EXHIBIT (b)(2)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement dated as of July
29, 2005 among XX XXXX'X INCORPORATED, PLANT ENGINEERING CONSULTANTS, LLC, and
XX XXXX'X ENTERPRISES, INC. (collectively, the "Borrowers," and individually, a
"Borrower"), XX XXXX'X CORPORATION ("Parent") and X.X. XXXX'X CANADA, LTD.
(collectively with Parent, the "Guarantor," and individually, a "Guarantor"),
the financial institutions which are now or which hereafter become a party
hereto (collectively, the "Lenders," and individually a "Lender"), MANUFACTURERS
AND TRADERS TRUST COMPANY, as collateral agent (in such capacity, the
"Collateral Agent"), and MANUFACTURERS AND TRADERS TRUST COMPANY, as funding
agent for Lenders (in such capacity, the "Funding Agent").
BACKGROUND
A. Borrowers, Agent, and the Lenders signatory thereto (each such
Lender individually, an "Existing Lender," and collectively, "Existing Lenders")
are parties to a certain Loan and Security Agreement, dated as of January 7,
2005 (as it has been and may hereafter be amended, supplemented, replaced,
restated or otherwise modified from time to time, the "Loan Agreement"),
pursuant to which such Lenders established certain financing arrangements for
Borrowers.
B. Borrowers have requested that Collateral Agent and Lenders modify
certain terms and provisions of the Loan Agreement. PNC Bank, National
Association and National City Bank of Pennsylvania ("Transferor Lenders")
declined to approve the requested modifications. M&T Bank ("Remaining Lender")
is willing to make certain modifications to the Loan Agreement in accordance
with the terms hereof.
C. North Fork Business Capital Corporation ("Purchasing Lender"), which
is not an Existing Lender, is willing to become a party Lender to the Loan
Agreement (as amended hereby) and to assume a loan share and Commitment
Percentage set forth on the signature page hereto, provide a payment to the
Transferor Lenders on the Effective Date (defined below) in an amount set forth
on Schedule 1 to the Commitment Transfer Supplement referred to below (equal to
its Commitment Percentage of the outstanding Loans) and otherwise exercise the
rights, receive the benefits and be subject to all of the obligations of a
Lender under the Loan Agreement.
D. Contemporaneously herewith but deemed to be effective immediately
prior to the execution and delivery of this Amendment, the Existing Lenders,
Purchasing Lender, Remaining Lender and the Collateral Agent have executed a
Commitment Transfer Supplement pursuant to which the loan share of the
Transferor Lenders is assigned and transferred to Purchasing Lender and
Remaining Lender in the amounts and under the terms set forth therein. Upon such
effectiveness thereof, the Remaining Lender and the Purchasing Lender shall be
deemed to be the Lenders for all purposes hereunder. The parties confirm that in
conjunction with the completion of the foregoing transfers interest and fees
through the date hereof associated with the Revolving Advances and Term Loans
have been paid.
E. Capitalized terms used but not otherwise defined herein shall have
the meanings given to such terms in, or by reference in, the Loan Agreement.
NOW, THEREFORE, with the foregoing Background hereinafter incorporated
by reference, the parties hereto, intending to be legally bound hereby, promise
and agree as follows:
1. CONFIRMATION OF INDEBTEDNESS: Borrowers confirm and acknowledge that
as of the close of business on July 29, 2005, they are jointly and severally
indebted to Lenders under the Loan Documents, without any deduction, defense,
setoff, claim or counterclaim of any nature, in the aggregate principal amount
of $5,583,106.27 with respect to cash Revolving Advances, $6,908,958.84 with
respect to the undrawn amount of all outstanding Letters of Credit (which are
listed on Schedule A attached hereto), $9,180,000 with respect to Term Loan A,
and $2,250,000 with respect to Term Loan B, plus all accrued interest, fees,
costs and expenses (including attorneys' fees) incurred to date in connection
with the Loan Documents.
