculated giving pro forma effect to the Proposed
Transaction. If, after such recalculation, such ratio is greater than
or equal to 3.0 to 1.0, then, (1) on the first Business Day after the
Proposed Transaction occurs,
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the entire $5,000,000 amount of the First Capital Call shall be applied
to prepay the Term Loans in accordance with subsection 1.5(E) of the
Credit Agreement or, if the First Capital Call shall have previously
been so applied, the entire $5,000,000 amount of the Second Capital
Call shall be applied to prepay the Term Loans in accordance with
subsection 1.5(E) of the Credit Agreement, (2) if the Second Capital
Call shall have not been previously made, within thirty (30) days after
the date on which the Proposed Transaction occurs, Harvest LP shall, or
shall cause a designee of Harvest LP acceptable to Agent in its sole
discretion to, make the Second Capital Call and (3) all other
provisions of the first and second paragraphs of this Section 2(e)(i)
shall apply. If, however, after such recalculation, such ratio is less
than 3.0 to 1.0, then, notwithstanding the provisions of the first two
paragraphs of this Section 2(e)(i), the provisions of Section 2(e)(iii)
shall apply from and after the date on which the Proposed Transaction
occurs; or
(ii) subject to the provisions of the second paragraph of this
Section 2(e)(ii), in the event that the ratio of Senior Indebtedness
(as of March 31, 2002) to EBITDA (for the four Fiscal Quarters ending
March 31, 2002) shall be less than 3.0 to 1.0 and the Proposed
Transaction shall not have occurred on or before March 31, 2002, then:
(A) the reserve established on the Borrowing Base pursuant to Section
2(a) shall be removed, (B) on the Third Test Date, the entire
$5,000,000 amount of the First Capital Call shall be applied to prepay
the Term Loans in accordance with subsection 1.5(E) of the Credit
Agreement or, if the First Capital Call shall have previously been so
applied, the entire $5,000,000 amount of the Second Capital Call, if
the Second Capital Call was required to have been made, shall be
applied to prepay the Term Loans in accordance with subsection 1.5(E)
of the Credit Agreement and (C) if Harvest LP shall not have been
previously required to make the Second Capital Call, Harvest LP shall
not thereafter be required to make the Second Capital Call.
If, however, on or prior to the Third Test Date, the Borrowers
shall have entered into a binding agreement or binding agreements, in
each instance in form and substance reasonably satisfactory to Agent,
providing for the Proposed Transaction, the provisions of clauses (B)
and (C) of the first paragraph of this Section 2(e)(i) shall be
suspended until the earlier of the date on which the Proposed
Transaction occurs and June 30, 2002. If the Proposed Transaction does
not occur on or prior to June 30, 2002, then (x) on June 30, 2002, the
entire $5,000,000 amount of the First Capital Call shall be applied to
prepay the Term Loans in accordance with subsection 1.5(E) of the
Credit Agreement or, if the First Capital Call shall have previously
been so applied, the entire $5,000,000 amount of the Second Capital
Call, if the Second Capital Call was required to have been made, shall
be applied to prepay the Term Loans in accordance with subsection
1.5(E) of the Credit Agreement, (y) if Harvest LP shall not have been
previously required to make the Second Capital Call, Harvest LP shall
not thereafter be required to make the Second Capital Call and (z) all
other provisions of the first paragraph of this Section 2(e)(ii) shall
apply. If the Proposed Transaction occurs on or prior to June 30, 2002,
then on and as of the date on which the Proposed Transaction occurs,
the ratio of Senior Indebtedness (as of March 31, 2002) to EBITDA (for
the four Fiscal Quarters ending March 31, 2002) shall be recalculated
giving pro forma effect to the Proposed Transaction. If, after such
recalculation, such ratio is less than 3.0 to 1.0, then,
notwithstanding the provisions of the first paragraph of this Section
2(e)(ii), the
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provisions of Section 2(e)(iii) shall apply from and after the date on
which the Proposed Transaction occurs; or
(iii) in the event that the ratio of Senior Indebtedness (as
of March 31, 2002) to EBITDA (for the four Fiscal Quarters ending March
31, 2002) shall be less than 3.0 to 1.0 and the Proposed Transaction
shall have occurred on or before March 31, 2002 (or, if the
recalculation described in either the third paragraph of Section
2(e)(i) or the second paragraph of Section 2(e)(ii) shall have resulted
in a ratio of Senior Indebtedness to EBITDA of less than 3.0 to 1.0 and
the Proposed Transaction shall have occurred on or before June 30,
2002), then: (A) the reserve established on the Borrowing Base pursuant
to Section 2(a) shall be removed and either (B) if Harvest LP shall not
have been previously required to make the Second Capital Call, Harvest
LP shall not thereafter be required to make the Second Capital Call and
the equity securities issued to Harvest LP or its designee in exchange
for the First Capital Call shall be subject to redemption subject to
the satisfaction of the conditions precedent set forth in Section 2(f)
or (C) if Harvest LP shall have been previously required to make, and
shall have previously made or shall have previously caused its designee
acceptable to Agent in its sole discretion to make, the Second Capital
Call, the equity securities issued to Harvest LP or its designee in
exchange for the Second Capital Call (but not any equity securities
issued in exchange for the First Capital Call) shall be subject to
redemption subject to the satisfaction of the conditions precedent set
forth in Section 2(f).
