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EXHIBIT 10.10.3
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"),
dated as of August 12, 1999, is entered into among XXXXXXXX MANUFACTURING
COMPANY, a Texas corporation (the "Borrower"), the lenders listed on the
signature pages hereof (collectively, the "Lenders"), and BANK OF AMERICA, N.A.
(formerly known as Bank of America National Trust and Savings Association,
successor by merger to Bank of America, N.A., formerly known as NationsBank,
N.A., successor by merger to NationsBank of Texas, N.A.), as the Administrative
Agent (in said capacity, the "Administrative Agent").
A. The Borrower, the Lenders and the Administrative Agent are parties
to that certain Credit Agreement, dated as of September 19, 1997, as amended by
that certain First Amendment to Credit Agreement, dated as of February 10,
1999, an that certain Second Amendment to Credit Agreement, dated as of May 14,
1999 (the "Credit Agreement"; the terms defined in the Credit Agreement and not
otherwise defined herein shall be used herein as defined in the Credit
Agreement).
B. The Borrower, the Lenders and the Administrative Agent desire to
amend the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower,
the Lenders and the Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Temporary Credit Facility" is hereby added to
Section 1.1 of the Credit Agreement in the proper alphabetical order to read as
follows:
"Temporary Credit Facility" means the $10,000,000 revolving
credit facility scheduled to mature on February 1, 2000, extended
pursuant to the terms of that certain Credit Agreement, dated as of
August 6, 1999, among the Borrower, Bank of America, N.A., as
administrative agent (the "Temporary Credit Facility Agent"), and the
lenders party thereto, as amended, modified or supplemented from time
to time, but in no event to be for a principal amount in excess of
$10,000,000.
(b) The definition of "Temporary Credit Facility Liens" is hereby
added to Section 1.1 of the Credit Agreement in proper alphabetical order to
read as follows:
"Temporary Credit Facility Liens" means the Liens granted in
favor of the Temporary Credit Facility Agent to secure the obligations
of the Borrower under the Temporary Credit Facility, which Liens shall
at all times be junior and second to any and all Liens granted
pursuant to the Credit Agreement.
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(c) The definition of "Permitted Liens" set forth in Section 1.1 of
the Credit Agreement is hereby amended by (i) deleting "and" at the end of
clause (m) thereof, (ii) re-lettering clause (n) thereof as "(o)" and (iii)
adding a new clause (n) thereto to read as follows:
"(n) The Temporary Credit Facility Lien; and"
(d) Section 7.1 of the Credit Agreement is hereby amended by (i)
deleting "and" at the end of clause (l) thereof, (ii) adding "and" at the end
of clause (m) thereof, and (iii) adding a new clause (n) thereto to read as
follows:
"(n) Indebtedness in respect of the Temporary Credit
Facility;"
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, the Borrower represents and warrants
that, as of the date hereof and after giving effect to the amendments
contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as if made on and
as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default except that the Borrower may be not be in
compliance with the financial covenants set forth in Sections 7.11, 7.12 and
7.13 of the Credit Agreement for the fiscal quarter ending June 30, 1999;
(c) the Borrower has full power and authority to execute and deliver
this Third Amendment, and this Third Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable debtor relief laws
and by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to indemnity
may be limited by federal or state securities laws; and
(d) no authorization, approval, consent, or other action by, notice
to, or filing with, any governmental authority or other Person (including the
Board of Directors of the Borrower), is required that has not been obtained for
the execution, delivery or performance by the Borrower of this Third Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be
effective as of August 12, 1999, subject to the following:
(a) the Administrative Agent shall have received a counterpart of this
Third Amendment executed by Lenders comprising the Determining Lenders;
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(b) the Administrative Agent shall have received counterparts of this
Third Amendment executed by the Borrower;
(c) the representations and warranties set forth in Section 5 of this
Third Amendment shall be true and correct; and
(d) the Administrative Agent and the Lenders shall have received in
form and substance satisfactory to the Administrative Agent and the Lenders,
such other documents and certificates as the Administrative Agent shall
require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
by this Third Amendment.
(b) The Credit Agreement, as amended by this Third Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with
the preparation, reproduction, execution and delivery of this Third Amendment,
and the other instruments and documents to be delivered hereunder (including
the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Credit
Agreement, as amended by this Third Amendment).
6. EXECUTION IN COUNTERPARTS. This Third Amendment 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 to
be an original and all of which when taken together shall constitute but one
and the same instrument.
7. GOVERNING LAW; BINDING EFFECT. This Third Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon the Borrower and each Lender and their respective
successors and assigns.
8. HEADINGS. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Third Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AS TO THE SUBJECT MATTER
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THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first above written.
BORROWER: XXXXXXXX MANUFACTURING COMPANY
By:
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Name:
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Title:
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A. as the
Administrative Agent
By:
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Name:
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Title:
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LENDERS: BANK OF AMERICA, N.A., as a Lender,
Swing Line Bank and Issuing Bank
By:
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Name:
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Title:
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ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC
As Collateral Manager
By:
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Name:
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Title:
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COMERICA BANK-TEXAS
By:
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Name:
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Title:
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HSBC BANK USA
(formerly known as Marine Midland
Bank)
By:
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Name:
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Title:
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IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By:
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Name:
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Title:
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CREDITANSTALT CORPORATE FINANCE, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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FLEET CAPITAL CORPORATION
By:
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Name:
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Title:
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XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By:
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Name:
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Title:
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KZH SOLEIL LLC
By:
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Name:
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Title:
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XX XXX XXX XXXXXXX XXXXXXX (XXXXXX)
LTD.
By: Pilgrim Investments, Inc., as
its Investment Manager
By:
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Name:
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Title:
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ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management,
L.P., as Collateral Manager
By:
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Name:
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Title:
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