2. AMENDMENTS: All of the following amendments to the Loan Agreement
are effective as of the Effective Date (defined below):
(a) Section 1.2 of the Loan Agreement is modified in the following
respects:
(i) The definition of "Earnings Before Interest and Taxes"
therein is deleted in its entirety and is replaced by the following:
"Earnings Before Interest and Taxes" shall mean, for any
referenced period, the sum of (i) net income (or loss) on
a consolidated basis of Parent and its Subsidiaries for
such period (excluding extraordinary gains and
extraordinary non-cash losses, gains or losses from asset
sales, post retirement benefit amortization (including any
accelerated amortization) resulting in income or gains,
and non-cash stock expense), plus (ii) all interest
expense on a consolidated basis of Parent and its
Subsidiaries for such period, plus (iii) all charges
against income of Parent and its consolidated Subsidiaries
for such period for federal, state and local taxes.
(ii) The definition of "Fixed Charge Coverage Ratio" therein
is deleted in its entirety and is replaced by the following:
"Fixed Charge Coverage Ratio" shall mean and include, with
respect to any measurement period, the ratio of (a) EBITDA
during such period, minus Capital Expenditures not
financed by Persons other than Lenders (under this
Agreement) during such period, to (b) all Senior Debt
Payments scheduled or otherwise due during such period,
plus cash taxes paid during such period, plus cash
dividends paid by Parent during such period.
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(iii) The definition of "Initial Interest Adjustment Date"
therein is deleted in its entirety and is replaced by the following:
"Initial Interest Adjustment Date" means the first day of
the month following the month during which Lenders shall
have received the quarterly financial statements required
to be delivered pursuant to Section 9.8 for the fiscal
quarter ending on or about September 30, 2005.
(iv) The definition of "Senior Debt Payments" therein is
deleted in its entirety and is replaced by the following:
"Senior Debt Payments" shall mean and include (a) required
interest payments on any Advances hereunder, plus (b)
scheduled payments of principal with respect to the Term
Loans, plus (c) payments due in respect to Capitalized
Lease Objections, plus (d) all principal and interest
payments due with respect to any other Indebtedness for
borrowed money (including without limitation for such
purposes payments on the Approved Sub Debt, but excluding
payments to any Loan Party or Affiliate with respect to
Indebtedness for borrowed money).
(v) The definition of "Required Lenders" therein is deleted in
its entirety and is replaced by the following:
"Required Lenders" shall mean Lenders which hold at least
two-thirds (66-2/3%) of the Advances and, if no Advances
are outstanding, shall mean Lenders which hold two-thirds
(66-2/3%) of the Aggregate Revolving Credit Commitments;
provided, however, if there are fewer than three (3)
Lenders, Required Lenders shall mean all Lenders.
(vi) The following new definitions shall be added to such
Section (in their appropriate alphabetical order):
"Approved Sub Debt" shall have the meaning given thereto
in the First Amendment.
"Borrowing Base Availability" shall mean the difference
between (i) the lesser of (A) the Maximum Revolving
Advance Amount and (B) formula borrowing availability
under Sections 2.1(a)(y)(i) and (ii), and (ii) the sum of
(A) the outstanding Revolving Advances, (B) the
outstanding Letters of Credit and (C) all reserves of
every kind applicable to the revolving credit facility in
accordance with Section 2.1(a)(iii)(B).
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"First Amendment" shall mean that certain First Amendment
to Loan and Security Agreement dated July 29, 2005 among
Borrower, Collateral Agent and the Lenders party thereto.
"First Amendment Effective Date" shall mean July 29, 2005.
"Sub Debt Closing Date" shall have the meaning given
thereto in the First Amendment.
"Sub Debt Stock Payment" shall have the meaning given
thereto in the First Amendment.