(f) The equity securities (including any additional shares of such
equity securities issued as a dividend thereon) issued to Harvest LP or its
designee in exchange for either the First Capital Call or the Second Capital
Call shall be subject to redemption only upon the satisfaction of each of the
following additional conditions precedent:
(i) in the case of any equity securities (including any
additional shares of such equity securities issued as a dividend
thereon) issued in exchange for the First Capital Call, the
circumstances set forth in either Section 2(c)(ii) or Section
2(e)(iii)(B) shall have occurred or, in the case of any equity
securities (including any additional shares of such equity securities
issued as a dividend thereon) issued in exchange for the Second Capital
Call, the circumstances set forth in Section 2(e)(iii)(C) shall have
occurred;
(ii) the Borrowers shall have entered into a binding agreement
or binding agreements, in each instance in form and substance
reasonably satisfactory to Agent, on or before the Third Test Date
providing for the Proposed Transaction and the Proposed Transaction
shall have occurred on or before June 30, 2002;
(iii) the Borrowers shall be in compliance with all of the
covenants set forth in Section 4 of the Credit Agreement, both before
and after giving effect on a pro forma basis to the making of such
redemption;
(iv) the ratio of Senior Indebtedness (as of the last day of
the Fiscal Quarter immediately preceding the date of such redemption)
to EBITDA (for the four Fiscal Quarters ending on the last day of the
Fiscal Quarter immediately preceding the
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date of such redemption) shall be less than 3.0 to 1.0, both before and
after giving effect on a pro forma basis to the making of such
redemption;
(v) EBITDA for the four Fiscal Quarters ending on the last day
of the Fiscal Quarter immediately preceding the date of such redemption
shall be equal to at least $22,000,000;
(vi) the redemption shall have occurred on or before August
31, 2002; and
(vii) no Default or Event of Default shall have occurred and
be continuing on the date of such redemption or would result from such
redemption.
All such equity securities shall otherwise contain terms and conditions
and be in form and substance satisfactory in all respects to Agent.
(g) For purposes of this Section 2, "EBITDA" will be calculated as
illustrated on Exhibit 4.7(D) to the Credit Agreement and "Senior Indebtedness"
means all Indebtedness of the Loan Parties other than (x) Indebtedness under the
Senior Subordinated Notes and (y) Indebtedness related to leases (other than
capital leases and other leases treated as a loan or financing for creditors'
rights purposes); provided, however, that solely for purposes of calculating
Senior Indebtedness, the outstanding principal amount of the Term Loans as
determined at the time of the consummation of the Proposed Transaction shall be
reduced by no more than $11,000,000 of Net Proceeds from the Proposed
Transaction.
3. For so long as this Agreement is in effect, (a) Harvest LP shall
maintain funds in cash or Cash Equivalents in an aggregate amount equal to at
least $5,000,000 and (b) on the last day of each of March, June, September and
December of each year, Harvest LP shall deliver to Agent and Lenders such
statements or records as shall be requested by Agent and Lenders to evidence
that Harvest LP is in compliance with the covenant set forth in clause (a)
above.
4. To induce Agent to enter into this Agreement on behalf of itself and
Lenders, Harvest LP represents and warrants to Agent and each of the Lenders as
follows:
(a) Harvest LP is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. Harvest
LP has all requisite power and authority to enter into this Agreement, to make
the Capital Calls and to otherwise satisfy each of its obligations under this
Agreement.
(b) The execution, delivery and performance of this Agreement
(including, without limitation, the making of the Capital Calls) by Harvest LP
(i) has been duly authorized by all necessary partnership action on the part of
Harvest LP, (ii) will not violate or conflict with any law, rule, regulation,
order, writ, judgment, injunction or decree applicable to Harvest LP and (iii)
will not violate, breach, conflict with, or result in a default under the
certificate of limited partnership or limited partnership agreement of Harvest
LP or any other agreement, instrument or document by which Harvest LP is bound
or to which it or any of its properties is subject.
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(c) This Agreement constitutes the legally valid and binding
obligation of Harvest LP, enforceable against Harvest LP in accordance with its
terms.
5. The obligations of the parties hereto shall not be released by any
amendment, modification or waiver of, or other change to, the Credit Agreement.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns, provided that
Harvest LP shall not assign any of its obligations hereunder without the prior
written consent of Agent, which consent may be withheld in Agent's sole
discretion.
6. This Agreement shall be governed by the internal laws of the State
of New York, without giving effect to its conflicts of laws principles.
7. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute the same instrument. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier shall
be as effective as delivery of a manually executed counterpart of this
Agreement.
[Signature pages follow]
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Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
XXXXXX FINANCIAL, INC., as Agent
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
HARVEST PARTNERS III, L.P.
By: /s/ Xxx Xxxxxxxx
--------------------------
Name: Xxx Xxxxxxxx
Title: Partner
XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
XXXX INDUSTRIES, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DEFLECTA-SHIELD CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
BELMOR AUTOTRON CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DFM CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
AUTO VENTSHADE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
SMITTYBILT, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
ACKNOWLEDGED AND CONSENTED
TO BY THE OTHER GUARANTORS:
XXXX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
BAC ACQUISITION CO.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
TRAILMASTER PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
DELTA III, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