(b) Section 3.1(b) of the Loan Agreement is amended to delete the
matrix contained therein and replace it with the following matrix:
------------------------------------------------------------------------------------------------------------------------
LEVERAGE RATIO REVOLVING ADVANCES TERM LOAN A TERM LOAN B LETTER OF CREDIT FEE
-------------- ------------------ ----------- ----------- --------------------
--------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Less than 2.0 to 1 Alternate Base Rate Alternate Base Rate Alternate Base Rate 250 basis points
+ 100 basis points + 125 basis points + 275 basis points
Eurodollar Rate Eurodollar Rate + 275 Eurodollar Rate
+ 250 basis points basis points + 425 basis points
--------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Equal to or greater Alternate Base Rate Alternate Base Rate Alternate Base Rate 300 basis points
than 2.0 to 1 but less + 150 basis points + 175 basis points + 275 basis points
than or equal to 3.0 to 1 Eurodollar Rate Eurodollar Rate + 325 Eurodollar Rate
+ 300 basis points basis points + 425 basis points
--------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Greater than 3.0 to 1 Alternate Base Rate Alternate Base Rate Alternate Base Rate 325 basis points
but less than or equal + 175 basis points + 200 basis points + 275 basis points
to 3.5 to 1 Eurodollar Rate Eurodollar Rate + 350 Eurodollar Rate
+ 325 basis points basis points + 425 basis points
--------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Greater than 3.5 to 1 Alternate Base Rate Alternate Base Rate Alternate Base Rate 350 basis points
+ 000 xxxxx xxxxx + 200 basis points + 275 Basis points
Eurodollar Rate Eurodollar Rate + 375 Eurodollar Rate
+ 350 basis points basis points + 450 basis points
------------------------------------------------------------------------------------------------------------------------
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(c) Section 6.5(b) of the Loan Agreement is modified to delete
clause (ii) therein and replace it with the following:
"(ii) of not less than $20,786,000 as of March 31, 2005,
and (iii) as of June 30, 2005 and as of the end of each
subsequent fiscal quarter thereafter, not less than
$27,000,000 (less the actual amount of the Sub Debt Stock
Payment and any reversal, net of its tax effect, of the
gain initially recognized for the 12/31/04 fiscal year for
the curtailment of the post retirement benefits plan as
contained in the Parent's Annual Report on Form 10-K filed
on March 23, 2005), to be permanently increased (as of the
end of each such quarter, commencing as of June 30, 2005)
by an amount equal to 50% of Parent's consolidated Net
Income (if positive) for the quarter then ending."
(d) Section 6.5(c) of the Loan Agreement is modified to amend the
chart therein, as to all measurements to be made after March 31, 2005, to
provide the following:
Fiscal Quarters Ending Leverage Ratio
---------------------- --------------
June 30, 2005 4.50 to 1
September 30, 2005 4.25 to 1
December 31, 2005 4.00 to 1
Each fiscal quarter thereafter 3.75 to 1
(e) Section 6.5(d) of the Loan Agreement is modified, as to all
measurements to be made after March 31, 2005, to provide the following:
Period Adjusted EBITDA
------ ---------------
10/1/04 through 6/30/05 $6,300,000
10/1/04 through 9/30/05 8,500,000
Four quarters ending 12/30/05 9,000,000
Four quarters ending 3/31/06 9,500,000
Four quarters ending each fiscal quarter $10,000,000
thereafter
(f) Section 6.5 (e) of the Loan Agreement is modified to provide
that for the fiscal year ending December 31, 2005 and each fiscal year
thereafter the per annum maximum permitted Capital Expenditures shall be
$3,250,000.
(g) Section 7.5 of the Loan Agreement is amended to delete clause
(c) therein and replace it with the following:
"(c) loans by Borrowers to Industrial Blaju S.A., de C.V.
Mexico City, Mexico provided that (i) the aggregate
outstanding amount thereof does not at any time exceed the
lesser of (A) $5,000,000 or (B) the outstanding amount
thereof on the First Amendment Effective Date plus
$2,500,000, (ii) the amounts advanced in any consecutive
twelve (12) month period do not exceed $1,500,000 in the
aggregate, and (iii) no loan may be made (A) if an Event
of Default is then outstanding or (B) Undrawn Availability
is less than $1,000,000 after taking into account any such
proposed loan."
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(h) Section 7.6 of the Loan Agreement is deleted in its entirety and
replaced by the following:
7.6 "Dividends and Other Restricted Payments. Parent shall
not declare, pay or make any dividend or distribution on
any shares of the common stock or preferred stock of such
Person (other than dividends or distributions payable in
its stock, or split-ups or reclassifications of its stock)
or apply any of its funds, property or assets to the
purchase, redemption or other retirement of any common or
preferred stock, or of any options to purchase or acquire
any such shares of common or preferred stock of such
Person, except Parent may declare and pay cash dividends
on shares of its common stock in an aggregate amount not
to exceed $465,000 in any fiscal quarter (on a
non-cumulative basis), so long as (i) no Default or Event
of Default has occurred and is continuing or would result
after giving effect to such dividends, (ii) Borrowers then
have Undrawn Availability in excess of $2,000,000 and also
have Thirty Day Undrawn Availability in excess of
$2,000,000 after giving effect to such dividends, (iii)
Parent shall have achieved a positive consolidated EBITDA
of at least $5,000,000 for the two (2) consecutive fiscal
quarter period preceding the date any such dividend is to
be paid, (iv) as to any dividend declared with respect to
the quarter ending September 30, 2005, Parent shall have
achieved a positive consolidated EBITDA of at least
$9,300,000 for the four (4) consecutive fiscal quarter
period preceding the date any such dividend is declared,
and (v) as to any dividend declared with respect to the
quarter ending December 31, 2005, or each quarter
thereafter, Parent shall have achieved a positive
consolidated EBITDA of at least $10,000,000 for the four
(4) consecutive fiscal quarter period preceding the date
any such dividend is declared, provided, however, that
following the Sub Debt Closing Date (A) the number
"465,000" in this Section 7.6 shall be changed to
"425,000", (B) the number "$5,000,000" in this Section 7.6
shall be changed to "$6,000,000 (to be reduced, as of the
earlier of (x) the final drawdown date under the Approved
Sub Debt or (y) the date of Collateral Agent's receipt of
written notice from Borrowers that no further drawdown of
the Approved Sub Debt will occur, by $100,000 for each
$1,000,000 by which the actual total borrowed amount of
the Approved Sub Debt is less than $15,000,000, provided
that the total reduction under this parenthetical, if
applicable, shall not exceed $500,000)," and (C) clauses
(iv) and (v) above in this Section 7.6 shall be deleted
and be of no further force and effect. "
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(i) Section 13.1 of the Loan Agreement is amended to delete the date
"January 30, 2007 in the 4th line thereof and replace it with the date
"April 1, 2009".
(j) Section 15.2(b)(ii) of the Loan Agreement is deleted in its
entirety and is replaced by the following:
"(ii) extend the maturity of any Note or the due date of
any amount payable hereunder, change the amortization
schedule of either of the Loans, decrease the rate of
interest or reduce any fee payable by Loan Parties to
Lenders pursuant to this Agreement, or forgive any of the
Advances."
3. SUBORDINATED INDEBTEDNESS: Notwithstanding anything to the contrary
contained in Section 7.7 of the Loan Agreement, Borrowers shall be entitled, on
or before September 30, 2005 ("Permitted Sub Debt Closing Date"), to obtain an
unsecured loan of not more than $15,000,000 ("Approved Sub Debt") more
specifically described in the term sheet dated as of July 12, 2005 previously
provided to the Collateral Agent (a copy of which is attached hereto and marked
Exhibit A) so long as in respect of such Approved Sub Debt (a) interest shall
accrue at a rate not greater than 12% per annum (plus an additional 2% per annum
so long as an event of default is outstanding under the Approved Sub Debt), (b)
principal shall become due not earlier than 7 years from the closing date
thereunder (the "Sub Debt Closing Date"), (c) all agreements related thereto
(including without limitation provisions containing financial covenants which
shall be less restrictive than those in the Loan Agreement and acceptable to
Lenders) shall in all events be acceptable to Lenders, (d) Borrowers'
obligations with respect thereto shall be subordinated to the Obligations
pursuant to a subordination agreement acceptable to Lenders and executed with
Collateral Agent, (e) no prepayments may be made of the Approved Sub Debt (1)
except as may be expressly permitted under the subordination agreement
referenced in clause (d) above or (2) otherwise without the prior written
consent of Lenders, (f) funding of the Approved Sub Debt may occur in two (2)
tranches, the first funding being on or before the Permitted Sub Debt Closing
Date and the second funding (assuming the first funding timely occurs) not to
exceed $5,000,000 and not occurring not more than one (1) year after the first
funding, (g) up to but not more than $11,000,000 of the total proceeds thereof
may be used, within five (5) Business Days of the funding thereof, to repurchase
common stock of Parent (the total purchase price being the "Sub Debt Stock
Payment"), (h) that portion of the Sub Debt Stock Payment used to pay directors
and officers who tender their shares may not exceed $100,000, (i) the proceeds
of the Approved Sub Debt must be sufficient to cover, and on the date of the
first funding thereof shall be used to repay, Term Loan B (with accrued interest
thereon) in full and transaction expenses related to the Approved Sub Debt, (j)
the proceeds of the Approved Sub Debt which are not used for the Sub Debt Stock
Payment, repayment of Term Loan B and applicable transaction expenses may not,
in the aggregate, exceed $3,000,000 and may only be used for working capital
(i.e., repay Revolving Advances), (k) Borrowing Base Availability shall not be
less than $3,000,000 on each date of funding of the Approved Sub Debt after
taking into account funding of the Approved Sub Debt and the use of proceeds
thereof, and (l) no Event of Default is outstanding on each date of funding
thereof. Borrowers shall be entitled to obtain an extension from Lenders of the
Permitted Sub Debt Closing Date to a date not later than December 31, 2005,
provided that (A) no Event of Default is outstanding, (B) Borrowers notify
Collateral Agent on or before September 25, 2005 that such extension is sought,
and (C) no additional fee shall be charged by Lenders in respect of any such
extension.
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4. CONFIRMATION OF SECURITY INTERESTS: Loan Parties confirm and agree
that all prior security interests and liens granted to Collateral Agent and/or
Lenders shall continue unimpaired and in full force and effect and shall
continue to cover and secure all Obligations. Loan Parties further confirm and
represent that all Collateral of each of them remains free and clear of all
liens other than those in favor of Collateral Agent and/or Lenders or as
otherwise expressly permitted in the Loan Agreement. Nothing contained herein is
intended to in any way impair or limit the validity, priority or extent of
Collateral Agent's and/or Lenders' security interest in and liens upon the
Collateral of any Loan Party.
5. GUARANTEES: Execution of this Amendment by a Guarantor reflects the
approval of such Guarantor to this Amendment and the unconditional
acknowledgement by such Guarantor that such Guarantor's Surety Agreement
executed in favor of Collateral Agent and Lenders remains in full force and
effect in accordance with its terms (after taking into account modifications to
the Loan Agreement reflected by this Amendment.
6. FEES: On the Effective Date, Borrowers shall pay Collateral Agent,
for the pro rata benefit of Lenders, an amendment facility fee equal to 37.5
basis points of each Lender's respective Revolving Loan Commitment and share of
the unpaid principal balance of Term Loan A and Term Loan B ("Amendment Facility
Fee").
7. EFFECTIVENESS CONDITIONS; EFFECTIVE DATE:
(a) This Amendment shall be effective upon completion of the
following conditions precedent (all documents to be in form and substance
satisfactory to Collateral Agent):
(i) execution and delivery to Collateral Agent of this
Amendment by all parties hereto;
(ii) execution and delivery to Collateral Agent (on behalf of
each Lender) of an Amended and Restated Promissory Note with respect to
each of the Revolving Credit Commitment, Term Loan A and Term Loan B
for such Lender (which, upon delivery thereof, shall replace the
existing Notes in favor of the Existing Lenders but not satisfy,
release or impair any outstanding obligations thereunder and shall
hereinafter be deemed to constitute the Notes for such Lender
referenced in the Loan Agreement);
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(iii) certified copies of the resolutions, as appropriate, for
each Borrower and each Guarantor authorizing the execution, delivery
and performance of this Amendment;
(iv) payment to Collateral Agent on behalf of Lenders of the
Amendment Facility Fee;
(v) execution and delivery of the Commitment Transfer
Supplement referenced in Background paragraph D; and
(vi) Borrowing Base Availability shall not be less than
$3,000,000. The date on which all of the conditions precedent set forth
in this Section 7(a) shall have been satisfied or waived (in writing)
by Collateral Agent is referred to herein as the "Effective Date."
(b) On the Effective Date, pursuant to the Commitment Transfer
Supplement referred to Background paragraph D above, Transferor Lenders
have assigned and transferred, and Purchasing Lender has assumed;
(i) such portion of the outstanding Loans and Letters of
Credit applicable to Purchasing Lender's Commitment Percentage; and
(ii) all rights and obligations of Transferor Lenders under
the Loan Agreement and the other Loan Documents with respect thereto.
As of and after the Effective Date, Purchasing Lender shall constitute
a Lender and shall have all of the rights and obligations of a Lender
under the Loan Agreement and the other Loan Documents to the extent of
Purchasing Lender's Commitment Percentage. Purchasing Lender shall be
deemed to have acquired an undivided participation interest, in
accordance with its Commitment Percentage, in each Letter of Credit
outstanding on the Effective Date and all Letter of Credit
participation interests shall be held by all Lenders pro rata based
upon their respective Commitment Percentage set forth on the signature
pages hereto.
(c) The parties hereto acknowledge and agree that PNC Bank, National
Association has resigned as Administrative Agent effective as of the
Effective Date and that no successor Administrative Agent is being
appointed.
8. REPRESENTATIONS AND WARRANTIES: Borrowers represent and warrant to
Collateral Agent and Lenders that:
(a) The execution, delivery and performance by Borrowers of this
Amendment and the transactions contemplated herein: (i) are and will be
within their powers; (ii) have been authorized by all necessary action on
behalf of Borrowers; (iii) are not and will not be in contravention of any
order or decree of any court or other agency of government, or of any law
to which Borrowers or any property of Borrowers is/are bound; and (iv) are
not and will not be in conflict with, or result in a breach of or
constitute (with due notice and/or lapse of time) a default under the
articles of organization or by-laws of each Borrower, or any indenture,
agreement or undertaking to which any Borrower is a party or by which any
Borrower or any property of any Borrower bound;
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(b) This Amendment and any other agreements, instruments or
documents executed and/or delivered in connection herewith, shall be valid,
binding and enforceable against each Borrower in accordance with their
respective terms;
(c) There has been no change in the organizational or governance
documents for any Borrower or any Guarantor since January 7, 2005;
(d) Each of the representations and warranties contained in, and
each of the exhibits and/or schedules attached to, the Loan Agreement, as
amended hereby, and other Loan Documents are true, correct and complete in
all material respects as of the date hereof;
(e) No Event of Default or event or condition which with the giving
of notice or passage of time or both would become an Event of Default has
occurred and is presently outstanding.
9. EXPENSES: Borrowers confirm that they are jointly and severally
obligated to pay or reimburse Collateral Agent for all expenses (including,
without limitation, reasonable attorneys' fees) incurred by Collateral Agent to
analyze, prepare and negotiate and conclude this Amendment and all related
agreements and transactions described herein.
10. NON-WAIVER: This Amendment does not obligate Collateral Agent or
Lenders to agree to any other extension or modification of the Loan Agreement
and does not constitute a course of conduct or dealing on behalf of Collateral
Agent and/or Lenders or a waiver of any other rights or remedies of Collateral
Agent or Lenders. No omission or delay by Collateral Agent and/or Lenders in
exercising any right or power under the Loan Documents, this Amendment or any
related instruments, agreements or documents will impair such right or power or
be construed to be a waiver of any default or Event of Default or an
acquiescence therein, and any single or partial exercise of any such right or
power will not preclude other or further exercise thereof or the exercise of any
other right, and no waiver will be valid unless in writing and then only to the
extent specified.
11. INCORPORATION: This Amendment is incorporated by reference into,
and made part of, the Loan Agreement which, except as expressly modified herein,
remains in full force and effect in accordance with its terms.
12. NO MODIFICATION: No modification of this Amendment or of any
agreement referred to herein shall be binding or enforceable unless in writing
and signed on behalf of the party against whom enforcement is sought.
13. HEADINGS: The headings of any section or paragraph of this
Amendment are for convenience only and shall not be used to interpret any
provision of this Amendment.
14. SUCCESSORS AND ASSIGNS: This Amendment will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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15. GOVERNING LAW: This Amendment shall be governed by, and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
excluding its conflict of laws rule.
16. SEVERABILITY: The provisions of this Amendment are to be deemed
severable, and the invalidity or unenforceability of any provision shall not
affect or impair the remaining provisions which shall continue in full force and
effect.
17. EXECUTION BY COUNTERPARTS AND FACSIMILE: This Amendment may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature delivered by facsimile shall also bind the
parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, THIS AMENDMENT IS HEREBY EXECUTED ON THE DATE FIRST
ABOVE WRITTEN.
BORROWERS: X.X. XXXX'X INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
PLANT ENGINEERING CONSULTANTS, LLC
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer and Secretary
X.X. XXXX'X ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
LENDERS: MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Commitment Percentage: 66.37%
NORTH FORK BUSINESS CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Commitment Percentage: 33.63%
COLLATERAL AGENT: MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
APPROVAL OF GUARANTORS
(to Amendment to Loan and Security Agreement)
XX XXXX'X CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
X.X. XXXX'X CANADA LTD.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer and Secretary